Petition for Writ of Certiorarim — Travis v. United States

Supreme Court brief1967

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a UPREME Cevr®, U, Ee

IN THE

JAN 28 1966

Supreme Court of. the ‘Unithd Sta iat

ee ne

RE <7

. ¥ a “ ol bal) >

HELEN MAXINE Levt TRAVIS, ~ = .

Petitioner,

Ej us eehen

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

Joun T. McTERNan, |

A. L. Wirtn, ; sy

3175 West Sixth tices

Los Angeles, Calif. 90005,

Attorneys for Petitioner.

. s

WitiaM B. MurrisH,

Of Counsel.

Parker & Son, Inc., Law Printers, Los Angeles. Phone MA. 6-9171.

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at beaten cnet oad ss rye—crne ean amagemeeenenememer genres

Opinions below ; ce

. Statutory provisions involvéd ..

' Reasons ‘for granting the writ ...

ES ee NS TOAD ES GEE DOO I LOD OME ON gn IE OG EE A On EE. PND, lg OO IE

SUBJECT INDEX, |” Le

—~ 4.

Jurisdiction .... ane ‘ x

Questions presented :

Statement of the case » . -

Introduction és

| a

: aes did not by Section 1185 authorize is- —

suance of criminal-sanction area travel bans .. 13

, II. 2 5)

To enteatds the “Excluding Cuba” regulation _

under Section 1185 with criminal sanctions in

the premises at bar would violate due process ;

for vagueness, ‘contradiction and misleading

‘terms in the communication of a criminal

' command ‘ : 21

\ a 7

ulated unr Secon 1185 Snsisiby rt go + See

adequate or any standards esccseass ae

— “ Rae : : as!

9 > ~ te A bl

. ’ ie ute , a

aed ae Sa me tek ett

a Chat cae

il,

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a WV: Page -

_-Consttued to authorize the “Excluding Cuba”

+ fegulation at bar, Section 1185 deprives peti-

tioner of personal liberty and of freedom of

speech, thought and association oy to

the First and Fifth Amendments

VI.

Petitioner departed not for Cuba but for

Mexico, and without even prior request for

permission to enter Cuba; properly construed

and constitutionally limited, Section 1185 does

not reach such a departure

No sufficient presidential proclamation of emer-

gency exists to support the “Excluding Cuba”

regulation under Section 1185 at bar ............

Go hy ; 3

es cat ‘

28 ,

— ee ooo Cae Se

INDEX TO APPENDICES -

Appendix A. Opinion of the District Court.

Appendix B. of the United States Court of

_Appeals forthe Ninth Circuit. :

Appendix C! Section 1185, Title 8, “United States

_ Code, ehacted as Section 215 of the Immigration .

~ and Nationality Act of 1952, Act of January 27,

1952, C. 477, oe, C.2, 66 Stat. 190.

Appendix D. Excluding Cuba Regulation, January

16, 1961, Dept. Reg: No.\108. 456, 26 Fed. Reg.

482.

Appendix E. Code of Federal Regulations, Title 22, |

Part 53. :

sousitie:3 F. pats Notice, January 16, 1961, 26

ponte G. Press Release No. 24, stance 16, 1961,

44 Dept. of State Bull; 178.

Appendix H. Presidential Proclamation, No. 3004,

» January 17, 1953, 67 Stat.C. 31. i

Appendix I. Presidential Proclamation No. 2914, De-

‘cember 16, 1950, > t. A454.

ss iv. a

TABLE OF AUTHORITIES CITED

_ Cases Page .

Aptheker v. Secretary of State, 378 U.S. 500 ....,.11, 29

Cantwell v. Connecticut,'310 U.S. 296 11, 30

* Chastleton Corp, v. Sinclair, 264 U.S. 543 ............... 33

Cox v. Lauisiana, 379 U.S. 559 11, 22, 30

East New York Savings Bank v. Hahn, 326 U.S. :

' 230. eg

Freedman v. Maryland, 380 U.S. 50 30

_ Johnson v. United States, 318 U.S. 189 ......11, 22, 23

Jones v. United States, 362 U.S. 257 11, 23

Kent v. Dulles, 357 U.S. 116 ............ 9, 11; 19, 28, 29

Kunz v. New York, 340 U.S. 290 11, 30

Lambert v. California, 355 U.S. 225 a ae *

Largent v, Texas, 318 U.S. 418 -11, 30

Morissette v. United States, 342 U.S. 246 ................ 24

Niemotko v. Maryland, 340 U.S. 268 11, 30

Porter v. Herter, 278 F. 2d 280 a

Quinn v. United States, 349 U.S. 155 11, 23

Raley v. Ohjp; 360 U.S. 423 . 11, 22

Saia v. NewsYork, 334 U.S. 558 11, 30

Scull v. Virginia, 350 U.S. 344 ..., 11, 23

Smith v. California, 361 U.S. 147 .... . 24

Staub v. City of Baxley, 355 U.S. 313 . 30

~ Thornhill v. Alabama, 310 U.S. 88 11, 30

United States v. Cardiff, 344 U.S. 174 .....11, 22, 23

United States v. Healy, 376 U.S. 75 12

Woods v. Miller, 333 U.S. 138 ott

Worthy v. Herter, 270 F. 2d 905 i2

‘ _ Worthy v. United States, 328 F. 2d 386 °: 12

Zemel vy. Rusk, 381 U.S. 1 ..2, 3, 9, 10, 12, 21, 27, 29

—e-

85th Congress, 2nd Session, S. 4110

: v. ‘ :

$6 Congressional Record, p. 18, 20 wing 2 nnn 14 |

56 Congressional Record, pp. 5969-6068, 6191-6195,

6298, 6246,6248 . 14

56 Congressional Record, pp. 5970, 6029-6031, 6066-

6067, 6191-6192 : 14

85th Congress, Ist Session, S. 2770

85th Congress, 2nd Session, S. 3344

85th Congress, Ist Session, S, 4110

85th Congress, 2nd Session, S. 4030

86th Congress, Ist Session, S. 1303

86th Congress, Ist Session, S. 2095

86th Congress, 1st Session, S. 2287

87ttr’Congress, Ist Session, House Report, PP. 304,

935, 973, 1086, 2485

88th Congress, Ist Session, House Report, pp. 2559,

8652

87 Congressional Record, p. 5052

87 Congressional Record, pp. wes PP 5325-5326, |

5385-5389 14

87 Congressional Record, . pp. eg denen x2 Recs

5048-5053, 5386-5388 ...... 14

104 Congressional Record, p. 13062 mee Sale Sie

22 Department of State Bulletin, p. 399 ... iS

24 Department of State Bulletin, p. 932 — 15

26 Department of State Bulletin, p. 7 cae

<BR RBESBIYSB

26 Department of State Bulletin, p. pie cae VW

33 Department of State Bulletin, p. 777 17

vi.

; : Pas

34 Department of State Bulletin, pp. 247-248 .....17, 18

35 Department of State Bulletin, p. 756 “17

~ “4 Federal Register, p. 3892 ee ee

6 Federal Register, p. 6069 26

Hearings, 85th Congress, 1g Seasion, p. 59 ae SDR ae

Hearings 85th Congress, Ist Session, pp. 63-64 ......15 ~

House Document No. 417 19

-House Report 485, 65th Congress, 2nd Session, pp. 3

2,3... 14

House Beport 1365, Sod Congress, 2nd Sesion,

House Report, p. 2468 ..... 20 -

House Report, p. 5455 20

House Report, p. 7315 : Liisi 20

_ House Report, p. 8329 20 ”

House Report, p. 8655 20

House Report, p. 8930 } 20

House Report, p. 9069 ...... J 20

House Report, p. 13005 .... 20

House Report, p. 13318 20

Presidential Proclamation No. 2914 (December 16,

1950), 64 Stat. A454 2, 4, 32, 33

Presidential Proclamation No. 3004 (January 17,

1953), 67 Stat. C31 2, 4, 16, 32, 33

Presidential Proclamation No. 3004 (January 17, wie Vee

1953) $7 Stat. C31, par. 1 26.

Press, Release No. Gj dh. erie ttt Alen >, 30

Public Notice 179, 25 Féieral Register, .

eye

Senate Report 431, 65k Comeeens, Sek teatien 14

Senate Report 444, 77 Congress, Ist Session, pp. 1,

2 inpwrneen tient 14

3 United States Code Congressional and Adminis.

trative. News, 85th Congress, 2nd Session, . p.

5465 mevns £9

| Regulation

State Department Regulation No. 108.456, 26 Fed.

Reg. 482 2, 3, 5, 25, 26

. Statutes

Act of May 22, 1918, 40 Stat. 559 13, 26

Act of June 21, 1941, 55 Stat. 252 13, 26

Code of Federal A cones: Title 22, Sec. 53.1

Code of Federal Regulations, Title 22, ‘Secs. 53.1-

53.9 26

Code of Hetersh, ear. Title 22, Sec. 53.2

2, 6, 24

‘Code of Federal Regulatians, Title 22, Sec. 53.3

2, 3, 5,.24

Code of Federal Regulations, Title 22, Sec. 53.3(11).. 6

Immigration and Nationality Act of 1952, Sec. 215...2 2

Passport Act of July 3, 1926, 44 Stat. 887 .3, 5, 25, 27

Public Law 304 19

40 Statutes at Large; p. 1829 ad 16

41 Statutes at Large, p. 1359 . 16

—

(

55 Statutes at Large, p. 1696 ....... 7 16

66 Statutes at Large, pp. 54, 57, 96, 137, 330, 333 .. 16

66 Statutes at Large, p. 190 .... ‘ bat RB

‘69 Statutes at Large, p. 595 19

United States Code, Title 8, Sec. 1185.2, 3, 4, 5,6, 8

2 10, 11, 12, 13, 14, 15, 16, 17

18, 19, 20, 21, 22, 23, 24, 25

| 26, 28, 31, 32

‘United States Code, Title 8, Sec. 1185(b) —.... 24

United States Code, Title 8, Sec. 1185(c) 25

United States Code, Title 22, “Sec..2Ha ....3, 5, 9, 10,

ih 25, 26, 27

United States Code, Title 28, Sec- 1254(1) --eonu-----..- 2

United States Constitution, First Amendement..4, 11, 30

United States Constitution, Fifth Amendment ........ 4

J Textbooks

3 Hackworth, Digest of International Law a 1942),

p: 526 15

3 Hackworth, Digest of International Law (1942),

p. 530 15, 16

P =

’

Page *

“4

IN THE oe Sa

Supreme Court of of the United States

October a: Term 1965

Me... i : \

Heten Maxine Levi Travis, hagas ginrt

Petitioner,

wei

UNITED STATES ‘OF AMERICA, ¥

Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

Petitioner prays that a writ of certiorari issued to

review the judgment of the United States Court of Ap-

peals for the Ninth Circitit, rendered and entered in the

above-entitled cause on November 19, 1965.

Opinions Below. - -

The memorandum opinion of the District Court. [R.

117]' is not reported; it appears herein in Appendix

A. The Opinion of the Court of Appeals [R. 140] is

not yet reported; it appears herein in Appendix B.

J i di tion

The Opinion and Judgment of the Court-of A

were entered November 19, 1965. [R. 139-143.] A timely’

action fo, robearing ome in. Deas fe 1965, and

‘Signifying Trapscript of Record, page 117.

= tex

’ :

was denied on January 4, 1966. [R. 144.] The jurisdic-

tion of this Court is invoked under 28 U.S.C. Sec.

1254(1). *%

Statutory Provisions Involved.

The statutory provision involved hereiri is 8 U.S.C.

Sec. 1185 (Sec. 215, Imm. and Nat Act of 1952, 66

Stat. 190) (hereinafter referred to as Section 1185),

which appears herein in Appendix C. The regulation in-

volved herein is State Department Regulation No. 108.-

456, 26 Fed. Reg. 482, 22‘C.F.R. Sec. 53.3 (hereinafter

referred to as the “Excluding Cuba” regulation), which

appears hereinsin Appendix D. (For convenience, 22

CFR. 53.1, and 53.3 as existing prior to the “Ex-

Cuba régulation also appear herein in Appen-

dix E. Public Notice 179 (26 Fed. Reg. 492) and Préss

Release No. 24 (44 Dept. St. Bull. 178), issued by the

_ Department concurrently with the “Excluding

regulation, appear herein as Degen F and

sy Gfrepectvey:

{Presidential Proclamation No. -3004 (January 17,

1953, 67 Stat. C31) issued under Section 1185 and to

give that statute effect, appears herein in Appendix H.

Présidential Proclamation No. 2914 (December 16,

1950, 64 Stat. A454), referred to in Proclamation No.

3004, appears herein as Appendix I.

Involved at bar is the imporéant question of

Court’ in the civil case of Zemel v. Rusk, May 3,

381 -U.S..1, 12, 18-20—whether the 1961

ban on travel to Cubg can be given criminal.

“oe

More completely stated, the question \is whether the ~

1961. “Excluding Cuba” regulation (Regulation No.

108.456, 26 Fed. Reg. 482, 22.C.F.R. Sec. 53.3), elimi-

nating Cuba from the.area for whtich passports are not

quired and eee al validation. ‘allowabl

only in total discretion, for travel thereto, can sup-

port a criminal prosecution under 8 U.S.C. Sec. 1185

for a claimed violation thereunder, including under that

fundamental question the following subordinate issues:

1. Whether. Section 1185 (as distinct from 22

U.S.C. Sec. 2114, the Passport Act of July 3,

1926, 44 Stat. 887, involved in Zemel v. Rusk)

grants statutory atfthority, backed by criminal

sanction, for an area restriction upon travel such

as the “Excluding Cuba” purported regulation;

2. Whether such regulation can be. enforced, with

criminal sanctions under Section 1185 although

the said regulation was expressly’ not promul-

gated under authority of Section 1185 but only

--under authority of 22 U-S.C. See. cele ames

. bears no criminal sanction; ‘

3. Whether in light ‘of point (2) and of issues in-

volved in point (1) hereinafter detailed under

Point I below, Section 1185 and the “Exclud-—

ing Cuba” regulation if construed to impose such

criminal sanctions violate due process of law for

vagueness, contradiction and misleading terms in

ay the communication of a criminal command ; |

4. Whether Section 1185 if construed to authorize

issuance thereunder of criminal area travel pro-

hibitions unconstitutionalfy. delegates legislative

er eet a PA.

‘S. - Whethey Section 1185 and the “Excluding C

- . gegulation, if construed to authorize a criminal

restraint against travel to Cuba as below, in-

cluding particularly restraint whereunder special

validation for such travel is allowable only under

unconfined, absolute discretion, deprives petition-

er of personal liberty and of freedom’ of speech,

and Fifth Amendments. .-

‘Alsi Tevet ix Whettier ‘Section 1185 arid the “Ex-

ocluding Cuba” regulation can properly be applied to a de-

parture not directly to Cuba but only to Mexico, with

‘application to Cuba for permission to enter being made

only after, not prior tg, United States departure.

Finally, there is tendered the continuing validity and

effectiveness of Presidential’ Proclamations Nos. 3004

and 2914. ©

”

Statement of the Case. 2

Petitioner was convicted below on two counts for

claimedly violating Section.1185, and the “Excluding

_ Cuba” regulation under, it, under an indictment charging

that upon two occasions, on January 22, 1962 and on

August 18, 1962, petitioner “did . . depart. from the

United States without bearing a valid ‘Bepabict for the:

Republic of Cuba, via Mexico . . .” [R. 2-4]. '

"Section 1185 provides in core that after a presblential

declaration of emergency (proclaimed in Presidential

Proclamation No. 3004)* it shall be a crime for any

soeaat i Soper from. 06 eben, or attempt to. depart

thpught- ara}: association contrary to the: First 4

Pe a —5— : a9

sie uctpaataas States unless he ears id

The “Excluding C *-weigiatida (Regulation. No. —

108.456, January 16, 1961, 26 Fed. Reg. 482, 22;C.F.R.

Sec. 53.3) amends former 22.C.F.R. Sec. 53.3 to elim- pied

inate “Cuba from the Western hemisphere’ area to ~

: which travel may be undertaken without a passport, Con-

currentfY, on the same day, the Secretary of State

also issued Public Notice 179 (26 Fed. Reg. 492) 'pro-

viding no passport would thereafter be valid for pias

to Cuba “unless specifically endorsed for such travel,”

and Press Release No. 24 (44 Dept. St. Bull. 178). ad-

vising that “exceptions” allowing issuance of passports

valid for Cuba would be made by the Secretary—but

only where regarded by him a being in the best in-

_ terests of-the United States . |

None of these “Excluding Cuba” public acts and docu-

‘ments—Regulation No. 108.456, Publid Notice’ 179 or

Press Release No. 24—cited or referred to Section 1185

in any way as authorizing authority. To the contrary,

both Regulation No. 108.456 and Public. Notice 179

expressly cited the civil Passport Act of 1926 (Act of

July 3, 1926, 44 Stat. 887, 22 U.S.C. Sec. 21la), a

statute imposing no criminal penalty for violation of

regulations issued under its mergpreias Troslicwna aie ni f

mulgative authority. |

Thus the promulgative paragraph of Regulation No.

108.456, excerpted for clarity, recites expressly the au-

thority of the Act of July 3, 1926 (22 U.S.C. Sec.

211a), stating: *

Poles to the aitthority vested 3 in me by “ the

Act [of} July 3,:1926 .':.. I hereby ‘amend para- /

graph (b), fof 22 C. F. R533] gg follows «1

- (26 Fed. Reg. 482.)

‘

In similar manner, Public Notice 179 states simply:

“Therefore pursuant to the authority vested in me

+ by [22 C.F. R. 51.75 and 51.77] issued . . . under

’. authority of . . . the Act [of] July 3, 1926%..

all United States p&ssports are hereby declared . . .”

There are no disputed facts at bar. Petitioner was

tried by the court with a jury waived, upon an agreed

“Stipulation of Facts.” [R. 63-66.]

~The Stipulation of Facts recites that petitioner at

all material.times was and is a citizen [Stipulation of

Facts, R. 63-66, par. 2]; that at all material times she

knew the provisions of Section 1185 and of 22 C.F.R.

Secs, 53.2 and 53.3 (par. 11); that @t all material times

- . she did not possess a valid United States passport specif-

- jeally endorsed for travel to Cuba (par. 11); and that

on January 22, 1962 and on August 18, 1962 petitioner

“intentionally left and departed from the United Sta

by plane onthe first date and by automobile on the

toca date, (PGI: 4 Sid 7-)

The Stipulation recites that defendant did not in

either instance depart directly for Guba but rather for

Mexico, intending in each instance to seek permission to

travel to Cuba only after her arrival in Mexico. —

In each instance defeniant ‘entered Mexico upon a

tourist’ permit issued by that country’s government, and

at ‘the ‘time of departing “intended to seek permission

from representatives of the Republic of Cuba in Mexico,

“D. F.pto. visit. Cuba.” At the tiine of each departure

_tromn the ited, Stites ‘the “id nok ave ‘Cue per-

\ " a | oe

mission to enter Cuba” and she obtained that permis-

sion only after arrival in Mexico. (Pars. 4 and 7.)

On the first occasion that permission was obtained four

days after agrival in Mexico City, and“on the second,

twelve days after such arrival. (Pars. 4 and 7.) After

the requisite permission had been obtained for entry into

Cuba, petitioner traveled from Mexico City to Cuba by

plane. (Pars. 5 and 9.)

After her arrival in Cuba-on each of her said journeys

thereto petitioner travelled in and about Cuba observing

“the living and working conditions of the people and the

effectuation and implementation of various government

"programs relating to housing, education, agriculture, in-

dustrialization and public health” and in the course of

such! travels took a number of pictures of which Ex-.

hibits 1A to 1M are representative. (Par. 12.) Upon

her return to the United States and. to her home. in. Los

Angeles, California, petitioner appeared before “various

groups and gatherings of her fellow citizens” and re-

ported te-them her observations upon her travels in Cuba

and showed her photographs, Exhibits 1A to 1M. In

addition petitioner wrote descriptions of her trips and

her observances in Cuba which she disseminated by mail,

to friends and acquaintances and the copy of her ietter

dated February 28, 1962, Exhibit 2, is representative of

such materials. (Par. 13.) The Stipulation of Facts and

Exhibits 1A to 1M and 2 were duly admitted in evi-

dence. [R. 67.] dg ere i

to.

—s— =

By a written motion to dismiss the indictment [R. 6]

and by an oral motion for judgment of acquittal [R.

67], each supported on leave by written briefs [R. 8,

68], petitioner challenged in the trial court the statute

and the regulations, :on their face and as applied, upon

grounds substantially as expressed herein in the state-

ment of Questions Presented above. Both said motions

_were denied. [R. 55-61; R. 117-124] Petitioner was ad-

judged guilty on both counts of the indictment and was

sentenced on each-count to a fine of $500 and to six

months imprisonment, suspended on probation. [R.

125.] . \ <

On Appeal the Court of Appeals affirmed. [R.. 139-

143.] A timely petition gor rehearing was filed Decem-

ber 17, 1965 [R. 144], and was denied January 4, 1966.

[R. 144.]* Ae

—

“REASONS FOR GRANTING THE WRIT.

Inteodissetind ."

Tendered in the case at bar, as developed in detail

hereafter, are issues of statutory and Constitutional

law and of public policy of far reaching national im-

portance affecting the question—expressly reserved by

this Court in Zemel v. Rusk, 381 U.S. 1—whether the

Department of State by administrative ban can crim-

inally prohibit travel by American citizens to designated

world areas—in this case, travel to Cuba.

In Kent v. Dulles, 357 U.S. 116, this Court distin-

guished (pp. 120-123) between the two separable func-

tions of passports—the first as a civil diplomatic act of

granting or withholding diplomatic requests for safe

passage, and the second as an*instrument of criminal

exit-control. Zemel v. Rusk dealt with the civil right to

a passport for Cuban travel and held as to that matter

civil withholding of request for safe-passage—22

ULSiC. Sec. 211a (the Passport Act of July 3, 1926)

granted. the Secretary authority to impose area travel

restrictions and thereunder to refuse to issue Cuban

travel passports. However, this Court there expressly

reserved the question “whether [a person] can be crim-

inally prosecuted under . . . 8 U.S.C. Sec. 1185(b) . . .

for travel in violation of an area restriction,” declar-

‘ing that resolution of that criminal exit-control question

“must await a concrete fact situation.” (381 U.S. at PP.

18 and 20.)

The instant case presents that reserved question and

poses that “concrete fact situation,” : ie

Involved at bar, firs, ithe evios question of sat

—{0—

thotisesefisiinal pemishinent for travel in distezard of

administrative area restrictions. The court below, im-

plicitly upon the authority of Zemel v. Rusk,. held

Section 1185 authorizes and provides such crimifal

sanction for violations of area restrictions, although the

legislative history of the statute, and the consistent ad-

ministrative construction of it and of its two predeces-

sor Statutes, demonstrate the statute was not intended

to, and has uniformly been conceived and construed

not to, convey such authority and to be inapplicable and ©

irrelevant to area travel restrictions. Zemel v. Rusk,

as observed above, involved only the civil base for area

question posed here.

. Also involved at bar is a grave conflict with due

process fundamentals under the void-fot-vagueness doc-

trine. The, legislative and administrative history of Sec-

tion 1185 and its predecessors not merely discloses that

area restrictions have always been cast in civil terms

and context only and never predicated upon Section 1185

or its predecessors, but discloses further that on two

explicit occasions {and many more implicit ones) the

- Department of State has publicly and officially an-

nounced that area restrictions do not “forbid” affected

travel and do not make such travel punishable criminally.

area restriction (the “Excluding Cuba” regulation). is

Added to, this. is the circumstance that the instant

expressly promulgated mot under Section 1185 but

under a civil statute (22 U.S.C. carers prea

provision for criminal punishment for violation of

Gstloae tebuad odor. te Si callie’ dhe Acdibet''Ghva 2.

striction as criminally punishable under Section 1185

in the case at bar, therefore, does violence to the consist-

}

pe |,

ent due process of this Court prohibiting con-

tradictory, misleading| or ambiguous terms in the.com-

munication of a criminal command. (Raley v. Ohio, 360

U.S. 423, 438; Cox v. Louisiana, 379 U.S. 559, 571;

Johnson v. United States, 318 U.S. 189, 197; United

States v. Cardiff, 344 U.S. 174, 176; Jones v.*United

States, 362 U.S. 257, 262-263; Scull v. Virginia, 359

U.S. 344, 353; Quinn v. United States, 349 U.S. 155,

166.)

The liberty put at stake at bar—freedom to Sel 6

is a liberty “basic in our scheme of values” and one

“closely related-to the rights of freedom of speech and

association.” (Kent v. Dulles, 357 U.S. 116, 126; Ap-

theker v. Secretary of State, 378 U.S. 500, 517.) A

decision, as below, subjecting such liberty to criminal

administrative area prohibitions and restrictions poses.

deep-cutting Constitutional questions undér the due proc-

ess clause and under the First Amendment. Particu-

larly so with the: instant regulation and its feature of

arbitrary, censorial licensing power in the provision

vesting in the Department power to permit special. li-

cense for travel to Cuba to “persons whose travel may ,

be regarded as being in the best interests of the United

States.” (Cox v. Louisiana, 379 U.S. 536, 555-557:

Thornhill v. Alabama, 310 U.S. 88, 97; Kunz v. New

York, 340. U.S. 290, 294; Saia v. New York, 334 US.

558, 560-561; Niemotko v. Maryland, 340 U.S. 268,

271-272; Cantwell v. Connecticut, spoke Minit te

307 ; Largent v. Texas, 318 U.S. 418, 422.) ~ ia

Also posed in the instant case are the questions of un-

constitutional delegation of legislative powers

Section 1185 and the question of the continuing effec-

tiveness and idity of the proclamations of emergen-— |

cy required to in te: Se

: —12-—

- The decision of ‘the Court below, resolving all of the

above questions in favor of state power, is expressed in

but a three-page per curiam opinion. The opinion does

not discuss directly or in any;detail the statutory, Con-

stitutional and policy questions raised but implicitly dis-

misses them all upon authority/only of Zemel v. Rusk

—although, as stated above, Zemel v. Rusk dealt only

with the civil side of area restrictions and expressly

reserved decision as to the criminal-sanction questions

arising here.* It is respectfully submitted that in re-

solving all of the statutory, Coristitutional and policy

questions tendered at bar in favor of state power and

ing criminal punishment for a violation of the

like questions in a manner in conflict with applicable

low, and certiorari, therefore, should be allowed.

;

ees eS

Congress Did Not by Section 1185 Authorize Is-

suance of Criminal-Sanction Area Travel Bans. —

The legislative history of Section 1185 and of its two

exact border-control predecessor statutes (Act of May

22, 1918 and Act of June 21, 1941) and the record of

area restrictions and of Executive acts and declarations

relating thereto undertaken both before and since enact-

ment of Section 1185, make plain that Section 1185 Was

not intended to, and by construction has uniformly been

recognized not to, authorize issuance under it of érim-

inal-sanction area travel bans.

(1) The legislative history of Secti®h 1185 is the

legislative history of,its two exact predecessor stat-

utes,” the Act of May 22, 1918, 40 Stat. 559, and the

Act of June 21, 1941, 55 Stat. 252. That history dem-

onstrates the legislative purpose was to impose border

control only, not to institute or authorize area or geo-

graphical travel restraints. There is nothing in the

terms Of the statutes suggesting area restraints and the

legislative history expresses affirmatively a purpose

only to impose entry and exit control as to spies and

persons fleeing or violating the law—that is to im-

pose regulation as to travelers, not as to destinations.

The Senate debates on the eriactment of the

parent act, the Act of May 22, 1918, declare its “c ic

object” was to-scrutinize and impose control upon. “ali.

ens and anne enemies s and pees} sahaaeal engaging

Steer Oe gee

in or subserving espionage and who “can now enter and

depart without any power . .. to intercept or delay

them:” (56 Cong. Rec. 6192; see also p. 6029.) In. like

manner, the House debates on the enactment of the Act

- of June 21, 1941 declare its “sole purpose” was to im-

pose. “a sort of clearing house” over persons entering

and leaving the country to ascertain “their reasons why

_ they were. going or coming . . . and whether they were

” engaged in espionage [or ‘ale vielatones." (87 Cong.

Rec, 5052.)

Over and over again in the debates as to both the

1918 and 1941 Acts there ig reiterated the purpose of .

border control—to seal and‘control the points of entry

and exit against espionage agents and law violators by

requiring passports for passage and identification.‘

Never as to either Act is there suggestion of intent to

impose or authorize area prohibitions or restrictions.’

(2) Moreover, the limiting import of the foregoing

legislative history indicating that Section 1185 and its

predecessors were not intended to authorize criminal

area travel restrictions is corroborated by the record of

area restrictions and of Executive-acts and declarations

relating thereto undertaken both before and since enact-

ment of Section 1185. That record shows that area re-

°Thus as to the 1918 Act see: 56 Cong. Rec. 5970, 6029-6031,

6066-6067, 6191-6192; see also H: ~ f No. 485, 65th Cong.

Serena RE BT eal A Bio

s to Congress December

stot, $6 56 . Rec. 18,20. ices

As go the 1941 Act see; 87 . Rec. 5325-5326, 5386,

5048-5 Rohe ee ee Mes Sovicen "a

485,63 Cong, 28 Sess , supra; 8

oom

‘

—15—

'strictions where undertaken were always and unvary-

ingly undertaken as civil safe-passage-withdrawal acts

only, never as criminal travel prohibitions, and Section

1185 and its predecessors were never referred to or in-

voked as even relevant thereto. It was not conceived that

Section 1185 or either of its-predecessors authorized is-

suance thereynder of .criminal-sanction area restraints.

(a) Prior to enactment’ of Section 1185 (June ‘27,

1952) the Secretary of State on a dozen occasions be-

ginning as early as 1914 proclaimed area restrictions as

to passport rights because of war or diplomatic consid- .

erations [$914, restrictions as to Europe (Hearings,

85th Cong.’ 63-64); 1915, restriction as to Belgium

(3 Hackworth’ 526); 1919, restriction as to Germany

(id., p. 530); 1935, restriction as to Ethiopia (id.,. pp.

531-532); 1936, restriction as to Spain (id, pp. 533-

534); 1937, restriction as to China (id. pp. 532-533);

1939, restriction as to Europe @@. pp. 534-535; 4 Fed.

Reg. 3892); 1949, restriction as to Hungary (22 Dept.

. St. Bull. 399); 1951, restriction as to Czechoslovakia

(24 Dept. St. Bull. 932); 1951, restriction as to Hun-

gary (26 Dept. St. Bull..7); 1952, restriction as to

Eastern European Countries, China and the Soviet

Union (26. Dept..St. Bull. 736)]. Of these restrictions

five (the third, and the last.four) were proclaimed dur-

ing periods of the full operative effect two. statu-

tory predecessors of Section 1185, the Acts of. May 22,

| pie and June 21, 1941 (i.e. in the periods anes

~ *Hearings before the Commitee on Foreign Relations oi on - ac

State Passport Hearings, 88 va

Ra ee Seas, hereinafter cited os Hearings, 85¢h |. Cong.

referred to as iseat) (ates vl site) >

—16—

and 1941-1952). Yet ail of the restrictions unfatlingl,

were conceived and expressed solely in diplomatic, safer,

passage terms. In not one of them—even during periods

of the full operative effect of the predecessor statutes

of Section 1185—is there even a suggestion that the re-

strictions imposed were or could be issued under or be

given criminal sanction by the predecessor statutes of

. Section 1185.

In some of the examples, moreover, the civil, safe-

passagé nature of the restrictions is made particularly

explicit. In the 1919 restriction against travel to Ger-

many, for example, despite announcing it was “no longer

issuing or authorizing . . . passports for Germany”, the

State Department nonetheless stated as to travelers dis-

- regarding its ban merely that such persons would “go

“ upon’ their own responsibility and at their own risk.

They canriét be guaranteed the same protection which

they might expect under ‘normal conditions.” (3 Hack-

worth 530.) Although the 1918 Act predecessor to Sec-

tion 1185 was then in full force and effect no slightest

reference to it was made.

The most revealing of all of the area restrictions pre-

ceding the enactment of Section 1185 is the 1952 procla-

mation relating to travel to East European countries,

China and the Soviet Union: There the State Depart-

ment announced it would ‘orth “‘stamp all pass-

2h ah Pal fos. travel such countries “unless specif-

~The 1918 Act was in 7

te eae eee

en aed Stat. 1696) to A Rage: B55 (66 Sa. 34, %,

otal aac “1983 (67

—17—

ically endorsed . . . for suth travel.” “However, the De-

partment’s official "Press Release ‘establishing the re-

striction was explicit also in stating, “In making this

announcement, the Department emphasized that this pro-

cedure in no way forbids American travel to those

areas.” (26 Dept. St. Bull. 736, emphasis added.) The

Press Release stated the Department’s action represented

only a “taking [of] additional steps to warn American

citizens of the risks of travel in Iron Curtain countries

ad (Jd.). ee as f ;

(b) The uniform recognition by ‘the State Depart-

ment during the long historical period preceding enact-

ment of Section 1185 thathe area restrictions issued

by it concerned only the diplomatic, safe-passage side of

the passport powers and did not relate to criminal exit-

control under the predecessor statutes to Section 1185, «

has continued and even*been underscored since enact-

ment of Section 1185 to and until the very recent present.

‘Since enactment of Section 185 (June 27, 1952) ‘and

’ prior to the “Excluding Cuba” regulation at bar, the

State Department proclaimed area travel restrictions

on three new occasions [1955, restriction as to Al-

bania, Bulgaria, China, North Korea and North Viet

Nam (33 Dept. St,. Bull. 777); 1956, restriction as

to Hungary (34 Dept. “St. Bull. 247-248); 1956, re-

striction as to Egypt, Israel, Jordan and Syria (35 Dept.

St. Bull. ‘756)]. Again, despite the full operative effect

at all times of Section 1185 these proclamations unvary-

ingly sounded in diplomatic, safe-passage terms only;

never was there even a suggestion that the restrictions

were or could be issued under or be given criminal, exit-

control sanction by Section 1185. |

—18—

_©Thus, in illustration, the 1956 restriction as to: travel

to Hungary stated merely that the Department “is un-

willing” “either to encourage or facilitate the travel of

. American citizens to Hungary”, and that passports

would not be valid for travel thereto unless specially

validated. No mention of Section 1185 or of its sanctions

is made, despite its full operative effectiveness at the

time. (34 Dept. St. Bull. 247, 248.)

In 1957 the Senate Foreign Relations Committee,

noting the Department had stated (as excerpted above)

that its area restrictions “in no way forbi[d]” travel

to affected countries and that despite area restrictions

many persons had travelled in disregard thereof with-

» out any enforcément of any sort being attempted, asked

the Department directly whether the stamping of a pass-

port “not valid for travel to country X” means the

United. States “withdraws its protection” from such

travel, or means the United States “prohibits the per-

son from going to country X?” (Hearings, 85th Cong.,

supra, p. 59, emphasis added.) The Department replied

that such réstrictive stamping of a passport “means

that if the hearer enters country X he cannot be as-

sured of the protection of the United States .. . [but

it] does not necessarily mean that if the bearer travels

to country X he. will be violating the criminal law.”

(Jd., emphasis added.) The Department said there were

criminal laws “which might well be violated in the course

of such travel”, mentioning “e.g. the Trading with the

Enemy Act,” but the mere travel to the named country

in se would be no crime. No mention or citation was

made of Section 1185 as even relevant to the issues

posed. :

—19—

Surely had the Department truly conceived that Sec-

tion 1185 applied to make penal a mere leaving of the

United States to go to “country X”, i¢ would have said

so. In the premiSts its silence is eloquent testimony that

in truth it viewed its area restrictions as civil, safe- -

passage measures only, not as criminal-sanction meas-

ures of exit control.

Finally, repeated recent endeavors by the Executive

to obtain from Congress an explicit statutory base to

attach criminal penalties to area travel restrictions, and

Congress’ consistent rejection of all such endeavors, cor-

roborates further that Section 1185 does not now pro-

vide such a base and Congress is as yet unwilling to

enact one. Thus in 1957 an authoritative report of the

Commission on Government Security, issued pursuant to

Public Law 304, 84th Congress, Ist Sess., 69 Stat. 595,

as amended, expressly recommended the amendment of

Section 1185 “to make it unlawful for any citizen of the

United States to travel to any country in Which his

passport is declared to be invalid.”’ (Report, p..475.) In.

1958, responsive to the foregoing and to this

Court’s restrictive decision in Kent v. Dulles, supra,

357 U.S. 116, President Eisenhower recommended pas-

sage by Congress of legislation to provide, among other

things, for “clear statutory authority to prevent Ameri-

cans from using passports to travel to areas where there

is no means of protecting them, or where their presence

would conflict with our foreign policy objectives or be

inimical to the security of the United States.” (July 7,

1958, 104 Cong. Rec. 13062, House Document No.

417; 3 U.S. Code Cong. and Admin. News, 85th Cong.

2d Sess., at p. 5465.) ‘The President’s request was em- —

bodied in a proposed bill, introduced in ‘the 85th Con-

a a

grees, Ist Session as S 4110, which was thereafter fol-

lowed by numerous similar bills:in that and successive

Congresses." To date Congress ha§ftonsistently failed

to adopt these proposals.

All of the foregoing legislative and administrative his-

tory combines to establish four decisive things as to Sec-

tion 1185. First, the history shows that Section 1185

’ ‘was adopted by Congress on representations that it was

to serve limited (border control) purposes only and

without: suggestion of authorization for criminal-sanc-

tion area restrictions. Second, the history show that the

Department has uniformly cast area restrictions as

civil acts only, has consistently construed Section

1185 and its as inapplicable and irrelevant

thereto. Third, the history reveals two express declara-

tions by the Department—one to the people and one di-

rectly to an agency of the Congress—officially advising

that area restrictions do not “forbid” free travel and are

not criminal in character. Finally, the history is climaxed

and completed by repeated requests by the Department

of Congress that it enact a law to make violations of

area restrictions crimes—requests which Congress has

in all cases declined. All of this establishes a compelling

record of administrative construction, with congressional

acquiescence, that Section 1185 does not. authorize is-

stance under its authority of criminal-sanction adminis-

trative area travel prohibitions.

The Court below did not consider or respond to any of

the foregoing agora hoe of legislative and adminis-

11S¢e e.g. 85th ‘Ist Sess.,: S. 2770, H.R. 8655;, 85th

Cong., 2d Sess.,: S. 3344, 4030, 4110, H.R. 13005, 13318: 86th

‘Cong., Ist Sess.,: ‘S: 1303, 2095, 2287, H.R. 2468, 5455, 7315,

, 8930, 9069; 87 Cong., Ist Sess.,: H.R. 388, 935, 973, 1086,

2485; oe Ist Sess.: H.R. 2559, 8652.

trative history respecting Section 1185 and its inap- —

_ plicability to lend criminal sanction to area travel re- -

strictions. The decision below contented itself with ob-

serving that: “Area restrictions have long been used

and are recognized as valid”, citing merely Zemel v.

Rusk. But Zemel v. Rusk; as heretofore noted, express-

ly forbore from determining the applicability of Sec-

tion 1185 to area restrictions, and the history tendered

here was not examined or evaluated there.

. TI.

To Enforce the “Excluding Cuba” Regufation Under

Section 1185 With Criminal Sanctions in the

Premises at Bar Would Violate Due Process

for Vagueness, Contradiction and Misleading

Terms in the Communication of a Criminal

Command.

Enforcement of the “Excluding Cuba” regulation as a

criminal prohibition under Section 1185 in the prem-

ises at bar would offend due process fundamentals

against vagueness, contradiction and misleading terms

in the communication of a criminal command.

In light of the matters set forth in Point I above,

consider the position of the citizen. He looks first to

the terms and legislative history of Section 1185; he

- finds there no intent to authorize area restrictions but

only an intent to. impose order control—to regulate

travelers, not destinations.

He turns then to history and to precedent, Here he

finds that all previously issued area ‘travel restrictions

have sounded only in civil terms, that is in terms of

safe-passage withdrawal, never in terms of criminal

prohibition. Not once, he finds, has there been even a

—22--

suggestion that any of the prior restrictions were or

could have been issued with crimirial exit-control sanc-

tions under Section 1185 $r either of its predecessor

statutes. °

Moreover, here he finds also affirmative, authorita-

tive administrative disclaimers of criminal sanctions.

Here he finds the Department of State itself declaring

that grea restrictions “in no way forbi[d]” free travel

in violation of their terms but constitute merely “addi-

tional steps to warn American Citizens: of the risks of

{unsanctioned} travel,” and declaring further upon of-

ficial inquiry from the United States Senate that disap--

proved travel in itself constitutes no crime ‘though

“there are laws which might well be violated in the

course of Such travel.”

All of. these matters of record tell the citizen that

travel to the disapproved areas is not regarded as a

crime. To prosecute thereafter turns this contrived

structure of administrative regulations into a trap even.

for the wary. To suffer criminal: conviction in such

premises “would be to sanction and indefensible sort of

entrapment by the State—convicting a citizen for exer-

cising a privilege which the State had clearly told him

was available to him.” (Raley v. Ohio, 360 U.S. 423,

426; Cox v. Louisiana, 379 U.S. 559, 571; Johnson v.

United States, 318 U.S. 189) 197; United States v.

Cardiff, 344 U.S. 174, 176.) ie

Moreover, all of the foregoing ¢i : are cli-

maxed finally by the promulgation\clause of the “Ex-

a eta ~ .

“A = 4 r;

i °

. » < ’

a | 23—

cluding Cuba” regulation which expressly declares (as /~

developed in Point III hereafter) that that regulation is ss

issued “pursuant to the auiherity” not of Section 1185 |

but of “the authority of . .. the Act of . ... July 3,

1926, 22 U.S.C. Sec. 211a,” @ statute imposing no crim-

inal sanctions for violations of regulations issued

under it.

In all of these premises it appears difficult’ to deny

that petitioner, or any other citizen, might reasonably

read the “Excluding Cuba” regulation in the light of -

all of these ‘circumstances as communicating no crim-

inal-sanction area travel prohibition. Petitioner was mis-

led. She did not reach the wrong interpretation of the

regulatory maze. Rather the Government reversed its

field by professing to impose no criminal sanction and

after reliance thereon doing the very opposite. Due proc-

ess forbids contradictory, ae or vague crim-»

inal commands. (Jones v. United Statesy 362 U.S. 257,

262-263; United States v. Cardiff, 344 U.S. 174, 176.)

“Fundamental fairness” requires an sicmsah~ate be

held to account “for a crime he could not with reaspn- vs

able certainty know he was committing”; he must not

“be misled” but must be “clearly apprised” by the law «&

of its command. (Scull v. Virginia, 35910.S>344, 353; :

Johnson v. United States, 318 U.S. 189, 197; Quinn v.

United States, 349 U.S.155, 166.) |

Before a citizen can be convi ee

be made to know by Government that his act is crim

. inally prohibited without such awareness ‘his state ‘of a

—24— a

_ mind lacks: punishable scienter. (Morissette v. United

States, 342 U.S. 246; Lambert v. California, 355 U.S.

225; Smith v. California, 361 U.S. 147, 150-151.)

On the issue here concerned the Court below errone-

ously misread a stipulation that petitioner “knew” the

contents of Section 1185 and of the “Excluding Cuba”

regulation as signifying petitioner knew the intended

meaning thereof claimed by the Government. There was

no stipulation as to meaning at all, only a stipulation of

knowledge as to terms. The Court below stated,

“A reading of the statute and the regulations dem-

onstrates the plain and unambiguous meaning to

be that a pétson is subject to criminal penalties on

leaving the United States for Cuba without a valid

passport. That Appellant knew thts is agreed in the

stipulation.” [R. 142, emphasis added. ]

The true stipulation was only that petitioner “knew

the provisions of Section 1185(b) of Title 8, United

States Code, and Sections 53.2 and 53.3 of Title 22,

Code of Federal Regulations.” [R. 65, lines 24-26.]

This does not at all stipulate to the meaning or effect of

the statute or regulation as claimed by the Government,

and the erroneous conclusion to the contrary by the

Court below leaves unconsidered below™ petitioner’s

serious claim here that the statute and regulation violate

due process because of vagueness, contradiction and mis-

leading terms in the communication of a criminal com-

1eThis i in was out to the Court below

& i

The “Excluding Cuba” Regulation: Was Not “

Promulgated Under Section 1185.

Even if it be assumed that Sectién 1185 authorizes —

issuance of crimi restrictions under its author-.

be no crime because that regulation was promulgated

expressly under the authority only of 22 U.S.C. See:

211a, Act of July 3, 1926, mot under Section 1185.

_The penalty-imposing port. .: of Section 1185 pro-

“vides punishment : only for “Any person who shall will-

fully violate any of the provisions of this section, or

. of any . . . regulation issued therunder .

(8 U.S.C. Sec. 1185(c).) Contrasted with Section 1185,

22 U.S.C. Sec. 21la, Act of July 3; 1926 (44 Stat.

887), provides no criminal penalty for violation of regu-

lations issued under it.

The promulgative paragraph of the “Excluding Cuba”

regulation (Regulation No. 108.456, 26 Fed. Reg. 482),

. exoérpted for clarity, invokes expressly the authority of

the Act of July 3; 1926, not of Section 1185, stating:

“Pursuant to the authority vested in me by... the

Act [of] July 3, 1926 . popes sear gea

graph (b) [of 22 C. F. R. 53.3] as follows .

(26 Fed. Reg. 482.)” 1}

t Falowing the Legs ey ge

Fed. Reg. 482 ie naar i the ro

m tab e EPS

ity, violation of the “ cluding Cuba” regulation can ‘s,

an,

* Public Notice 179 issued concurrently with Regulation

No. ee See eenpmer Wii aiteenset 1s sar The

effect. It states >.

“Therefore pursuant to the authority vested in me

by [22.C. F. R. 51.75 and 51.77] issued . . . under

authority of . . . the Act [of] July 3, 1926 .. . all

United States passports are hereby declared to be in-

valid...” (26 Fed, Reg. 492.)

Thus, even could it have been, the “Excluding Cuba”

regulation was not issued or promulgated under Section

1185, but only under the Act of July 3, 1926, 22 U.S.C.

Sec. 21la, a statute providing no criminal penalty for

. ‘violations ef regulations issued under it. Hence crim-

inal enforcement cannot lie at bar. It is plain that

criminal prosecution for violation of an administrative

regulation can only be had where the regulation is issued

under a statute providing for criminal punishment for

violations of regulations issued under it.

On the issue here concerned the Court below observed

only, “The ‘Excluding Cuba’ regulation is an amend-

ment and as originally promulgated 22 C.F.R. 53.1-53.9

made specific reference to 8 U.S.C. Sec. 1185.” (Em-

phasis added.) The .circumstance, however, that the

original regulations of 22 C.F.R. 53.1-53.9 were issued

and promulgated under the authority and with the crim-

inal sanction of Section 1185” does not reach, affect or

cure fhe circumstance that the “Excluding Cuba” amend-

ment was not issued under such authority but only under

8A were issued under predecessor statutes

Section 11 jb Rey ay 22918 3 Se. in tuenket

55 Stat. 252, as was ly re-

mpg og ype, 6009

: : were

i i yg in.

authority of Section 211a, ee eee Se =

inal sanction.

The issue is important and narrow and is a question

of authorizing power. The authority of administrative

officers to enact regulations with the force of criminal

sanctions must be grouitled in an authorising ‘statute;

it is an awesome power and is strictly circumscribed.

Accordingly, even to amend originally criminal regula-

tions so that the amendment or change will also bear

criminal force, the amendment must itself be duly issued

under the authorization and authority of a statute pro-

viding criminal penalty for violation of regulations

issued under it. Section 21la, under the authority of

which alone the “Excluding Cuba” regulation was

expressly issued, possesses and transmits no such au-

thorizing power. Hence violation of that regulation can

be no crime. :

IV.

Construed to Au the “Excluding Cuba” eo,

lation at Bar, /Section 1185 Unconstitutionally

Delegates tive Power Without Agewsats

or Any Standards.

In Zemel v. Rusk, 381 US. 1, this Court upheld is-

suance of area travel restrictions under the civil au-

thorizing statute 22 U.S.C. Sec. 2lla (Act of July 3,

1926, 44 Stat. 887), holding that statute in authorizing

such restrictions did not, unconstitutionally delegate leg-

islative poWer (although it embodied no statutory stand-

ards) because sufficient standards could be apprehended

in prior administrative practice. The Court ruled that

“the 1926 Act must take its content from history:. it

authorizes only those: passport refusals and restrictions

‘which it could fairly be argued were adopted by “Con-

gress in light of prior administrative practice.’ . . . So

limited, the Act does not constitute an invalid delega-

tion.” (381 U.S. 1, 17-18.)

- At bar Section 1185 establishes no standards for is-

suance under #¢ of area regulations and there can be no

saving of the statute by recourse to prior administra-

tive practice. This because, as heretofore,-seen, all ad- -

ministrative practice prior to enactment of Seétion 1185

in 1952 unites to demonstrate no area restrictions were

ever attempted to be issued under the criminal sanctions

of either of the predecessor statutes to Section 1185.

All prior area restrictions were issued under the civil,

safe-passage passport powers only and their issuance, in

the Department’s words, did not “forbid” free travel de-

spite the restrictions.

Thus the prior practice proves not the prior reason-

able exertion of criminal area-restriction powers but a

denial and disclavmer thereof. Such a negating record

clearly can afford no administrative base for supplying

affirmative discretionary standards capable of adoption

by Congress in the enactment of Section 1185.

Construed to Authorize the “Excluding Cuba” Regu-

lation at. Bar, Section 1185 Deprives Petitioner

of Personal Liberty and of Freedom of Speech,

and Association Contrary to the First

_ and Fifth Amendments.

The liberty of individual citizens to travel freely to all

parts of our world is, in this Court’s words, “a part of

our heritage”; it is “basic.in our scheme of values.”

(Kens v. Dulles, 357 U.S. 116, 126.) It is, moreover, “a

ona liberty closely related to the rights of

free speech and association” (Aptheker v. ‘Secretary

_ of State, 378 U.S. 500, 517), and its free exercise

“enables American citizens . .-. to be: well-informed on

public issues,’ ” thereby “ ‘contribut[ing] to sounder

[democratic] decisions.’” (Kent v. Dulles, te es 357

U.S. at pp, 126-127.)

It is true this Court in Zemel v. nial supra, 381

U.S. 1, ruled the Department of State has Constitutional

power to refuse to issue a passport valid for travel to

Cuba under the civil safe-passage side of the passport

powers. But involved at bar is a criminal prohibition, not

a civil withdrawal of a protective privilege.

It is one thing to that Government may determine

to withdraw from specified parts of the world for rea-

sons of foreign and diplomatic policy the privilege of the

diplomatic safe-passage protection afforded by passports,

and may require citizens if they travel to such areas to

proceed on their individual responsibility only. It is an-

other thing entirely to say that Government may outright

prohibit any free travel to administratively-listed areas

of the giobe on pain of criminal punishment even as to

citizens willing to travel without diplomatic passport pro-

tection. It is the latter which is involved here. That issue

was expressly reserved in Zemel v. Rusk, and this Court

should now affirm that under the Bill of Rights the

Government may not thus _— and punish’ free

travel. * |

Moreover, there is \one, Seathite of the Rsichiding

Cuba” regulation at bar particularly offensive to’ per-

sonal liberty and to freedom of speech, thought

and association. Concurrent with the a Cuba”

regulation the Department of State issued Press Release

‘No. 24 (44 Dept. St. Bull. 178) announcing that under

the regulation discretionary validation of passports for

travel to Cuba would be allowable—but only to “per-

interests of the United States .

This vests the Secretary with iennitendy uncontrolled

discretion” to allow or disallow passports for Cuban travel

at his license, enabling him in this area of sénsitive,

First-Amendment connected rights and liberties “to act

as acensor,” jeopardizing “the right of a person or group

not to be denied equal protection of the laws.” (Cox v.

Louisiana, 379 U.S. 536, 555-557.) “It is clearly uncon-

stitutional to enable a public official . . . to engage in

invidious discrimination among persons or groups...

by use of a statute providing a system of broad discre-

tionary licensing power” over First Amendment area

rights. (Jd. at p. 557; Thornhill v. Alabama, 310 U.S.

88, 97; Kunz v. New York, 340 U.S. 290, 294; Saia v.

New York, 334 U.S. 558, 560-561; Niemotko v. Mary-

land, 340 U.S. 268, 271-272; Cantwell v. Connecticut,

310 U.S. 296, 305-307 ; Largent v. Texas, 318 U.S. 418,

422.)

pA statute creating such arbitrary, censorial licensing

power over freedom of speech, thought and association

- and related. liberties is void upon its face and.may be

attacked by any citizen “whether or not he applied

for,a license.” (Freedman v. Maryland, 380 U.S. 50, 56;

: Staub v, City of Bazley, 355 U.S..313, 319; Thornhill v.

ei m "esa Said 97.) ;

Petitioner Departed Not for Cuba but for Mexico,

and Without Even Prior Request for Permission

to Enter Cuba; Properly Construed and Con-

stitutionally Limited, Section 1185 Does Not

Reach Such a Departure.

When petitioner departed the United States on the

dates charged in the indictment she went to. Mexico,

not to Cuba. Only after her United States departure,

and after her. arrival in. Mexico in each instance,

did she apply for and ultimately .secure Cuban. per-

mission to enter Cuba. Accordingly, at the time of

each of her “departures” from the United States she

had no ability to, and she did not, “depart” without a

passport from the United States for Cuba “a place out-.

side the United States for which a valid passport is re-

quired” [Indictment; R. 2] within the meaning of

Section 1185.

- Section 1185 covers only departure; it operates only on

the facts existing at the moment of such departure. Prop- —

erly construed and Constitutionally limited, it cannot ap-

ply to the facts at bar. To say that departure can be

rendered penal by a subsequent seeking -and obtain-

ing of permission to enter Cuba is to defy reason

plication under due process fundamentals, >

Thie may, be inatrate hy vsibagbalesarbaldagben

under the statute as the Government. construes. it if

petitioner on arrival: in Mexico and on. requesting

Cuban entry permission had ‘been: refused® such: :per-

‘mission, or, in Mexico, had: requested: and obtained

permission to énter Cuba but because of other: circum-

NO OLD ENA OOO ALI PSE GE OLN I TG IGY BIE STE TIET ENOL TREY GEL LPS D ILLES SII EA EERIE LTE OE I II I DA uthensadan nen teemiaedis

_—32z—

stances did not in fact travel there. By the Govern-

ment’s thesis the offense would nonetheless be complete

complete at the moment of departing, regard-

of whether travel to Cuba should even-

tuate or not.

The Government’s interpretation is unreasonable and

arbitrary. The statute should be limited and construed

not to apply to departures as at bar where at the time

of departure there does not exist ability to enter (by

existing. permission) the country travel to which re-

quires a Passport not possessed.

v 7

VII.

No Sufficient Presidential Proclamation of Emer-

gency Exists to Support the “Excluding Cuba”

Regulation Under ion 1185 at Bar.

Section 1185 by its terms\applies during peace time

only “during the existence of\ any national emergency

proclaimed by the President”\and then only if the

President {jads and further proclaims “that the interests

of the United States require” the imposition of additional

entry and departure restrictions. _

Presidential Proclamations Nos. 3004 and 2914 at bar

do not supply a proper base under the foregoing require-

dor enforcement of the “Excluding Cuba” regula-

tion Section 1185.

Firstly, Proclamation No. 3004 makes no proclama-

tion of apprehended need for geographical area travel

restrictions. Section 1185 is a criminal statute and must

‘be narrowly construed, and its condition that departure

restrictions must’ be found to be? “require[d]” by’ “‘the

interests:of the United’ States” must. be liberally en-—

TES BRIS eG as 2

“by the “Excluding Cuba” regulation. (Chastleton Corp.

~“~

se a

forced in favor of the accused, so as to require for area

departure restrictions a finding of specific need for ~

particular restriction.

' Secondly, both Proclamations Nos. 2914 and 3004

(issued December 16, 1950 and January 17, 1953, re-

spectively) are bottomed on the existing emergency at

the time of their proclamation of the Korean War;

that foundational premise of both proclamations ceased

with the end of that “war” emergency on July 27, 1953.

This Court is not bound by a decade-old declaration

of a national emergency which is inapplicable to the pres-

ent situation and no longer truly endures. It has the au- —

thority to inquire as to whether there is in fact such a

national emergency in existence today which can sup-

port the restriction upon liberty of travel represented

en pena .

v. Sinclair, 264 U.S. 543, 547-548; East New York Sav-

ings Bank v. Hahn, 326 U.S, 230, 234-235; Woods v.

Miller, 333 U.S..138, 147, Mr. Justice Jackson coricur-

ring. )

: Conclusion. :

Wherefore, the Petition for Writ of Certiorari to the

Court of Appeals for the Ninth Circuit should be

- oof NRE EINE TE PORE LET I TRL HM TET TS TENE NNT IN NTT RTA TOT NT TEN OR RE LLY, IN SM IRB PYLE TU ET TIENT TI ORE BE NT IN TST AEUNBT NES) *

- Joun T. McTernan,... oe es

A. L. Wirin, ee

By Joun T. McTeamam,

‘ Attorneys for Petitioner. —

Wituiam B. Mourns, oe oy awe ae

OF Counsel.

asec E DP St re em _—

~_——— ee on &

ses IO EMOTE EY

‘ APPENDIX A. — E:

Opinion of the District Court.

Memorandum Opinion on Finding dant

Guilty as Charged.

United States District Court, Southern District of

California, Central Division.

United States of America, Plaintiff, vs. Helen Maxine

Levi Travis, Defendant.

Defendant is indicted om two counts for violation of

8 U.S.C. § 1185(b): violations consist of defendant

knowingly and willfully departing from the. United

States for*Cuba on January 22, 1962, and August 18, |

1962, without a valid passport for such travel. It is

agreed that on each departure defendant intended to-go

to Cuba and did go to Cuba. Each of defendant’s trips

to Cuba was accomplished by going to Mexico City with

the intent to obtain authority of Cuban representatives

in Mexico to visit Cuba. On each occasion this authority

was obtained and, as noted above, Cuba was visited. De-

fendant urges that although she left the United States

with the intent to go to Cuba, her entry into Cuba was

dependent on receiving Cuba's permission after ar-

riving in Mexico City and that. to violate the statute —

here involved her departure from the United States. must

have been for a country which was ready-to receive her.

The case of Heikkinen vs. U.S., 355. U.S. 273 at 276,

ane the sacs Ot Ve OG SR ©

support this defense. ays ah

<BR

If there is a legal basis for the restriction of travel by

(hi Gee ‘the promulgation of 22 C.F.R. 53.3, which excludes

i ae Cuba from the list of countries to which a citizen may

ie travel without a passport specifically endorsed for such

travel, then the court concludes defendant is guilty of the

offenses charged. Defendant argues there is no legal

: : basis for the restriction on travel here involved and no

|’ legal basis for making a violation of the restriction a

| criminal offense. Defendant, by way of argument [pg.

3-10 of her Memo in support of motion for judgment

of acquittal], urges that the regulation last above men-

tioned was not promulgated under 8 U.S.C. 1185(b),

which makes violation a crime [1185(c)], but actually

+ under Executive Order 7856 and 22 U.S.C. 221(a) and

5 U.S.C. 151(c) which makes no provision for violation

thereof to be a crime. This position of defendant is not

supported by the opinion of the District Court in Mac-

Ewan vs. Dean Rusk, [D.C.E.D. Pa. Civil Action No.

33038, decided March 30, 1964] wherein Judge Freed-

man states at pages 8 and 9 of his opinion:

“The Secretary of State does not rely solely on

inherent executive power. He claims statutory au-

; ' thority for the regulations he has promulgated.

| ‘There are two Acts of Congress\ to which the

1 aa | Secretary points a8 the sources of his power. One

i ee ee ae §215 of the Immigration and Nationality Act of

Se 1952, 8 U.S.C. §1185. The other is the Passport

"adeieaa hd tied 3

ns Se nat ie

9 her RO Anis AES Gt PO Aas

oclamatio ie 7 3 2014 on December 16, 1950), regula-

“prescri ck the Potent of State and amend-

os ee

ments thereto and Public seers: No. 179, referred to by

defendant herein.

The MacEwan case, supra, involved an action by

- plaintiffs therein for declaratory judgméht which would

declare invalid regulations issued by the Secretary of

State (22 C.F.R. 53.3) pursuant to which they were re-

fused endorsement on their passports for travel to

Both sides moved for summary judgment. iti

motion was denied and the defendants’ motion granted.

In Zemel vs. Dean Rusk, et al., [D.C. Conti’ Civil ”

Action No. 9549, decided February 20, 1964] Judge

/ Clarie, of a three-judge cdurt, beige the majority

opinion, observes at page 9:

“It is this Court’s finding that Congress has

granted adequate authority to the Executive De-

partment to make these regulations, that their ap-

plication in this instance does not violate due proc-

ess and the statutes which authorize the regula-

tions, 22 U.S.C.A. § 211(a)-and 8 U.S.C.A.

§ 1185 are valid and constitutional.”

and at page 12:

“In this case the authority of the Setnetaty of

State is founded on two specific acts of the Con-

gress, namely, the Passport Act of 1926, Stat /

~ 887, 22 U.S.C. §221(a) and § 215 of the Immigra-

tan and Natonety he ot 66 Stat, is ne

8 USC. § 1185.” 7 qo nee ae

namely, shoe: Peainart hak doh a St

Use § #1 L(9),908. 6.415. of the.

° a5

Nationality Act of 1952, 66 Stat. 163, 190, 8 U.S.C.

§1185, both of which the plaintiff claims are repugnant

to the Constitution.” Both plaintiff and defendants

moved for summary judgment. Plaintiff’s motion was

denied and defendants’ motion was granted. Two of the

judges of the three-judge court sitting on the case filed

opinions concurring in part and dissenting in part

from the majority opinion of Judge Clarie. Judge Smith

disagreed with the view that the area restrictions are

authorized. and Judge Blumenfeld, although agreeing

with Judge Clarie that the area restrictions are a reason-

able regulation ,of travel, did not think the plaintiff

was entitled to a construction of 8 U.S.C. 1185 before

it is raised in a criminal proceeding.

This court concludes, after considering all of the argu-

ments and examination of documents submitted by the

> parties, that Title 22 C.F.R. 53.1-9 was promulgated

under the authority of 8 U.S.C. 1185 and that the

amending regulation (1961) was also promulgated under

said section and Presidential Executive Order No. 3004

which was issued under that statute. In Executive Order

No. 3004, President Truman clearly found as provided

therein ““* * * that the interests of the United States

“require the restrictions and prohibitions, wm OS Said

Executive Order adopted and incorporated therein 22

‘CRR 53.1-9 and authorized the Secretary of State to

“revoke, modify or amend such regulations as he’ may

find the interests of the United States to require.” Such

elegatior ft ee embers by, 2 USC § 301

a id 302. See also8 U. Ss 1185(b)..

_ Defendant urges that the resttictions on travel here

nvolve find no basis in the inherent power of the Ex-

F fg ss So sag

| hain sien nl ere: sie edb phintomaaee control

onic. ?

over travel in relationship between thig Government and

its own citizens as distinguished from control as an in-

strument of foreign policy in the relations of this coun-

try with other countries. This point was considered by

this court on defendant’s motion to dismiss and the

court adheres to its conclusion at that time, that the

conduct of foreign affairs would include the authority

to limit travel to certain areas of the world by citizens

of the country without valid passports.

The .other points made by defendant in support of

her motion for acquittal are that:

(a) Congress, in enacting 8 U.S.C. 1185(b), did not

authorize the Executive to impose the limitations

here involved,

(b) Such construction of the statute delegates legisla-

tive power contrary to Article I, Section 8, of

the Constitution of the United States, and

_(c) Such construction deprives defendant of her right

to travel contrary to the First and Fifth Amend-

ments of the Constitution of the United States.

As to (a) above, the court is of the opinion that the

provisions of Section 1185 are sufficient to impose the

penalty therein provided for violation of the limitation ‘of

travel to Cuba as set forth above. New legi: is not.

believed to be required. See MacEwan, supra, page 12.

Points (b) and (c) above were argued by « fe

‘het stiotion to dismiss and considered by’ the court ta ite

Memorandith Opinion filed October 30, 1963, on de pe. :

ing the motion to dismiss and that opinion is hereby.

adopted and made a part hereof by reference. It is to be

noted that following the motion to dismiss’in the instant

action, further proceedings ‘were’ delayed pending the

—h—

rulings of the courts in the MacEwar. and Zemel cases,

supra, The opinions in those cases, which have not as yet

been reported, discuss and rule on most of the points —

urged by defendant in the case at bar and this court cites

those civil actions in support of its conclusions herein.

’ Defendant depends in substantial part, in support of

her position in the instant case, on the opinion of the

Supreme Court of the United States in Kent vs. Dulles,

357 U.S. 116 (1958). The Supreme Court in the Dulles

case was concerned with the delegation to the Secretary

of State of authority to withhold passports to citizens

because of their beliefs and associations. In the opinion

of this court, the Kent case is clearly to be distinguished

from the situation in the case at bar, as pointed out

and discussed in the court’s opinion re denying de-

fendant’s motion to dismiss, mentioned hereinabove, and

that discussion will not be repeated at this time. For ad-

ditional discussion of Kent vs. Dulles, supra, see also

the MacEwan case, supra, pages 3-6, 17-19 and 23, and

the Zemel case, supra, at pages 19-22, and cases there

cited.

In the recent case of Worthy vs. United States, 328

F.2d 386 (1st Cir. Feb. 20, 1964), the court was con-

cerned with criminal liability on the part of the appel-

lant, Worthy, ‘who had entered the United States with-

District Court, which held that Worthy had unlawfully

unis the’ Wott. Sexies: without a passport in the

ie ee

a valid passport we would be confronted with a —

less difficult problem. A citizen, at»an airport or

pier, without a passport, can refrain from a viola-

tion of the statute by remaining in the country.

So doing, the citizen can continue to exercise all

of the rights and privileges of citizenship and en-

_ joy the protection afforded to him by constitutions

and laws incident to his citizenship.” (Emphasis

added. )

Also: ,

“Since Congress has the power to declare a poli-

cy with respect to foreign affairs, and to impose

reasonable restrictions on the right of the citizen to

travel in foreign countries, it follows that it may .

punish violations of the statute. See Hyde v. Shine.

199 U.S. 62, 25 S. Ct. 760, 50 L. Ed. 90.”

Defendant is so insistent that her departure from

the United States with intent to go to Cuba (by way of

Mexico City) without a valid passport for Cuba does

not violate the statute and regulation involved, that fur-

ther brief comment on the point appears to be in order.

It appears obvious that the intent of Congress was to

allow the President, through the Secretary of State, to

preclude travel to excluded areas or countries in cir-

_ cumstances such as are here involved. In the opinion of

the court, “departure from the United States ‘for

_ Cuba” is tantamount to leaving the United States with

the intent to go to Cuba which, it is agreed, the de-

fendant did, and without a valid passport. If the effect -

of the statute and regulation can be circumvented by a

a ee

“Am

tent of ‘Congress: would be entirely obviated and the

statute and regulation nullified. .

~The court concludes, after consideration of the stipu-

lation as to facts, the oral argument ‘of counsel and

the memoranda of points and authorities filed, that de-

fendant’s motion for acquittal should be and is hereby

denied, and the court finds the defendant guilty as

charged on each of the counts in the Indictment. —

Dated: May 13, 1964. |

E. Avery Crary

United States District Judge

' Mexico. She obtained permission of the Cuban g '

ment to enler Gube alter her arrivel in Mexico, Qn both

APPENDIXB. so

Opinion Below.

United States Court of Appeals for the Ninth Cir-

cuit.

Helen Maxine Levi Travis; Appellant, vs. Wane

States of America, Appellee. No. 19,628.

1Nov. 19, 1965}

Appeal from the United States District Court for the

Southern District of California, Central Division.

Before: Barnes and Koelsch, Circuit Judges; and

Powell, District Judge. | v

Per Curiam: :

This appeal is from a judgment and conviction for

violation of 8 U.S.C. §1185(b) and the regulations

thereunde?; Sections 53.1 through 53.9, Title 22, Code

of Federal Regulations as amended. The indictment in

two coutits charged that on January 22, 1962, and Au- -

gusty18, 1962, the appellant knowingly and willfully de-

parted the United States for Cuba without a valid pass-

port for such travel. A jury trial was waived and ap-

Per bateas, tel Sy Se Comet on 8 Aiea eae

of Facts.

Adpipigid de eh Aieertegn sabia Atel iain pet:

tinent agd material she did not bear a valid United

States passport specifically endorsed for travel to Cuba: _

Appellant had knowledge of the provisions of 8 U.S.C.

§1185(b) and 22 CFR 53.2 and 53.3. Appellant made

two trips to Cuba from the United States, both via

JORG Weeden ye

Oh eh » art 26 Un bets ea ae eee Or i ST mn ey a

ere eer tere

‘

‘occasions of her departure from the United States it

was appellant’s intention to travel to Cuba.

Zemel v. Rusk, 381 U.S. 1, was decided’ by the Su-

preme Court in May, 1965, after this case had been ar-

gued. It was a civil action brought to compel the Secre-

tary of State to issue a valid passport for travel to

Cuba. The plaintiff there sought to enjoin the enforce-

ment of the same criminal statute and regulations under

which appellant here was convicted. The area restric-

tions on thé issuance and use of passports were held

constitutional and an authorized delegation of authority

to the President and Secretary of State. 381 U.S. pages

7 through 13. The court declined to pass on the request

to enjoin the enforcement of 8 U.S.C. §1185(b). It

stated: * 7

“* * * We hold that on either interpretation of ~

the complaint, the court below was correct in re- -

fusing to reach the issue of criminal liability.

“* * * For if we are to avoid rendering a series

of advisory opinions; adjudication of the reach and

constitutionality of §215{b) must await a concrete

fact situation. * * *” Zemel v. Rusk, 381 U.S.

1, at 19, 20.

Appellant attacks the statute, 8 U.S.C. §1185* as not

a restrictions, being void as vague and

c (a) When the United States is at wat or daring the existence

' Of any eeiren sonamnty. precened the Pretent, or, af

not being cited in the promulgation clause of the amend-

ment to the regulations which is referred,to as the “Ex-

cluding Cuba” regulation. (22 CFR 53.3).

Area restrictions have long been used and are recog-

nized as valid. 381 U.S. pages 7 through 13, Section

>1185 made it unlawful to depart for Cuba without a

valid passport in violation of 22 CFR 53.1-53.9, as

amended. A reading of the statute and the regulations

demonstrates the plain and unambiguous meaning to

be that a person is subject to criminal penalties on leav-

ing the United States: for Cuba without a valid pass-

port, That appellant knew this is agreed in the stipula-

tion. The +‘Excluding Cuba” regulation is an amend-

ment and as originally promulgated, 22 CFR 53.1-53.9,

the ‘statute and regulations valid against appellant’s

\\attack. United States v. Healy, 376 U.S. 75, 82; N. 7;

Worthy v. Herter, 270 F. 24 905, 912 (D.C. Cir.

1959); Porter v. Herter, 278 F. 24 280, 282 (D.C.

Cir. 1960); Worthy v. United States, 328 F, 2d 386

(5 Cir. 1964).

(b) After such proclamation as,is provided for -in econ

etn kee ke ee and while ~*

proclamation is in force, it » except as' otherwise provided

the President, and subject to such liniitations and as

eid or tee

the President may authorize and prescribe, be unla

citizen of the United States to from or enter, or attempt. to

:depart from or enter, the U States unless

passport.

pa Ss

Uh cial edict Aimed:tein: sdk Sdagiavinina tie

Cuba as she did not have that country’s consent to en-

ter Cuba when she left the United States. ible

fact situations, including the one here, are suggested in

Zemel v. Rusk, 381 U.S. 1, 19. It is our opinion that

appellant did depart from the United States for Cuba

without a valid passport in violation of 8 U.S.C. §1185-

(b). arp tier A; portion. of, the-opinion of he,Arial

court :

“In the opinion of the court, Sdepastene from the

. United States for Cuba’ is tantamount to leaving

the United States with the intent to go to Cuba,

which, it is agreed, the defendant did, and without

a valid passport. If the effect-of the statute and

regulation can be circumvented by a citizen going

to another country and there obtaining authority

to travel to the excluded country then the intent of

Congress would be entirely obviated and the stat-

ay eel eegeion mllbfie ” (T. 123)

We affirm.

APPENDIX C.

Section 1185 of Title 8 of the United States Code,

enacted as Section 215 of the Immigration and Na- \

tionality Act of 1952, Act of June 27, 1952, c. 477,

Title II, c. 2, 66 Stat. 190, reads in material part as

follows:

Travel Control of Citizens and Aliens During War

or National Emergency—Restrictions and Prohibi-

_ tions on Aliens.

(a) When the United States is at war or during - |

the existence of any national emergency proclaimed eee

by the President, or, as to aliens, whenever there

exists a state of war between or among two or F

more states, and the President shall find that the oe

interests of the United States require that restric-

tions and prohibitions in addiion to those provided

otherwise than by this section be imposed upon the

departure of persons from and their entry into the. -

United States, and shall make public proclamation

thereof, it shall, until] otherwise ordered by the

"President or the Congress, be unlawful— : ‘

* * *

Citizens aren a | }> -

(b) After such proclamation 'as is provided for

in subsection (a) of this section has been made

and published and while such proclamation is in

¥ —- force, *t shall, except as otherwise provided-by the |

President, and subject to such limitations and ex- '

ceptions as the President may authorize and pre- |

scribe, be unlawful for any citizen of the United :

aes States to départ from or enter, or attempt to de-

part from or enter; the United States unless.he |

bears. a valid passport. . , ‘ '

bd J s

‘of the provisions of this section, or of any ordet

or proclamation of. the President promulgated, or

_ of-any permit, rule, or regulation issued thereunder, oe

shalf'tipon' conviction, be fined not more than $5,- °

000, or, if a natural person, imprisoned for fot - a .

more than five years, or both; +o %.

te ee

; | os

.¢ ?

y 9

‘

“y

5 ‘, |

ee. { APPENDIX D..

The “Excluding Cuba” Regulation, January 16,1961, - . ~

Dept. Reg. No. 108.456, 26 Fed. Reg. 482 (amending 22 . : A

-C. F. R. Sec. 53.3 which- follows immediately a as Ap-

Renin ieee a gee es:

Dept. Reg. 108.456. _ hee

SPARS. 53 —FRAVEL CONTROL OF CITI. =) .

ZENS AND NATIONALS IN TIME OF WAR ¢

OR NATIONAL EMERGENCY | | | pe

EXCEPTIONS TO REGULATIONS - ~ - ~

Pursuant to the authority vested in me by para-

graph 126 of Executive Order No, 7856, dated

‘March 31, 1938, issued under the authority of sec-

tion 1 of the act of Congress approved July 3,

1926 (44 Stat. 887, 22 U.S.C. 21la), and section

4 of the act of May 26, 1949°°(63 Stat. 111; 5

U.S.C. 151c), I hereby amend paragraph (b) of ¢

53.3,. Exceptions to regulations in ’§53.2 of Title

Se a Tt ee ee

follows :

§53.3 Exceptions to Regulations in 53.2 | “ é‘

_* * & , é

- (b) When traveling between the United States

and any country, territory or island adjacent there-

to in North, Central, or South America, excluding

Cuba: Provided, That this exception shall,not be

applicable to any such person when traveling to or eee

arriving from a place 6utside the United States for

which a valid passport is required under this part,

if such travel is accomplished via any country or

territory in North, Central, or South America or.

any island adjacent thereto: And provided also, That :

this section shall not be: applicable to, anf seaman - a

- “« s

- ; :

i ~

Boek.

. .

exept a8 provided: in paragraph (ce) of this sec- 5

» tion;7mr_.

Apps D. Section 215, 6 Stat. 190; 8 USC, 1185-and

Kang Ste, A seek eo: 1953, 18 FR,

489)” op

rhs Hetletndsiepinciadt ‘thie tithes shall be-

come effective upon publication in the FEDERAL

Admihistrative Procedure Act (60 Stat. 238; 5

USL... 1003) relative to notice of proposed. rule:

making and delayed effective date are- inapplicable

to this order. because the provisions thereof. in-

volve foreign affairs functions of the United States.

Dated: January 16, 1 ag

. For the Sectetary of State. a of

LOY W. HENDERSO

Deputy Under Secretary for

Administration.

(F.R. Doc. 61-506; Filed, Jan. 18, 1961; 8:54 a.m.)

‘>,

°)

APPENDIX E.

The regulations appearing in, Part 53 of Title 22 of

the Code of Federal Regulations, in their -unamended

form as they appeared prior to January 16, 1961 (i.e.

before promiilgation of the “Excluding Cuba” Regula-

tion reproduced in Appendix: D above), ‘read’ in mate-

rial pert as follows: |

‘Part 53—Travel C ontrol of sis and Na- -

tionals in Time of War or National Emergency.

. §53.1 Definition of the term “United States.”

The term “United States” as used in this part in-

cludes the Canal Zone, and all territory and wa-

_ ters, continental or insular, subject to the jurisdic-

tion of the United States.

§53.2 Limitations upon travel. No citizen of the

United States or person who owes allegiance to the

United States shall depart from or enter into or

attempt to depart from or enter into any part of

the United States as defined in §53.1, unless he

beats a valid passport which “has been issued by

or under authority of the Secretary of State or

pov ing econ Sennen Si aloes espe. nce Tg

‘scribed in $53.3.

§53.3 Exceptions to BB, in §53.2. No

"valid passport shall be required of a citizen of the

United States or of a person who owes allegiance -

‘to the United States:

* *+ *

Mi : _~(b) When traveling ‘between the United States

said any country or territory in North, Central or

: _... South America or in any island adjacent thereto:

Provided, That this exception shall not be appli-

? __ cable to any such ‘person when traveling to or ar-

mess | riving from a place outside the United “States for

which a valid passport is required under this part,

if such travel is accomplished via any country or

territory in North, Central, or South America or

any island adjacent thereto: And provided also,

That this section shall not be applicable to any sea-

man except as provided in paragraph (c) of this

section; * * *,

PPR S SANS

nO ate 3 I OI

a A a oa

~ =

—e wg re

x =~ a ne ie een mmrmrpar rare

Gapeeenaren as 5 ln the oa 6 a at

SSS

i Pe eS eee SS eg

nes cae Sree TEE Oe. I GO SORE EP AO LOR tt PF OTTO

ee, *

-%% | APPENDIX F.

~ Public Notice 179, January 16, 1961, ” Fed, Reg,

492, reads in full as follows: ;

DEPARTMENT OF STATE

[Public Notice 179] Xe

Restrictions on Travel to of in‘Cuba

. In view of the conditions existing in Cuba and

in the ce of diplomatic ‘relations ybetween that

country and the United States‘of America I find

that the unrestricted ‘travel by United States citi-

zens to or in Cuba would be contrary to the for-

eign policy of the United States and would be other-

wise inimical to the national interest.

Therefére pursuant to the authority vested in me

by Sections 124 and 126 of Executive Order No.

7856, issued on March 31, 1938 (3 F.R. 681, 687,

22 C.F.R. 51.75 and 51.77) under authority .of

Section 1 of the Act of Congress approved’ July 3,

1926 (44 Stat. 887, 22 U.S:C. 2lla), all United —

States passports are hereby declared to. be invalid

for travel to°or in Cuba except the passports of

United States citizens now in Cuba. Upon depar-

ture of such citizens from Cuba their passports.

shall be subject to this order.

Hereafter. United States passports shall not be

valid for travel to or in Cuba unless specially en-

dorsed for\such travel under the authority of

the SecretaryYof State or until this order is re-

voked. f :

Dated: January 16, 1961.

For the Secretary of State.

LOY HENDERSON, == -

: Deputy Under Secretary for 4

mr Administration

OP. SIT SOT

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z APPENDIX G.

Press Release No. 24, January 16, 1961, 44 Dept. of

State Bull. 178, reads in fullas follows: {

PRESS RELEASE No. 24

The Department of State announced today that

in view of the United States Government’s inabil-

ity, following the break in diplomatic relations be-

tween the United States and Cuba, to extend ‘nor-

mal protective services to Americans. visiting Cuba, .

United States citizens desiring to go to Cuba must

until further notice obtain passports specifically en-—

dorsed by the Department of State for such travel.

All outstanding passports, except those of United

States citizens remaining in Cuba, are being de-

clared invalid for travel to Cuba unless oe

endorsed for such travel.

~ The Department contemplates that exceptions to

these regulations will be granted to persons whose

travel may be regarded as being in the best interests

of the United States, such as newsmen or busi-

nessmen with previously established business in-

terests. ., ‘

Permanent resident aliens cannot travel to Cuba

unless special permission is obtained for this pur-

pose through the United States Immigration and

Naturalization Service.

Federal regulations are being amended to sah

these requirements into effect.

These actions have been taken in conformity with

the Department’s normal practice of limiting travel

to those countries. with which the United States

does not maintain diplomatic relations.

PE OAR EI BOP CEES OWE

APPENDIX H. 6)

Presidential Proclamation, No. 3004, January 17,

1953, 67 Stat. C31, reads in’ material ‘part as follows:

‘ A Proclamation

WHEREAS section 215 of the Immigration and

Nationality Act, enacted June.27, 1952 (Public Law

414, 82nd Congress; tat. 163, 190), authorizes

the President to impose restrictions and prohibitions

in additfon to those otherwise provided by that Act

upon the departure of persons from, and their en-

try into-the United States when the United States

is at war or during the existence of any national

emergency proclaimed by the President or, as to

aliens, whenever there exists a state of war between

or among two or more states, and when the Presi-

~ dent shall find that the interests of the United

States so require ; and

WHEREAS, the national emergency. the, exist

ence of which was proclaimed on. December 16,

1950, by Proclamation 2914 still exists; and

WHEREAS because of the exigencies of the in-

ternational situation and of the national defense

then existing Proclamation No. 2523 of Novem-

ber 14, 1941, impbsed certain restrictions and pro-

hibitions, in addition to those otherwise provided

by law, upon the departure of persons from and

WHEREAS the exigencies of the international

* situation and of the national defense still require

that certain restrictions and prohibitions, in addi-

perdi pe regPocrmarbeingl irre BS be im.

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posed upon the departure of persons from and their

entry into the United States: .

NOW, THEREFORE, I HARRY S. TRU-

MAN, President of the United States of America,

acting under and by virtue of the authority vested

in me by section 215 of the Immigration and Na-

- tionality Act and by section 301 of Title 3 of the

United States Code, do hereby find and publicly

proclaim that the interests of the United States

require that restrictions and prohibitions, in addi-

tion to those otherwise provided by law, be imposed

upon the departure of persons from, and their en-

try into, the United States; and I hereby prescribe

and make the following rules, regulations, and

orders with respect thereto:

1. The departure and entry of citizen#and na-

tionals of the United States from and into the

United States, including the Canal Zone, and all

territory and waters, continental or insular, subject

to the jurigdiction of the United States, shall be

subject to regulations prescribed by the Secre-

tary of State and published as sections 53.1 to

53.9, inclusive of title 22 of the Code of Federal

Regulations. Such regulations are hereby incor-

porated into and made a part ofsthis proclamation;

and the Secretary of State is hereby authorized to z

revoke, modify, or amend such regulations as he

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- of the Government to cooperate with the Secre-

tary of State in the execution of his authority .

Foe BE

under this proclamation and apy subsequent proc-

lamation, rule, regulation, or order issued in pur-

suance hreof; and such’ departments and agencies

shall upon request make available to the Secretary -

of State for that purpose the services of their re-

spective officials and agents. I enjoin upon all of-

ficers of the United States ch with the exe-

cution of the laws thereof the utmost diligence in

ing violations of sections 215 of the Im-

migration and Nationality Act and this préclama-

tion, including the regulations of the Secretary of

State. incorporated herein and made a part hereof,

and in bringing te trial and “punishment any per-

sons violating any provision of that section or

of this proclamation.

To the extent permitted by law, this proclama-

tion shall take effect as of December 24, 1952.

TE URI ISLE IR a

APPENDIX L.

Presidential Proclamation No. 2914, December 16,

1950, 64 Stat. A454, reads in material part as follows:

A Proclamation . Sark,

WHEREAS recent ‘eyents in, Korea and else-

where constitute a grave threat to the peace of the

world and imperil the efforts of this country and

those of the United Nations to prevent aggres-

sion and armed conflict ; and

WHEREAS world conquest by communist im-

perialism is the goal of the forces of aggression

that have been loosed upon the world; and

WHEREAS 4f the goal of communist imperial-

ism were to be achieved, the people of this coun-

try would no longer enjoy the full and rich life

they have with God’s help built for themselves

and their children; they would no longer enjoy

the blessings of the freedom of worshipping as

they severally choose, the freedom of reading and

listening to what they choose, the right of free

speech including the right to criticize their Gov-

ernmenc, the right to engage freely in collective

bargaining, the right to engage freely in their own

business enterprises, and the many other freedoms

and rights which are a part of our way of life;

WHEREAS ‘the increasing menace of the

ae: forces of communist aggression requires that .the

Sd national defense of the United States be strength-

~ened-as speedily as possible:

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NOW, THEREFORE, I HARRY S. TRU-.

MAN, President of the United States of America,

do preclaim the existence of a national emergency

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* * *

IN WITNESS WHEREOF, I have hereunto

set my hand and caused the Seal of the United

States of America to be affixed. ‘

. Done at the City of Washington this 16th day

of December, 10:20 a.m., in the year of our Lord

nineteen hundred and fifty, and of the Independ-

ence of the United States of America the one hun-

dred and seventy-fifth. ;

HARRY S. TRUMAN |

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.