Petitioners Brief — Travis v. United States
Supreme Court brief1967
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Sp YoTRN OT RRC ON ER ET ITI OI ETE TL FA I IE ET I Te Te tL RE ee we
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SUBJECT ‘INDEX
Page
Opinions below 1
Jurisdiction 1
Statute, regulations and proclamations involved ...... 2
Questions presentéd ... ‘ 2
Statement of the case | 5
Summary of argument 11
Argument 19
Congress i in enacting Section 1185 did not author-
ize the issuance thereunder of criminal-sanction
- area travel bans 19
II.
To enforce 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 .. 36
Ill. .
The “excluding Cuba” regulation was not validly
pn under Section 1185 .. eneees
Cased to authorize the “excluding C
-regulation at bar, Section 1185 -unconstitution-
ally delegates legislative power without ade-
,g@luate or any standards : .. 54
V.
Construed to authorize the “excluding Cuba”.
regulation at bar, Sate | 1185 deprives de-—
fendant of persoiial liberty and of freedom’ of”
-*’ speech, thought and association, catecy aE
First and Fifth Amendments {. 58
ii.
. VI <Page
No sufficient presidential proclamations of emer-
gency exist to support the “excluding Cuba
regulation under Section 1185 at | tO os
VII.
Defendant departed not for Cuba but for Mexico,
and without even prior request for permission
to enter Cuba; properly construed | and constitu-
tionally limited, Section 1185 does not reach’
such a departure .. 69
Conclusion ss liabisbistabiledh 72
INDEX TO APPENDICES
Appendix A. Section 1185 of Title 8 of the United
States Code enacted as Section 215 of the Immi-
gration and Nationality Act of 1952, Act of June
27, 1952, c. 477, Title II, c. 2, 66 Stat. 190 ............ A-l
Appendix B. The Excluding Cuba Regulation,
January 16, 1961, Dept. Reg. No. 108.456, 26
Fed: Reg. 482 (amending 22 C. F. R. Sec. 53.3)
sales B-1
Appendix C. Part 53 of Title 22 of the Code of
Federal Regulations . -C-1
Appendix D. Public Notice 179, January 16, 1961,
eg Be ree» Reb alies lalla cB Tassie bie eaaiisnes he D-1
* Appendix E. Press Release No. 24, January 16,
1961, 44 Dept. of State Bull. 178 ..0.....--eoscs-ccseeeeeone E-1
Appendix F. Presidential Proclamation. No. 3004,
January 17, 1953, 67 Stat. C31 ..F-1
Appendix’ G.-. Presidential Proclamation No. 2914,
a7 December 16, 1950, 64 Stat. A454 G-1
y,
a ~~
ili.
TABLE OF AUTHORITIES CITED
Aptheker v. Secretary of State, 378 U.S. 500 ......16, 58
Baker -v. Carr, 300° US: 166 22.2 2s Fe 18, 68
Bouie v. City of Columbia, 378 U.S. 347 39
Buttfield v. Stranahan, 192 U.S. 470 aw
Cantwell v. Connecticut, SIO'US, ZOO Ginn coeoneonce 63
Chastleton Corp. v. Sinclair, 264 U.S. 543 ............ 18, 68
Colt v. United States, 158 F. 2d 641 69
Cox v. Louisiana, 379 U.S. 559 ....14, 17, 39, 43, 62
East New York Savings Bank v. Hahn, 326 U.S.
230 wvsnag ae
Fahey v. Mallonee, 332 U.S. 245 16, 55, 57
Field v. Clark, 143 U.S. 649 ........ io oe
Flaxer v. United States, 358 U.S. 147 .................. A 5, 46
Freedman v. Maryland, 380 U.S. 51 ........ .. 64
Griswold v. Connecticut, 381 U.S. 479 good OD
Hampton & Co. v. United States, 276 U.S, 394 .... 57
Heikkinen v. United States, 355 U.S, 273 ............ 45, 70
Johnson v. United States, 318 U.S. 189 39
Jones v. United States, 362 U.S, 257 39
Kent v. Dulles, 357 U.S. 116
2, 19, 22, 28, 33, 57, 58, 59
Kraus & Bros. v. United States, 327 U.S. 614 ........
4. 40, 41, 51, 52
Kunz v. ies York. “340 U.S. 290 17, 63
Lambert v. California, 355 U.S. 255 COOL,
Lamont v. Postmaster General, 381 US. S01. Stes I
Largent v. Texas, 318 U.S, 418 63
iv.
Page
Lemke v. United States, 211 F. 2d 73, cert. den. 347
U.S. 1013 : : . 71
Liverman v. United States, 260 F. 2d 286 ................ 71
Maggio v. Zeitz, 333 U.S. 56 Aivsinngessis SOM
McBoyle v. United States, 283 U.S. 25.0.0... 51
Morissette v. United States, 342 U.S. 246 ................ 45
Murphy v. Waterfront Commission of New York,
378 U.S. 52 ..... ‘ 43
Niemotko v. Maryland, 340 U.S. 268 ............ Site
Panama Refining Co. v. Ryan, 293 U.S. 388 ............
....04, 55, 57
Quinn v. United States, 349 U.S. 155 00.0.0... 39, 45
Raley v. Ohio, 360 U.S. 423 ..........eeceeceseeeeees 14, 39, 42
Saia v. New York, 334 U.S. 558 .... 63
Schechter Corp. v. United States, 295 U.S. 4985 ........
BF errant Msi 54, 55, 57
Scull v. Virginia, 359 U.S. 344 ~ oe
Smith v. California, 361 U.S. 147 cabinets 45
Staub v. City of Baxley, 355 U.S. 313 .................... td
Stevens v. Marks, 383 U.S. 234 ....39, 43, 45
Thornhill v. Alabama, 310 U.S. 88 ............ 17, 60, 62, 64
Todd y. United States, 158 U.S. 278 ... foacatbercte Salle»
United States v. Cardiff, 344 U.S. 174 .......... 15, 39, 42
United States v. Coplon, 185 F. 2d 629 ae |
United States v. Eaton, 144 U.S. 677 52
United States v. George, 228 U.S. 14 52
- United States v. Halseth, 342 U.S, 277 51
United States v. Harris, 177 U.S. 305 51
Sd
Page
United States v. Laub, 253 F. Supp. 433 ..10, 12, 32, 44
United States v. Mersky, 361 U.S. 431
40, 44, 51, 52
United States v. Moses, 205 F. 2d 358 71
United States v. Murdock, 290 U.S. 389 45
United States v. Patterson, 219 F. 2d 659 ................ 69
United States v. Plesha, 352 U.S. 202 2 2
United States v. Resnick, 299 U.S. 207 “51, 52
United States v. Standard Brewery, 251 U.S. 210 .. 51
United States v. United Verde Copper Co., 196
U.S. 207 z DE,
United States v. Weitzel, 246 U.S. 533 51/
United States v. Wiltberger, 18 U.S. 76
Peewee 51, 55, 57
Viereck v. United States, 318 U.S. 236 52
Watkins v. United States, 354 U.S. 178 ........... 39, 44
Williamson v. United States, 207 U.S. 425 ............ 51
Wood v. Georgia, 370 U.S. 375 60
Wood v. Miller, 333 U.S. 138 68
Worthy v. United States, 328 F. 2d 386 ............... 12, 32
Zemel v. Rusk, 381 U.S. 1
2, 3, 9, 11, 15, 16, 19, 54, 55, 57, 61
Encyclopedia :
13 Encyclopedia Britannica, pp. 467, 474 .......... 18, 67
Miscellaneous
56 Congressional Record, 18, 20 ...:.. 23
56 Congressional Record, 5969-5971, 6029-6032,
6061-6068, 6191-6195, 6235, 6246-6248 ............ 24
vi.
Page
| 56 Congressional Record, 597u, 6029-6031, 6066-
“6067, 6191-6192, 6194-6195, 6248 ........ 23
56 Congressional Record, 6029 sy 23
56 Congressional Record, 6192 SES ROS Th Ta as 23
87 Congressional Record, 5047-5053, 5325-5326,
5385-5389 25
87 Congressional Record, 5048 24
87 Congressional Record, 5325-5326, 5386, 5048-
», 5053, 5386-5388 nt
87 Congressional Record, 5326 cerccccecccesseeccveceseee 24
87 Congressional Record, 5052 | ..............:.s--s-s-s-0-0+- 24
104 Congressional Record, 13000 ......... . 34
104 Congressional Record, 13062 ......... .. 33
22 Department of State Bulletin 399 saaceic OD
24 Department of State\ Bulletin 932 -..:.................. 26
26 Department of State Bulletin 7 ...................... 26
26 mt of State Bulletin 736 ..................-... 26
33 ‘Department of State Bulletin 777 .......................- 28
34 Department-of State Bulletin 247-248 .......... 28, 29
35 Department of State Bulletin 756 ..
lis
=" Federal Register 8577 ; 28
Commager, Henry Steele, Heavings Before The
Senate Committee on Foreign Relations On Pass-
~ port, Legislation, July 16, 1958, 85th Cong., 2d
Sess., p. 184 .. 63
Hearings before the Senate Committee on Foreign
~ Relations on Passport Legislation, July 13, 1959,
Pecngcerny Ist Sess., PB 18. grace 35
os Ra eee te a ce ok AR kia ait aa Sine NaI seek iors
7
Page
House Report 485, Control of Travel from and into
the United States, 65th Cong. 2d Sess., pp. 2-3 .... 23
House Report 1365, 82nd Cong., 2d Sess., p. 53 .... 21
Presidential Proclamation of August 8, 1918, 40
Stat. 1829 25
Presidential Proclamation of March 3, 1921, 41
Stat. 1359 .... 25
Presidential Proclamation of November, 1941, 55
Stat. 1696 ; 26
Presidential Proclamation No. 2914, December 16, __
1950, 64 Stat. A454 :....2, 4, 5, 17, 65, 66, 67
Presidential Proclamation No. 3004, January 17,
1953, 67 Stat. C31
2, 4, 5, 17, 26, 47, 50, 64, 65, 66; 67
Presidential Proclamation of April 1, 1953, 66 Stat.
54, 57, 96, 137, 330, 333 26
Press Release No. 24, 44 Dept. St. Bull. 178 ............
...2, 6, 7, 37, 47, 62
Press TRS No. 341, 26 Dept. St. Bull. 736 ......21, 27
Public Law 304, 84th Congress, Ist Sess., 69 Stat.
595 32
Senate Bill 2287, 86th Cong., Ist Sess. ........... 35
Senate Committee on Foreign Relations, 85th Cong.,
ist Sess., April 2, 1957, p. 56 31
Senate Committee on Foreign Relations, 85th. ‘Cong... |
Ist Sess., April 2, 1957, p. 65 “30
Senate Report 431, 65th Cong. 2d Sess. nvecsevwnes 24
eee
Vii,
, Regulations — Page
Code of Petes Regulations, Title 22, Sec. 53.1 .
- 2:5, 47, 49
Code of Federal. Regulations, “Title 22, Sec. 53.2 .
a 7, 10
Code of Federal Regulations; Title 22, Sec. 53.3. .
” 2, 6, 7, 10 .
aonbtinesccameacesearrmce 1003, 6 Fed. Reg. 6069 ..
47, 49, 50
Departmental Seaton 11, 10 Fed, Reg. 11046 ......
Public Notice 179, 26 Fed. Reg., 492 ..
» 2, 6, 7, 12, 14, 29, 37, 47, 49, 53, 62
Regulation No. 108. 456, January 16, 1961, 26 Fed.
Reg. 482 2, 6, 7, 29, 47, 48
pei ~ Statutes
Act of May 22, 1918, 40 Stat. 559 11, 20
Act of March 3, 1921, 41 Stat. 1359 20
Act of July 3, 1926, 44 Stat. 887 ..........7,.12, 19, 46, 54
Act of May 27, 1941, 66 Stat. 54, 57; 96; 137; 330,
333° : s : 20
Act of June 21, 1941, 55 Stat. 252. 11, 20
Act of May 26, 1949, 63 Stat. 111 7, 48
Immigration and Nationality Act of 1952 Sec. 215)
ey 2
United States Code, Title 5, Sec. 1S1c. 27, 48
United States Code, Title 8, Sec. 1185.2, 3,.4, 5, 6 7
, 25, 26
9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22
27, B, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 43
46, 47, 48, 49, 50, 53, 54, 55, 56, 57, 64, 65, 66, 69, 70
Page
United States Code, Title 8, Sec. 1185(b) ........10, 19
United States Code, Title 8, Sec. 1185(c)
ning 45, 47,°50
United States Code, Title 22, Sec>2I1a .......
7, 13, 19, 29, 36, 46, 54
United States Code, Title 28, Sec. 1254(1) ............ 1
United States Constitution, Art. I, Sec. 1 .................. 54
United States Constitution, First Amendment ..........
4, 16, 17, 61, 62, 64
United States Constitution, Fifth Amendment ........
= 4, 16, 17, 61
| Textbooks
1 Blackstone Commentaries; pp. 134-135 .............. 58
Chafee, Three Human Rights in the Constitution of
1787 (1956), pp. 195-196 59, 64
3 Hackworth, p. 530 . 27
5 Wheaton, pp. 76, 95-96 51
——
IN THE
- Supreme Court of the United States
October Tern, 1966
No. 67
HELEN MAXINE LEv1 Travis,
Petitioner,
VS. % .
UNITED STATES OF AMERICA.
7
BRIEF FOR THE PETITIONER.
*
Opinions Below.
The memorandum opinion of the District Court deny-
ing petitioner’s motion to dismiss [R. 42-47] is reported
at 241 F. Supp. 468. The niemorandum opinion of
the District Court finding petitioner guilty as charged
[R. 94-100] is reported at 241 F. Supp. 472.
The opinion of the Court of Appeals below affirming
petitioner’s conviction a rte is pee at 353
F. 2d aie :
The judgment of the Court of Appeals was ent 4 oS
November 19, 1s .(R 112.] A 7 ose cei £5:
on January 4, 1966." TR. 113.] The x titic “— r pcr
tiorari was filed January 28, 1966, and oo 2 tes Boe
April 18, 1966. [R. 113.] “The ju isd “of this
Cotirt is invoked timder 28 U.S.C. Aas
«
‘
Statute, Regulations and Proclarations Involved.
‘The statutory provision involved herein is 8 U.S.C.
Sec. 1185 (Sec. 215 of the Immigration and National-
ity Act of 1952, 66 Stat. 190) (hereinafter referred to
as Section 1185), which appears herein in Appendix A.
The regulation involved herein is State Department
Regulation No. 108.456, 26 Fed. Reg. 482, 22 C.F.R.
Sec. 53.3 (hereinafter referred to as the Exclud-
ing Cuba Regulation), which appears herein in Appen-
dix B. (For convenience, 22 C.F.R. Secs. 53.1, 53.2
and 53.3 as existing prior to the Excluding Cuba Regu-
lation also appear herein in Appendix C.) Public Notice
179 (26 Fed. Reg. 492) and Press Release No. 24
(44 Dept. St. Bull. 178), issued by the State Depart-
ment concurrently with the Excluding Cuba Regulation,
appear herein as Appendices D and E, respectively.
Presidential Proclamation No. 3004 (January 17,
1953, 67 Stat. C31), issued under Section 1185 and to
give that statute effect, appears herein in Appendix F.
Presidential Proclamation No. 2914 (December 16,
1950, 64 Stat. A454), referred to in Proclamation No.
3004 above, appears herein as Appendix G.
: Questions Presented. —
In Kent v. Dulles, 357 U.S. 116, this Court dis-
tinguished between the civil side of the passport power
(dealing with the granting or withholding of the diplo-
matic, safe-passage protections of passports) and the
criminal side dealing with, prohibitions upon exit from
the country..In Zemel v.- Rusk, 381 U.S. 1, the Court
upheld the power of. the Secretary of State to withdraw
~ the safe-passage protections-of a passport from one
travelling to Cuba, but expressly left open the ques-
: 3
tion as to the Secretary’s ‘power to criminally prohibit
such travel under the exit-control sanctions of 8 U.S.C.
Sec. 1185. ‘
The instant case presents that reserved question.
More completely stated, the question presented is
whether the Excluding Cuba Regulation (with accom-
panying Public Notice and Press Release), eliminating
Cuba from the area for. which passports are not re-
quired and requiring a special validation, allowable only
in total discretion, for travel thereto, can support a
criminal prosecution under 8 U.S.C: Sec. 1185 for a
claimed violation thereunder, including under that fun-
damental question the following subordinate issues:
(1) Whether Section 1185 (as distinct from the civil
Act of July 3, 1926, involved in Zemel v. Rusk)
grants statutory authority, backed by criminal
sanction, for an area restriction upon travel such
as the purported Excluding Cuba Regulation at
bar; ‘
(2) Whether said Regulation, in light of prior legisla-
tive and administrative history and administra-
tive declarations indicating area restrictions are
civil only in nature, and not criminal, and in
light further of the considerations stated in (3)
below, can be enforced under Section 1185 as a
_ criminal prohibition without violating the require-
ments of due process of law prohibiting vague-
ness, contradiction and misleading a in the
communication of a criminal pr voneng
(3) Whether said Regulation can be enforced with
criminal sanctions under Section 1185 although
the said Regulation’ was expressly not promul-
oy
(4)
(5)
(6)
scallion
gated under authority of Section 1185 but only
under authority of the civil Act of July 3, 1926,
which bears no criminal penalty for violation of
regulations issued under its terms;
Whether Section 1185, if construed to authorize
issuance thereunder of criminal area travel pro-
hibitions, unconstitutionally delegates legislative
power without adequate or any standards;
Whether Section 1185 and the Excluding Cuba
Regulation, if construed to authorize a crim-
inal restraint against travel to Cuba, including
particularly restraint whereunder special valida-
tion for such travel is allowable only under un-
confined, absolute administrative discretion, de-
prives petitioner of personal liberty and of free-
dom of speech, thought and association contrary
to the First and Fifth Amendments;
Whether Presidential Proclamations Nos. 3004
and 2914 possess presently continuing validity
and effect sufficient to support imposing under
Section 1185 of regulations criminally prohibit-
ing travel to a described area or country;
(7) Whether Section. 1185 and the Excluding Cuba
Regulation can properly be applied to a departure
not directly, to Cuba. but only to Mexico, with ap-
plication, to Cuba for permission to enter being
made only after, not prior to, United States de-
parture. ..
3 on
Statement of the Case.
Petitioner (hereafter referred to as the detentazity
was convicted below on two counts for claimedly violat-
ing Section 1185, and the Excluding Cuba Regulation
under it. The indictment charged that upon two oc-
casions, on January 22, 1962 and on August 18, 1962,
defendant “did . . . depart from the United States with-
out bearing a valid passport, for the Republic of Cuba,
via Mexico. ...” [R. 1-2.]
Section 1185 provides in core that after a Presi-
dential proclamation of a “national emergency” (pro-
claimed in Presidential Proclamations Nos. 3004 and
2914"), and after a further presidential proclama-
tion of necessity? (proclaimed in Proclamation No.
3004, supra), it shall be a crime for any citizen “to
depart from or enter, or attempt to depart from or
enter, the United States unless he bears a valid pass-
port”, “except as otherwise provided by the President,
and subject to such limitations and exceptions as the
President may authorize and prescribe.”
Prior to the Excluding Cuba Regulation it was pro-
vided in 22 C.F-R. Secs. 53.1 et seq., issued under au-
ee med taeda aoa C31, ;
¥ sire, was proce at t recited |
proclaimed in Presidential Proclamtion’ No.
it, December 16, 1950, 64 Stat. A454; A .G: infra, and
declared that
eiective wt Go Heme of Hebielany> dete irarthseomcerh: hie
in in . oot bord sy. 3 r iit deaick bet Woke made,
2The requirement is that the President find and proclaim “that
prohibitions in addition to those ided otherwise than by thi
sway into. the United States Presidential Proclamation _ No.
NTONTTIIC
itiieds
thority of Section 1185, that passports should be re-
quired of all citizens to enter or leave the United: States
except that no passport should be required for citizens
“traveling between the United States and any country
or territory in North, Central or South American or
any island adjacent thereto. . .” (22 C.F.R. Sec. 53.3,
Appendix C, infra.)
The Excluding Cuba Regulation (Regulation No.
108.456, January 16, 1961, 26 Fed. Reg. 482), and Pub-
lic Notice 179, 26 Fed. Reg. 492, and Press Release
No. 24, 44 Dept. St. Bull. 178, issued simultaneously
therewith, purport collectively to at once remove Cuba
from the area under 22 C.F.R. Sec. 53.3 within which
citizens may travel without a passport, and simul-
taneously to declare passports invalid for Cuban travel
without a special validation allowable only in total ad-
ministrative discretion, _ .
Specifically, Regulation No: 108.456 purported ‘to
amend 22 C.F.R. Sec. 53.3 to insert in ‘the language
there exempting from requirement of a passport travel
to “any country . . . in North, Central or South
America or in any island adjacent thereto” the phrase,
“excluding Cuba”, and thereby to require a passport for
Cuban travel. Simultaneously Public Notice 179 declared
all passports “invalid for travel to or in Cuba . . - unless
specially endorsed for such travel under the authority.
of the Secretary of State”, and Press Release No. 24 |
declared “exceptions” to the prohibition on Cuban travel
would be granted By the Secretary only “to persons
whose travel may be’ regarded as being in the best in-
_terests of the United States...”
‘None of these “Excluding Cuba” public acts and
documents—Regulatign No. 108.456, Public Notice 179
or Press Release No. 24—cited or referred to Section. .
1185 in any way as authorizing or promulgative au-
thority. To the contrary, both Regulation No. 108.456
and Public Notice 179 expressly cited as their sole pro-
mulgative authority only the civil Act of July 3, 1926
(44 Stat. 887, 22 U.S.C. Sec. 21la), a statute im-
posing no criminal penalty for violation of regulations
issued under its authority. 4
Thus the promulgative paragraph of Regulation No.
108.456, excerpted for clarity, recites expressly the au-
thority of the Act of July 3, 1926, stating:
“Pursuant to the authority vested in me by . . . the
act of .. . July 3, 1926. . ., I ‘hereby amend
viiaieieks (b) of [22 C.F_R. 53. 3] as follows: ...”
(26 Fed. are 482. )*
In similar manner, Public Notice 179 states simply:
“Therefore pursuant to the authority. .. of . . . the
Act. 29, 0f July 3, 1926... ., all United States pass-
ports are hereby d d to be invalid for travel
to of in Cuba . . .” (26 Fed. Reg. 492.)
As to the prosecution below there are. no disputed
facts. Defendant was tried by the court witha. jury
waived, upon an agreed “Stipulation of Facts.” [R. 49-
52.]
He senescence ut i siaaiiicel adh dils baie
is a citizen [R. 49, 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 [R. 51, par. 11]; that at all
material times she did not possess a valid United States
sorae,pramleaivg cause also refered t gual idole
Stat. C,
ect affecting the are of State. +
=
i
: 3
—8—
passport specifically endorsed for travel to Cuba [R. 51,
par. 11]; and that on January 22, 1962 and on August
18, 1962 defendant “intentionally left and departed from .
. the United States” by plane on the first date and -by
automobile on the.second date. [R. 50-51, pars. 4 and
ee me
The Stipulation recites that defendant did not in ei-
ther instance depart directly for Cuba but rather for
. Mexico, intending in each instance to seek permission to |
travel to Cuba only after her arrival in Mexico. [Jd.]
In each instance defendant 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., to visit Cuba.” At the time of each departure from
_ the United States she “did not have Cuba’s permission
to enter Cuba” and, she obtained that permission_ only
after arrival in Mexico. [R. 50-51, pars. 4 and 7.] On
the first occasion that permission was obtained four
days after arrival in Mexico City, and on the second,
twelve days after such arrival. [Jd.] After the requisite
permission had been obtained for entry into Cuba, de-
fendant traveled from Mexico City to Cuba by plane.
[R. 50-51, pars. 5 and 9.]
After her arrival in Cuba on each of her said jour-
neys thereto defendant travelled in and about Cuba ob-
serving “the living and working conditions of the people
‘ and the effectuation and implementation of various gov-
ernment programs relating to housing, ‘education, agri-
culture, industrialization and public health” and # the
course of such: travels took a number of pictures of
which Exhibits 1A to 1M are representative. [R. 51-52, .
par» 12.], Upon her return to the United States and to oy
7
| aN ; "
g :
\ —:
her home in Los Angeles, California, defendant appeared
before “various groups and gatherings of her fellow citi- ~
zens” ahd reported to them her observations upon her.
travels in Cuba and showed her photographs, Exhibits
1A to 1M. In addition defendant wrote descriptions of
her trips and her observances in Cuba which she dis-
serhinated by mail to friends and acquaintances, and the
copy of her letter dated February 28, 1962, Exhibit 2,
is representative of such materials. [R. 52, par. 13.]
The Stipulation of Facts was duly filed and’ Exhibits
1A to 1M and 2 were duly admitted in evidence. f R.
53.]
By a‘written motion to dismiss the indictment [R. 3-
4] and by an oral motion for judgment of acquittal [R.
53], each supported on leave by written briefs [R. 5-18
and 54-73], defendant challenged in the trial court the
statute and the Regulation on their face and as applied,
upon grounds substantially as expressed herein in the
Statement of Questions Presented above. ,Both said mo-
tions were denied. [R. 42-47 and 94-100.] Defendant
was adjudged guilty on both counts of the indictment
and was sentenced on each count to a fine of $500 and
to six months imprisonment, sunpended on probation.
[R. 102-103. ]
. On appeal the Court of “Appeals below affirmed. [R.
109-112;, 353 F..2d 506.] The Court of Appeals dis-
allowed defendant’s contention that Section 1185 did not
authorize areq travel restrictions under its criminhl
sanctions, citing only Zemel v. Rusk (though that deci- —
sion involved only the civil, safe passage aspect of jean
in f
restrictions and expressly reserved the question of ae
inal authority under Section 1185), and observing only
that, “Area restrictions have long been used and are
- recognized as valid.” [R. 111; 353 Fr2d at p. oe
a ES
The Court of Appeals further rejected defendant’s
contention that the statute and Regulation denied due
process for vagueness and contradiction in the co
munication of a criminal command, citing only the cir-
cumstance that the Stipulation of Facts recited defend-
ant “knew” the contents of Section 1185 and the Ex-
cluding Cuba Regulation. The Court of Appeals mis-
read this Stipulation as signifying defendant “knew”
the meaning of the statute and Regulation as claimed
and contended for by the Government. The true stipula-
tion was only that defendant “knew the provisions of
Section 1185(b) of Title 8, United States Code and Sec-
tions 53.2 and 53.3 of Title 22, Code of Federal Regula-
tions.” [R. 51, par. 11.] This does not at all stipulate
to knowledge of the meaning or effect of the statute or
Regulation as claimed by the Government.™
The Court of Appeals further disallowed defendant’s
contention that her departure in the circumstances de-
scribed in the Stipulation of Facts as heretofore sum-
marized did not m any event coristitute a departure for
Cuba within the prohibition of the statute and Regula-
tion, stating only that if the contrary be held “the in-
tent of Congress would be entirely obviated and the
statute and regulation nullified.” [R. 112; 353 F. 2d at’
p. 508.] The Court below did not address itself to the
remainder of the defendant’s contentions.
», Also before this Court, joined for argument with the
instant case, is the related prosecution in United States
v. Laub (E.D.N.Y., 1966) 253 F. Supp. 433, probable
jurisdiction noted in 384 U.S. 984. There the defend-
ants, who possessed passports but without special valida-
“The circumstance was pointed. out in the Petition for Re-
eneing Bed Sew,
aa i A ES ee BL -
woh Gini
tion for travel to Cuba and who were prosecuted as at
bar under Section 1185, were acquitted by the trial judge _
who found Section 1185 inapplicable to lend criminal
sanctions to area travel bans. . ; :
Summary of Argument.
We deal here with the exit control function of the
passport power, not its diplomatic function as a request
for the traveler’s safe passage. This case presents the
question reserved in Zemel v. Rusk, 381 U.S. 1, whether
the exit control sanctions of 8 U.S.C. Sec. 1185 can be -
used to enjorce area restrictions on travel.
-(1) The terms and the legislative and administrative
history of Section 1185, and of its two predecessor stat-
utes, the Act of May 22, 1918 (40 Stat. 559) and the
Act of June 21, 1941 (55 Stat. 252), of which it is an
exact reenactment, combine to demonstrate that Section
1185 does not authorize issuance under its criminal
sanctions of geographical travel restrictions upon a
traveler’s destination. The terms of the statutes do not
suggest authority for such restrictions, and the legisla-
tive history of the 1918 and 1941 Acts makes it clear
that those statutes were expressly intended as war-
emergency border-control. measures only, designed to
prevent bordér crossi by spies and enemy agents.
The purpose was to regulate travelers, not destinations.
Nodifferent intent was expressed in the passage of Sec-
tion 1185 asa eenactment of the prior statutes. :
There has been a consistent pattern of Administrative
construction of the current.and pred statutes as
providing no crimirial penalty for the efforcement of —
frequently imposed area restrictions. The geographic
limitations imposed, beginning as early as 1919, were
-
ae
cast in safe passage request terms only, without sug-
’ Besting criminal consequences for noncompliance. In
cértain instances the existence of criminal sanctions to
enforce the réstrictions was.specifically disclaimed, and
the safe-passage nature of the limitation was empha-
‘sized. One of *thesé was published in ‘1952 while the
present Section 1185 was under consideration by the ~
Congress. Another was presented to the Congress in
1957 as the ‘carefully considered position of the De-
partment of State. The President and the Department
in 1958 specifically requested the enactment of sanctions
to compel compliance with. area restrictions. In the leg-
islative studies that followed, the Chairman of the Sen- -
ate Committee on Foreign Relations advised the Con-
gress that the law was deficient in failing to provide
such ‘sanctions. The Congress failed to enact the legis-
lation. Finally, the government has admitted, that since
the enactment df Section 1185 in 1952 there have been
approximately 600 known violations of its area restric-
tions. But the first attempts to invoke criminal penal-
ties have’ been confined to the restrictions on travel to
Cuba: the instant case, initiated-in 1963; United States
v. Laub, instituted: in 1964; and Worthy v. United
States (C.A. 5, 1964), 328 F. 2d 386, seat & an
entry rather than a departure.
Consistent with the Department’s long construction of -
area travel restrictions as noncriminal measures, the Ex-
cluding Cuba Regulation, issued January 16, 1961, and.
Public Notice 179 which accompanied and publicized the
Regulation, were cast in the form of a civil, safe-pas-
. sage measure only. Both the Regulation and the Public
Notice cited as promulgative authority only the civil
Ae oF Tay 'S 1926 (44 Stat. 887, 22 US.C. Sec.
sv
-
ad
211a), nat Section 1185,‘and’the Public Notice, reciting
as the cause of the restriction “the absence of diplomatic
relations” with Cuba, declared only that under the au-
thority of the Act of July 3, 1926 “all United States
passports are hereby declared to be invalid for travel to
or in Cuba.” )
By ‘its témns,. and by. legislative history om oe: years,
of consistent administrative construction, Séction 1185,
like its predecessors, is inapplicable to area restrictions
and does not authorize the imposition of stich resfric- °
. tions under its criminal sanctions.
(2) Moreover, even if it be. assumed Section 1185
could now be construed to lend criminal sanctions to
area restrictions, in light of the ambiguity of the stat-
ute and the many explicit and irnplicit . Departmental
acts and statements indicating area reStrictions are not
enforceable under the statute, to uphold criminal liability
_ at bar would violate due process requirements forbid-
ding vagueness, contradiction, and misleading terms in
the communication of a criminal command.
The face of the statute discloses no purpose to au- -
thorize area restrictions. The legislative history: of the
Statute and its exact predécessors shows an express in-
tent to impose only border control over certain types of
persons—to régulate travelers, not destinations. The ad-
ministrative interpretation forms a consistent. pattefn of
area restrictions in the form of refusals to request’
safe passage, and criminal prohibitions have not been
mentioned. As of the time of the offense charged
_here, there had never been a prosecution under Section
1185 or its predecessors for violation of any of the area
restrictions ; nor had one been any declaration that any
a
*
i -
4 A o
: “ .
«
on *
ke
We
of the earlier ar testrictions were or could have been
issued with criminal exit control sanctions under Sec-
tion 1185 or its predecessors. ,
On the contrary there have been affirmative, author-
itative administrative disclaimers of criminal sanctions.
The Department of State itself in 1952 declared that |
area restrictions “in no way forbi[d]” free travel in
violation of their terms but constitute merely “additional
steps to. American citizens of- the risks of [un-
sanctioned] travel.” Further in 1957 the Department
advised the United States Senate upon official inquiry
that travel to an area-restricted country “does not...
[in itself} violat[e] the criminal law,” although criminal
laws may be.violated in the course of such travel and
the traveler must undergtand that he “cannot, be assured .-
of the protection of the United pre. vs
All of these matters of pee tell the i> 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. Jo suffer criminal conviction in such
premises “would be to sanction an indefénsible 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. Loutsiana, 379 U.S. 559, 571.)
Moreover, all'of the foregoing circumstances are
climaxed finally by the promulgation clause of the Ex-
“dluding. Cuba Regulation itself, and by Public Notice
179 which accompanied and publicized the Regulation,
« both. of which cite as promulgative authority only the
civil Act of July 3, 1926, not Section 1185. The Public
Notice, reciting as the cause of the restriction “the ab-
—~——_
/
{
\
sence of diplomatic relations” with Cuba, declares only
that under the authority of the Aet of July 3, 1926 “all
United States passports are ‘hereby “declared to be in-
valid for travel to or in Cuba.”
In all of these premises it appears difficult to deny
that defendant, or any’ other citizen, might reasonably
read the Excluding Cuba Regulation in the light of all
of these circumstances as communicating no criminal-
sanction area travel prohibition. Defendant did not reach
the wrong interpretation of the regulatory maze. Rather
the Government reversed its field by professing to im-
“pose no criminal sanction and after the defendant’s)
travel doing the very opposite. Due process forbids con-
tradictory, misleading or vague* criminal commands.
(United States v. Cardiff, 344.U.S, 174, 176-177.)
(3) Additionally, even if it be assumed that Section
1185 authorizes the issuance under its criminal sanctions
of area travel prohibitions, violation of the Excluding
Cuba Regulation can be no crime at bar because that
Regulation was not promulgated under the sanctions: of
Section 1185 but was expressly promulgated only under
the authority of the civil Act of July 3; 1926, supra, a
_ \gtatute imposing no criminal sanctions for violations of “A
regulations issued under its terms.
' The citizen cannot be held criminally liable for viola-
tion of a regulation issued under a statute which does
not make such a violation a crime.
---- (4) Construed to authorize area travel restrictions
f Section 1185 unconstitutionally delegates - legislative
power without adequate or any standards. Zemel v.
Rusk dealt. with delegation of legislative authority only
as to the civil side of the passport powers; delegation
7
ere
under a criminal statute, as at bar, must be more strict-
ly ‘judged. (Fahey v. Mallonee, 332 U.S. 245, 249-
250.) Moreover, at bar there is no history of adminis-
, trative construction to support criminal area restrictions
such as existed in Zemel to support civil area restric-
tions. In Zemel such administrative construction was
the base premise of the sustaining of the claimed power.
Such premise cannot operate here. Without administra-
tive aid, the statute must fail for improper delegation
of legislative power, for there are no delegation stand-.
ards whatever expressed in the statute’s terms.
(5) Additionally, construed to authorize the Exclud-
ing Cuba Regulation at bar, Section 1185 deprives de-
fendant of personal liberty and of freedom of speech,
thought and association contrary to the First and Fifth
Amendments. The liberty of travel is “basic. in our
values.” It is “closely related to the rights of free speech
and association” (Aptheker v. Secretary of State,, 378
U.S. 500, 517), and in Chafee’s words it “enables
Arketican citizens . . . to be well informed on public
issues” and “contributes to sounder [democratic] deci-
sions.”
Defendant’s travel to Cuba was in this tradition. She
sought to visit Cuba to observe first hand the living
conditions of the people and the social and economic
program of the new government. On her return she re-
* «ported to gatherings of fellow citizens what she had
Thus did she as one citizen attempt to participate
@ fhe nation’s opinion-making processes.
we deal here with the criminal power to prohibit
travel altogether, even as to citizens willing to travel
without diplomatic passport protection.- This court
—17—
should reaffirm that under the First and Fifth Amend-
ments the Government may not prohibit and punish such
‘free, innocent: travel. Punishment so imposed is incon
sistent with the protected liberties of a mgrecenine
nation.
Moreover the restriction on travel at bar vests the
Secretary with absolute, censorial power to allow travel
to Cuba only when and where he deems such “in the
best . interests of the United States.” Such ‘drbitrary,
censorial licensing power over travel, particularly of-
fends Constitutional. fundamentals. (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.)
(6) Even if Section 1185 be otherwise applicable to
area travel restrictions there exist at bar no sufficient
Presidential proclamations of need and emergency to
satisfy the statute’s explicit terms.
Firstly, there is no proclamation-whatever of need for
geographical travel réstrictions, either generally or as to
Cuba as a particular instance. Section 1185 is a criminal
statute and must be narrowly construed, and its pre-
condition that departure restrictions must be found to
be “require[d]” by “the interests of the.” United
States” must be liberally enforced in’ favor of the ac-
cused so as to require for area deparfure restrictions a
finding of specific for such particular restrictions, ;
either individually or t least as a category.
Secondly, both Brocimations Nos. 2914’ and 3004
(issued December 16, 1950 and” January 17, 1953, re-
spectively ) are bottomed on the emergency of the Korean
War existing at the time of their proclamation; that
foundational-premise of both proclamations ceased with
4
—
EE ee ae
nine
the end of that “war” emergency on July 27,1953. ~
(13 Encyc. Brit. 467;474.) This Court: is not controlled
.by-an outdated executive proclamation of an emergency
which by passage of time has ceased to exist. It has
the authority to inquire as to whether there is in fact
such a national emergency in existence today as can
support the restriction upon liberty of travel represented
by the Regulation at bar. (Chastleton Corp. v. Sinclair,
264 U.S. 543, 547-548; Baker v. Carr, 369 U.S. 186,
, 214.)
(7) In any event defendant’s conduct did not. violate
Section 1185 properly construed and Constitutionally
limited. Defendant departed not for Cuba but for
Mexico, and only after her United States departure,
and after her arrival in Mexico on the occasion of each
of her trips,.did she apply for and ultimately secure
Cuban‘ permission 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”
from the United States “for the Republic of Cuba”
within the meaning of Section 1185.
Section 1185 covers only departure; it operates only
on the fact§existing at the moment of such departure.
To say thafydeparture can be rendered penal by a.
subsequent. seeking and obtaining@of permission to enter
Cuba is to defy. reason and to make the statute arbitrary
and void in its application under due process funda-
-mentals.
anes.
ARGUMENT. 319972
I. —
Congress in Enacting Section 1185 Did Not Author-
ize the Issuance Thereunder of Criminal-
Sapction Area Travel Bans.
In Kent v. Dulles, 357 U.S. 116, this Court dis-
tinguished (pp. 120-123,-and 129) between the two
separable functions of passports—the first as a civil
diplomatic act of granting or withholding requests for
safe passage; and the second as an instrument of crim-
inal exit-control. Zemel v. Rusk dealt with the civil
function of the passport for purposes of travel to Cuba
and held as to that matter—the civil withholding of
request for safe-passage—that the civil Act of July 3,
1926, 44 Stat. 887, 22 U.S.C. Sec. 21la, granted the
Secretary authority to impose area travel restrictions
and thereunder to refuse to issue Cuban travel pass-
ports~However, this Court there expressly reserved the
question “whether [a person] can be criminally prose-
cuted under. . . 8 U.S.C. Sec. 1185(b) . . . for.
travel in violation of an area restriction.” (381
U.S. at p. 18.) That reserved question is now posed
here. And the first issue presented under that question,
before. Constitutional issues or particular contentions
are reached, is whether Congress in enacting Section
1185 authorized the imposition of criminal area travel
prohibitions or restrictions. Examination will aco
strate that it did not.
(1) The legislative history of Section 1185, cuastoal
June 27, 1952, demonstrates that it was no part of
the purpose of Congress in enacting that Section to au-.
OE ee epee ereeeey ot criminal area travel
prohibitions.
| ——_—— :
Section 1185, ‘like its two predecessor ‘statutes of
which it is ip the respects here material an exact re-
enactment, is a departure-and-entry statute purposed
at border control. In material terms it makes it crim-
inal, when its provisions are in effect during emergency
~ and by proclamation, for any citizen “to depart from
or enter” the United States “unless he bears a valid
arare subject - such “exceptions as the President
may ... prescri
The Section derives originally from the Act of May
22, 1918, 40 Stat. 559 (hereafter cited simply as “the
1918 Act”), which as a World War_I measure was ex-
pressly made operative only “when the United States is
at war.” That Act prohibited citizen entries and de-
partures in exactly the same terms as quoted above
under present Sectipn 1185.
The 1918 Act expired in effect as to World War I by
Congressional resolution on March 3; 192b (41 Stat.
1359.) Thereafter, in 1941 Congress passed the Act of »
June 21, 1941; 55 Stat. 252 (hereafter cited as “the
1941 Act’), amending the 1918 Act to make its terms
and provisions (which were heft unchanged) effective
either during war or during.the then existing “national
emergency” proclaimed by the President on May 27,
1941. The 1941 Act was continued in operative effect
by Congressional joint resolutions (66 Stat. 54, 57; 96;
137; 330, 333) to and beyond June 27, 1952, on which
date Congress enacted Section 1185. Section” 1185 re-
pealed the 1918 and 1941 Acts (66 Stat. 279) and si-
multaneously reenacted their substantive ‘terms in un-
changed form so far as here material (66 Stat. 190),
thus coffkinuing in effect and reenacting the restrictions
upon citizen entries and departures exactly as ex-
= Zin
pressed in the earlier Acts. Under Section 1185 these re-
strictions were made operative either during “war” or
during “any national emergency proclaimed by the
President.’”* :
There is virtually no legislative history surrounding
Congress’ enactment of Section 1185 except the single,
vitally importartt fact, » as developed in detail under Sec-
tion (2) hereafter, that in’ the “vefy midst of Congres-
sional consideration of the bill which inchided Section
1185 the Department of State issued its official public
statement, May 1, 1952, announcing (despite the then
full effectiveness of the 1918 and 1941 Acts) that its
area passport restriction issued that day, invalidating’
passports for travel to East Europeatt-countries, China
and the Soviet Union, “in no way forbids” citizen travel
to the affected areas. This Department statement came
just two months before the enactment of Section 1185
on June 27, 1952 and climaxed, as hereafter detailed, a
history of administrative practice during the operative
periods of the 1918 and 1941 Acts indicating those
Acts were not conceived to impose criminal restraints
upon area-restricted travel. ,
The only direct Congressional legislative history at-
tending the enactment of Section 1185 is the simple
statement in the House Report (H. Rep. 1365, 82nd
Cong. 2d Sess., p. 53) that ‘the provisions of the new
from
“Press Release No. 341, seta titan iets ticeiai eid
section (2). ; )
‘\
—22—
act (Section 1185) “are iticorporated in the bill in prac- |
tically the same form as they now appear in the Act.
of May 22, 1918 [as continued in force by the Act of
-June 21, 1941].” Accordingly the true legislative his-
tory of Section 1185 is, in a substantive sense, the legis-
lative history of its two exact predecessors; the 1918
- and 1941 Acts. (Kent v. Dulles, 357 U.S. 116, 137,
dissenting opinion; United States v. Plesha, 352 U.S.
202, 205.) The history of those Acts, as will be seen,
demonstrates clearly that they were conceivéd and in-
tended as entry and departure, border-control statutes
only, designed primarily to prevent entries or departures
~ by spies, couriers or citizen foreign agents, and were
not intended to impose or to authorize under their crim-
inal sanctions geographical area travel prohibitions re-
stricting the travel of persons lawfully qualified to travel
generally. They were meant to regulate travelers not to
censor destinations.
(a) Thus, firstly, the legislative history of the orig-
inal parent act, the Act of May 22, 1918, abundantly
demonstrates ~ that Congres? object and concern in
creating that Act was to deny exit and entry to any
persons engaged during the then existing war in activ-
ities in the interest of Germany and her allies. The
purpose was to Close the borders to all egtries or exits
not scrutinized through the-requirement of a passport, _
and by such scrutiny to exclude spies, saboteurs and
agents of the enemy.
’ President Wilson, in calling upon Congress for the
1918 legislation said it was requiréd because the exigen-
cies of the war made it “necessary . . . to create a
very definite and’ particular control over the entrance
and departure of all persons into and from the United
—23—— or
States.” (56 Cong. Rec. 18, 20.) The House Report
upon the measure observed ‘that: existing law “leaves
American citizens and neutrals perfectly free to come and
go” across United States borders even though engaging
in espionage or related activities, or suspected thereof,
and concluded, “New legislation is the only remedy.”
-(H. Rep. No. 485, “Control Of Travel From. and Into
The United States”, 65th Cong. 2d Sess., pp. 2-3)
In the Senate Mebates the spokesman for the bill said
it was “supplementary to the espionage laws” and that
its “chief object” was to scratinize and deny border
passage to “aliéns and alien enemies and renegade citi-
zens” engaging in or subserving espionage who “can
now enter and depart without any power .. . [in
the Government] to intercept or delay them.” (56
Cong. Rec. 6192.) In the House debates the House
spokesman said the bill was “a much-needed measure
to stop a gap” in the law; he said its “purpose is to
give . . . the Government power to control ingress to
and egress from the country”, power then lacking “even
[as to] people,suspected of not being loyal . . . [or]
in the employ of enemy governments.” (56 Cong. Rec.
6029.)
Time and again in the debates on the 1918 ‘Act the
purpose is reiterated to impose border éontrol, to scruti-
nize all travelers in order to identify and deny exit or
entrance to spies, agents and couriers and persons who
_ have violated or are fleeing from the law.* Nowhere
in the debates is there even a suggestion of any pur-
pose\to either authorize or impose any regulation of the
destinations of citizens innocent of any such character-
*56 Cong. Rec. 5970, 6029-6031, 6066-6067, 6191-6192, 619-
6195 and 6248.
MS : ; ‘ |
ieee
- istics.’ Within the contemplation of, Congress’ plain
and evident purpose a citizen once qualifying generally |
for a passport, and thus for. exit, might a freely
wherever he might please.
(b) The legislative history of the 1941 Act, the Act
of June 21, 1941, is in all respects similar. The House
spokesman for the’ 1941 bill, in, the House’ debates, de-
' Clared the bill’s “sole purpose” was to create “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 espion-
age, and whether their coming in or going gut would be
inimical-"to the interests of the United States.” (87
start Cong.’ Rec. 5082.) There was no purpose ‘to interfere
with the free afta full right to travel of anyone qualify-
ing fot and entitled to the issuance of a passport. Thus
a statement by a Department spokesman, read to the
House, adfirmed that the bill’s concern was with “per-
ons «, . engaged in espionage and subversive activities
cr} in activities inimical to the best interests of
op the United States”, and declared, “It is not contem-
plated, should the proposed legislation be enacted into
law, to restrict or to prohibit or in any way to impede
the legitimate travel of citizens : . .” (87 Cong. ‘Rec.
5048, emphasis added.) This precise language was
subsequently embraced in the concluding paragraph of
the report of the Senate committee reporting on the bill,
and was specifically i rated in the record of ‘the
\ Senate debate. (87 Cong.” ems Sen. Rep. No. 444,
77th Cong. Ist Sess.) j
756 Cong. Rec. 5069-5971, 6029-6032, 6061-6068, 6191
6235. 6246-6248; H. Rep. No. 485, .65th Cong. 2d Sess.,
Sen. Rep. No. 431, 65th Cong. 24 Sess. :
25— { x
Moreover again, as in the case of the 1918 Act, the
debate attending the consideration and passage of the ‘
1941 Act bespeaks repeatedly a Congressional purpose
to close the borders to spies and Dereone: deemed dan-
gerous to United States interests.* Again ‘nowhere in
such debates in their entirety is there any_suggestion of
purpose to impose or to authorize the issuance of regu-
lations imposing area travel restrictions.® ;
(2) Moreover, the limiting-import of the foregoing
legislative history is corroborated by the form and cast-
ing of the area restrictions undertaken by the Secretary
of State during the operative periods of the current and
predecessor statutes. There is a consistent history begin-
ning under the predecessan statutes, continuing through
the period of Congressional consideration of the pres-
ent Section 1185 in 1952, ‘and extending long after
1952, of area restrictions cast in civil terms only. Fre-
quently the Department specifically explained its geo-
graphical limitations as carrying no criminal sanctions
for noncompliance.
(a) Prior to the enactment of Section 1185 on June
27, 1952 the Secretary of State proclaimed area travel
restrictions upon five occasions within the periods of
the operative effect of the 1918 and 1941 Acts ( mnt
1921 and 1941-1952).” These were:
1. Restriction in 1919' as to Germany (3 Hack-
worth, Digest of International Law, 530) ;
_ 987 Cong. Rec. 5325-5326, 5386, 5048-5053, 5386-5388,
7°87 Cong. Rec. 5047-5053, 5325-5326, 5385-5389.
eee 1918 or was in effect
by Presidential Proclamation
tod 41, Stat ugust 8, 1918 and March 3, 1921. (40 Stat. 1829
ne cee 1353) The: 1941 Act was ia effec by: cnet
Presidential proclamations and Congressional extensions from
(This footnote is continued on the next page) —_-
—26—
2. Restriction in 1950 as to Bulgaria and vita dared
(22:Dept. St. Bull, 399) ;
3. Restriction in 1951 as to Czechoslovakia (24
: Dept. St. Bull. 932) ;
4. Restriction in 1951 as to Holgicy (26 Dept.
‘St. Bull. 7);
5; Restriction in 1952 as to East European coun-
tries, China and the Soviet Union (26 Dept. St.
Bull. 736).
¥
Without exception all of these area restrictions issued
during the operative periods of the 1918 and 1941 Acts
were cast in civil, safe passage terms only, without sug-
géstion of relevance to the 1918 or 1941 Acts or to
criminality. *
Moreover, in two of the restrictions the civil-only,
non-prohibitory nature of the restrictions was made par-
ticularly clear and explicit.
Thus, for example, in the 1919 restriction as to travel
to Germany, the Department’s announcement indicated
plainly that despite the restriction citizen travel to Ger-
many without a: passport-was not prohibited but was
_ merely placed at a trayeler’s own risk. In its announce-
ment the Department declared that it was “not now
issuing or authorizing issuance . - of passports for
Germany” but that it “interposes no ee are to travel’
there without a passport by any person with. “important ©
. business”, though “such persons should understand
cee they go upon their own responsibility and at their
own risk. They cannot be guaranteed the same protec-
Sst 5, Gy oe ae Sa ay
¢ 3, was in
effect Preside Prscianmation 3004, January 17,,1953 (67
ao
~ ° —27—
tion 2which they might expect under normal condi-
tions," i bowietaides
The clearest statement of the non-penal, non-prohibi-
tory character of the Department’s area restrictions ap- .
pears in the 1952 restriction of travel to East European
countries, China and the Soviet Union.-As heretofore
noted that Department declaration, issued May 1, 1952, -
came immediately prior to the ‘enactment by Congress,
June 2Z, 1952, of Section 1185, and. in the very midst
of Congressional consideration of ‘that meastre. In the
May 1, 1952 announcement the Department advised the
public it was “stamping all passports not valid for trav-
el” in the specified countries “unless specifically en-
dorsed .. . for such travel.” However, declared the offi-
cial press release, “In taaking this announcement the
Department emphasized that this procedure in no way
forbids American travel to those areas”, but amounts
merely to a “taking [of] additional steps to warn Amer-
ican citizens of the risks of travel in ,. . [such] coun-
tries.”” |
} _
“The full text of the restriction reads: “The Department is
not now ‘issuing ‘or authorizing issuance or amendment of pass-
for Germany. However, the ent interposes no ob-
jection to the entry into Germany of Americans who have impor-
tant and urgent business to ‘transact there. In view of the pres-
ent situation, such persons should understand that they go upon
their own se sibility and at yt ae ee Bri cannot be
guaranteed the same protection whi ight expect under
normal conditions.” (3 Hackworth, supra, p. 530.)
.. The full text of the Department’s announcement (Press*Re-
lease No. 341, 26 Dept. St. Bull. 736) reads as follows:
-“The Department of State announced today that it was: tak-
ing additional steps to warn American citizens of the risk of
travel in Iron Curtain countries by stamping all
not valid for travel in those countries unless ifically en-
dorsed by the rtment of State for such travel.
“In making this announcement, the Department emphasized
that this procedure in no way forbids American travel to
(This footnote is continued on the next page)
« hd
/
—28—
The 1952 reenactment of statutory language having
this history of interpretation and application may be
fairly said to carry an explicit purpose not to impose
penalties to enforce area restrictions on travel. The
Constitutional stature of the right of exit as delineated
in Kent v.. Dulles, supra, would require a specific and
articulated intent to impose such restrictions before
the inferences drawn from this history could be prop-
erly ignored.
(b) The Department’s interpretation and application
of the predecessor language in the 1918 and 1941 Acts
has continued and even been underscored sinc€™énact-
ment of Section 1185 to and until the very recent pres-
ent.
Since the enactment of Section 1185 the Department
has announced area travel restrictions upon four occa-
sions. These are:
1. Restriction in 1955 to Albania, Bulgaria, China,
North Korea and North Viet Nam (33 Dept. St.
Bull. 777) ;
2. Restriction in 1956 as to Hungary (34 Dept.
. St. Bull. 247-248) ;
3. Restriction in 1956 as to Egypt, Israel, Jordan
and Syria (35 Dept. St. Bulk 756, 21 Fed. Reg.
8577); :
those areas. It contemplates that American citizens will con-
sult the Department or the abroad to ascertain
the dangers of traveling ‘n countries where ‘acceptable stand-
seeted eaeneleny beseticceeh ts cst
will be seemed follow ‘This
Bana inf cand, Albena, Duinisie, Bulgaria, China,
ungary, oumania or nion
Some Solis Seaeches eons ga
oo
4. Restriction in 1961 as to Cuba, involved at bar
(26 Fed. Reg. 482 and 492). *
Again, despite the full operative effect at all times of
Section 1185 these proclamations unvaryingly have
sounded in diplomatic, safe-passage terms only; none
was said to Rave been issued under or be given criminal
exit-control sanction by Section 1185.
Thus, for example, 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 sanc-
tions is made, despite its full operative effectiveness at
the'time. (34 Dept. St. Bull. 247, 248.)
Moreover, in two of the area restrictions here con-
cerned, the one concerning Israel, Egypt, Jordan: and
Syria in 1956 and the restriction concerning Cuba in |
1961 involved at bar, the Department expressly recited
its promulgative authority only under the non-criminal
power of.~the Act of July 3, 1926 (22 U.S.C. Sec.
211a), mot under the criminal ’ authority of. Section
1185. (21 Fed. Reg. 8577 and 26 Fed. Reg. 482 and
492.)
Additionally, in 1954 the Department. by conduct ex-
pressly construed the area restriction against travel .to
Bulgaria and Hungary announced in 1950 as being non-
penal and non-prohibitory. The.Department. in 1954 in-
formed two newsmen desiring Yo enter Bulgaria that
they might travel there without a passport and “use, as
a travel document ,. . an affidavit in lieu of a pass-
port”, and if Bulgaria would permit them entry: “the
‘
yi em pr se
‘
—3j3o—
Department ... . [holds] no objection.” (Hearings on
Department of State Passport Policy before the Senate
Committee on Foreign Relations, 85th Cong., Ist Sess.,
April 2, 1957, p. 65; hereafter cited as 2997 Senate
Hearings”. )
(c) Furthermore, it is of particular note and impor-
tance that on two occasions the State Department has
in express words conceded and declared that area travel
restrictions are civil-passport regulations only, and are
- not prohibitory in a penal sense. ‘The first occasion is
the one already meritioned of the 1952 area restriction
as to East Eur countries, China and the Soviet
Union wherein ‘oo Bena sistent declared it wished to
“emphasiz[e]” that its restriction “in no way forbids”
travel by American citizens to the affected countries.
The Special Committee to Study Passport Procedures
of the Association of the Bar of the City of New York,
which in 1958 completed a survey of passport and travel
laws under a grant from the Fund for the Republic,
noted this 1952 statement of the Department, and ob-
served, “This appears to have been an honest admission
of the lack of statutory power to enforce an area restric-
tion of this nature.’”™
A secorid and critically important declaration by the
Department that its area , revel restrictions do not
criminally prohibit travel to” any affected countries un-
der Section 1185 or otherwise, came in an official De-
partmental communication to the Senate Foreign Rela-
tions Committee in 1957. There the Committee called
~38Repott; “Freedom to Tra * (1958) issued by ‘the Special
to S Procedures of the. Association of
SoG the Cite of New York. page 70; cers ort te
Se ee
>
=
the Department’s attention specifically to its 1952 dec-
laration referred to above that its.area restrictions “in
no way forbi[d]” affected travel, and asked the De-
partment squarely, “What does it mean when a pass-
port is stamped ‘not valid to go to country X’?” Does
such procedure, the Committee asked, mean merely that
the United States “withdraws its protection” from and
“does not approve” such travel, or does it mean the
United States “prohibits the person from going to coun-
try X?” (1957 Senate Hearings, supra, p. 56.)
After two months of study, the Department officially
replied by a communication to the Committee, July 5,
1957, that a restrictive stamping of a passport “means
that if the bearer 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.”
(/d. at p. 59, emphasis added.) The Department said
there were criminal laws “which might well be violated
in the course of such travel”, mentioning “e.g. The
Tradihg With The Enemy Act,” and, additionally, such
travel might lead to the denial of a future passport ‘and
might raise questions as to whether “false statements”
had been made in obtaining the passport in question.
But the mere travel to the area-restricted country in se
would be no crime. No mention or citation was made of
Section 1185 as even relevant to the issues posed, de-
spite the thorough canvass of the law. _
Surely had the Department in thus communicating
its considered views to the Senate committee truly. con-
ceived that Section 1185 applied to make criminal a mere
leaving of the United States to go to “country. X””, it
would have said so. In. the premises its statement, with
>
=—
its limiting connotations, is eloquent testimony that in
truth the Department viewed its area restrictions under
law as civil, safe-passage procedures only, not as crimi-
nal-sanction measures of exit control.
Moreover, the Department’s view of area restrictions
as civil measures only is further corroborated by the
failure of the Department until the instant case and
two recent related cases ever to prosecute any person
under Section 1185 or either of its predecessor statutes
for violation of any of ‘the Department’s many area
restrictions established during the operative periods of
those statutes. Thus, as related in Umited States v.
Laub, supra, 253 F. Supp. 433, 443-444, although De-
partment statistics show that “approximately 600” per-
sons have violated area travel restrictions since the en-
actment of Section 1185 alone, the Department concedes
that the instant prosecution and the prosecutions in
Umited States v. Laub, in 1964, and in Worthy v.
“United States (C.A. 5, 1964), 328 F.:2d 686, represent
the first attempts by the Department ever to prosecute
persons under Section 1185 for claimed violations of
area travel restrictions.
(d) Finally, that neither Section 1185 nor any other
criminal law applies to give penal effect to area pass-
port restrictions is confirmed by many recent calls upon
Congress for legislation to amend Section 1185, or
other laws, to provide such very effect, and by Con-
gress’ repeated refusal to enact any of such proposals.
Thus in 1957 the report to Congress of the United
States Commission on Government Security, estab-
lished by Public Law 304, 84th Congress, Ist Session
(69 Stat: 595) to survey among other areas of law the
area of travel and passport legislation, specifically rec-
—3j3— 3
ommended that, “Title )8, U.S.C.A., section 1185(b),
should be amended to e it unlawful for any citizen
of the United States to travel to any country in which
his passport is declared tp be invalid.” (Report, p. 475.)
In like vein in 1958 the Special Committee to. Study
Passport Procedures of the Association of the Bar of
the City of New York published its Report heretofore :
described. At page 70 of such Report the Committee
pointedly stated its conclusion of the need for area
travel criminal legislation. Said the Committee:
“The Committee. has not discovered any statute
which clearly provides a penalty for violation of
area restrictions, and this seems to be a glaring
omission if the United States is seriously interested _
in the establishment and enforcement of travel con-
trols. Knowing violation of valid restrictions
should certainly be subject to an effective sanction,
which is not now the case.”
On July 7, 1958, responsive to the Report of the
Commission on Government Security above described
and to this Court’s restrictive decision in Kent v.
Dulles, supra; President Eisenhower recommended to
Congress passag€ of legislation to provide, among other
things, for “clear statutory authority to prevent Amer-
icans 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. objec-
tives or be inimical to the security of the United
States.” (104 Cong. Rec. 13062.)
The legislation called for by the President was em-
bodied in bills introduced in 1958 in the 85th Congress,
2d Session, introduced in the Senate as S. 4110,and in
Cs
4 a
‘the House as H, R. 13318. Congressman Kenneth B.
Keating, in introducing H. R. 13318, declared to the
Congress : :
“It . . . specifically authorizes the Secretary of
State to designate as out-of-bounds to American
passport holders certain areas of the world. Per-
sons. who violate the law/would be guilty ofa mis-
demeanor and liable to imprisonment for 1 year, or»
a fine of $1000, or both.” (104 Cong. Rec. 13000.)
Neither S. 4110 or H. R. 13318 was enacted into law.
They died with the end of the 85th Congress. Con-
gressional failure to act in these respects is not without
significance for the issue here. This was failure to act
in response to a formal message submitted by the
President which particularly requested the imposition of
criminal sanctions to enforce area restrictions. This
failure came against a background of expressions of
Congressional purpose to utilize Section 1185 for ends
other than to authorize area restrictions, as well as a
consistent pattern of administrative utilization of only
the civil function (and not the exit control function)
of passports in implementing area restrictions. In these
lights, Congress’ failure to act suggests a declination
to provide the Executive with sanctions it admitted
were lacking and without which it had so-.long pre-
scribed area travel restrictions.**
Moreover, over 30 bills to accomplish, inter alia, the same ob-
jectives were introduced in the 86th and i
Congress ensue fhe lack, exiting. low of
sanctions to area restrictions criminally appears from the
nine
(e) All of the foregoing legislative and administra-
tive history, it is submitted, combines to establish four
decisive things as to Section 1185. First, the history
shows that Section 1185 was adopted by Congress on
representations that it was to serve limited (border con-
trol) purposes only and without suggestion of authori-
zation fog criminal-sanction area restrictions. Second,
the history shows that the Department, in prescribing
area restrictions, has uniformly cast them only in terms
Of the civil passport function of safe passage, and
consistently construed Section 1185 and its predecessofs
as inapplicable and irrelevant thereto. Third, the his-
tory reveals two express declarations by the Depart-
Poms cag a s understanding of the lack ofcriminal sanc-
og eo his description of the relevant portions of his
bill (S 86th Cong., Ist Sess.) :
“Section 402 makes it unlawful for any citizen-. . . volun-
tarily to travel to an country or area as to which there is
in effect, to his knowledge, a declaration made and
by the President under; Section 401(b). There is at present
Bo tary tuthority, $n punish, travel abroed hy. passport
holders in violation of geographic restrictions, and
this presents a glaring "the Senate Conuniaes 04 Foren?
try or area” deserted are-rentedy ee
as: H.R. 9069 (86-1) (meaning. Cong., Ist Sess.) ;
S. 209 pe pet Ss. (86-1) ; S652 { (86-2) ; maori
1); H.R. 1086 er) HR. 2485 (87-1)
amend Section 11 Ce) to sae cximioal minal “rave oan county
which which is paspor to be 4030
3): H.R. 37 me fee H.R. 2232 (86-1); H.R. 2468 “¥: ;
H.R. 7315 (86- yea H.R. 388 (87-1); H
gg Pong th (881) At hia ytd ot alt Ga.
zens ma’ restrained” to area-
i Pal hagas : H.R. 5455 (6.1), HR 8329
86-1) ; H.R. tah H.R. 2559 (88-1) ; H.R. 2596 (89-1).
pecial bills having a effect as all of the
inclade CHR 5 (88-1) ; H.R. 11621 (86-2); HR.
(89-1). ,
Bee
ment—one to the people and one directly to an agency
of the Congress—officially advising that area restric-
tions do not “forbid” free travel and are not criminal /
in character. Finally, the history is climaxed and com-
pleted by requests of the Congress by the President and
the Department that the Congress enact new legislation
to make violations of area restrictions criminally pun-
ishable—requests which Congress has in all cases de-
clined. All of this establishes a compelling record of ad-
ministrative construction, with congressional acquies-
cence, that Section 1185 does not authorize issuance un-
der its authority of criminal-sanction administrative
area travel prohibitions. “
a >
II.
- To Enforce 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. —
In light of the many explicit and implicit indications
by the Government prior to the instant prosecution that
its area travel restrictions represented merely civil, safe-
passage measures only, not criminal prohibitions, as re-
lated above, and in light of the further circumstance
(treated hereafter in detail under Point III mfra)
that the Excluding Cuba Regulation at bar was ex-
pressly promulgated not under Section 1185, with crim-"
inal sanctions, but only under the Act of July 3, 1926,
22 U.S.C. Sec. 21la, a statute bearing no criminal sanc-
tions, to sustain the conviction below would violate —
“fundamental fairness” and basic due process require-’
ments forbidding vagueness and misleading and con-
a
iis
tradictory terms in the communication of a criminal .
command. me buf
Consider the position of a citizen confronted with the
Excluding Cuba Regulation. It, together with Public
Notice 179 and Press Relase No. 24, purports to require
a passport for travel to Cuba and to simultaneously pro-
vide that all passports shall be “‘invalid for Cuban trav-
el “unless specially endorsed”—a condition to be satis-
fied only in the absolute discretion of the Department.
Moreover it expressly declares it is*promulgated “under
the authority of the . . . act of July 3, 1926,” a stat-
ute providing no criminal punishment for violation of’
its terms ®r of regulations issued under it, not under
Section 1185.
Is the Regulation a criminal command or a mere civil,
safe-passage measure ?
The Regulation itself being unclear, and_reciting
only civil authority for its promulgation, the citizén
turns to the general law.. He examines there, Section
1185. He finds that that statute, as heretofore related,
by its terms carries no suggestion of authority for
area prohibitions upon travel destinations. The terms
plainly import that a passport may. be either. required,
or not required, for entries and departures, as regula-
tions may provide, and even that passports may be de-
nied to travelers deemed disqualified for cause, but
there is no suggestion from the provisions of the statute
that departures for particular countries as destinations
may be prohibited by both requiring and ee «
denying to all persons a passport therefor. od
The ‘citizen smext turns.to. legislative.and: administra:
tive history..He finds there, as heretofore related, that.
both under Section 1185 and its two predecessor acts,
3
Bn Se
the 1918 and 1941 Acts, area passport restrictions ap-
‘pear always to have been formulated and cast as civil,
safé-passage procedures only, not as criminal travel pre*
hibitions. Never in the expression of such passport re-
strictions has the Department even referred to either
Section 1185 or its predecessor acts. Instead the citizen
finds the Department, as in the German travel restric-
tion in 1919, advising the citizen merely that travel
' toa restricted area is “upon [a traveler’s] own responsi-
bility and at [his] own risk,” and further declaring, as
in the 1952 restriction, that area restrictions “in no
way forbi[d]” affected travel but amount merely to
“steps to warn . . . citizens of the risks” thereof. Ad-
ditionally and to like effect he finds the Department in
1957 formally advising a Senate Committee, inquiring
upon the very issue, that if a person travels to an area-
restricted country the consequence is “that . . . he cannot
be assured’ of the protection of the United States”, but
that, as to mere innocent travel in se to such destination
‘the travel “does not . , . mean... [the traveller] will
be violating the criminal law,” though if he otherwise
transgresses in the course of such travel there may be
criminal laws he might violate, ‘ ‘e.g., Trading with the
Enemy Act.”
The significance of the foregoing in terms of due
process is that all of these matters of record—addressed
to the public by of i depart spokesmen—ad-
vise the citizen in substance and in core that area
- passport travel restrictions are not criminal prohibitions
but are civil, safe passage measures only, and that if
a person is. willing to travel “upon [his] own responsi-
bility and at [his] own risk” his otherwise lawful
travel to any affected area will violate no criminal law.
| \ : °
u*
—j9—
In such premises, now to reverse the Goverriment’s posi-
tion and sustain a conyjction as ‘below for a claimed
criminal violation of Section 1185 would be, in this
Court’s words, “to sanction the most indefensible sort
of entrapment by the State—convicting a citizen for ex-
ercising a [right] which, the State clearly had told, him
was available to him.” (Raley v. Ohio, 360 U.S. 423,
438; Cox v. Louisiana, 379 U.S. 559, 571; Stevens v.
Marks, 383 U.S. 234, 245.) |
The requirement of due process and of “fundamental
fairness” (Scull.veVirginia, 359 U.S. 344, 353; John-
son v. United States, 318 U.S. 189, 197; Watkins v.
United States, 354 U.S. 178, 214) is that an accused
may not be held to answ&r “for a crime he could not
with reasonable certainty know he was committing”
(Scull v. Virginia, supra). A criminal enactment must
be so expressed as to give “fair warning” of what is
meant to be prohibited (Bouie v. City of Columbia, ,
378 U.S. 347, 355; United States v. Cardiff, 344.U.S.
174, 176; Raley v. Ohio, supra, 360 U.S. 423,°438: _
Stevens v. Marks, supra, 383 U.S. 234, 245); citizens
must not “be misled” but must be “clearly apprised”
of what the law condemns. (Johnson v. United States,
supra, 318'U.S. 189, 197; Quinn v. United States, 349
U.S. 155, 166.) In consequence, criminal commands
communicated to citiZens in conflicting or contradictory
terms, or with misleading effect, necessarily offend due
process, (United States v. Cardiff, supra, 344:U.S)
174; 176-177; Soul v.' Virginia, supra, 359 U.S.
344, '353; Raley #. Ohio, supra, 360 U.S: 423, 438:
Stevens v. Marks, supra, 383 U.S; 234; 245; cf. John-
son v. United States, supra, 318 U.S. 189, 196-197 ;
Jones v. United States, 362 U.S. 257, 263-264.)
—_40—
It matters not that at bar the command was expressed
in part merely by.g “regulation”. Regulations, in this
Court’s words, in “practical effect” amount to “little
laws” (United States v.. Mersky, 361 U.S. 431, 437),
and when joined with criminal statutes to give crim-
inal penalty must be judged under “the same strict rule
of construction” and the same due process prohibi-
tions against vagueness and ambiguity as apply to
criminal statutes proper. (Kraus & Bros. v. United
States, 327 U.S. 614, 621-622; United States v. Mersky,
supra, 361 U.S. 431, 437.)
Applicable here is the déctiicn in United States v.
Mersky, supra. There a treasury regulation was am-
biguous whether its provisions were intended to imple-
ment one or the other of two statutes. If the regulation
was meant to implement the first statute, dealing with
customs collections, there would be no criminal violation
posed by the conduct there in issue, but if the regulation
related to the second statute, dealing with frauds upon
the public as to the origin of imported goods, there
would be posed a criminal violation. This Court declared
there that the regulation must be construed under “the
rule of. striet construction” and that a reading of the
regulation “leaves the distinct impression” that it was
meant only to implement the customs collection statute,
not the statute as to public frauds. Affirming a dis-
missal of the criminal charge, this Court observed, “If
the intent were [to implement the second, not the first
statute] it should not have been left to implication.
There must be more to support criminal sanctions: [citi-
zens] must not be left to guess the meaning of regula-
tions.” (361 U.S. at p. 441.)
condi ect
In Kraus & Bros. v. United States, supra, 327 U.S.
614, the issue was whether a certain regulation issued
under the Emergency Price Control Act of World War
II prohibited per se all “tied-sales” (sales requiring the
purchase of a a second commodity as a condition for
purchasing a price-controlled commodity) in the sale
and purchase of poultry, or only tied-sales requiring
the purchase of worthless second commodities. The regu-
lation was clear as to coverage of sales within the
second, narrower category, but was ambiguous ; as to
blanket coverage of all tied-sales per se. Observing
that the power of an administrative officer to promul-
gate regulations bearing criminal sanctions “creates a
grave responsibility” whereunder “in a very literal sense
the liberties . . . of others may depend upon his defini-
tions and specifications”, the Court at page 621 de-
clared that regulations must be made “explicit and un-
ambiguous” to support criminal penalties, and ruled ‘the
regulation there inadequate to penalize tied-sales not. in-
volving valueless second commodities. The (Court said
that regulations to support criminal enforcement “must
adequately inform those who are subject to their terms
what conduct will be considered . . . to bring the penal-
ties . . . into operation”, and the “dividing line... .
cannot be left to conjecture.” The prohibition intended
by the regulation must be “so clearly expressed . . . that
the ordinary person can. know in advance how to. avoid
an unlawful course of action.” (327 U.S. at pp. 621-
622.)
At bar the Cuban travel regulation, read with the
public notice and press release issued simultaneously
therewith, and read in. the light of the legislative and
administrative history reviewed above, was at best con-
SS es
oo Ee re ee
lit ow
tradictory and conflicting as to its civil versus penal
nature and character, and at worst affirmatively mis-
leading. In either. case the conviction cannot Constitu-
tionally stand. v
United States v. Cardiff, supra, 344 U.S. 174, demon-
strates the Constitution’s requirement and command.
There a factory inspection statute appeared contradic-
torily both to require consent to authorize an inspec-
tion and to make nonconsent criminally punishable. The
Court voided a prosecution thereunder for nonconsent,
stating at page 176 that the statute gave no due proc-
ess “fair warning” because “it gives conflicting com-
mands. It makes inspection dependent on consent and
makes refusal to Allow inspection a crime.” The Court
concluded, “We Gannot sanction taking a man by the
heels for refusing to grant the permission which this
Act on its face apparently gave him the right to with-
hold.” (pp. 176-177.)
Even if it be assumed there were at bar some indica
at some points of criminal prohibition, at least there is
involved, in the words of the Cardiff decision, the giv-
ing of “conflicting commands.” The State is making
ee conduct it has many times in the past explicitly
and implicitly indicated was only civilly disapproved.
Thus the State is punishing in the defendant what the
State’s prior declarations “on [their] face apparently
gave [a citizen] the right to [do].” (344 US. at p.
177.)
Also closely in point on the score here concerned is
this Court’s decision i in Raley v. Ohio, supra, 360 U.S.
423. There a state investigating commission in effect
assured certain witnesses appearing before it that they
had available a privilege against self-incrimination and
®
eadtines
might rightfully refuse to answer questions. There-
after, after the witnesses had so refused to answer, the
state prosecuted them for criminal contempt, claiming .
that an applicable state statute gave the witnesses auto-
matic immunity, eliminating in law the privilege to re-
fuse to answer. Upon review this Court voided the
convictions there obtained, stating, “After the Commis-
sion, speaking for the State, acted as it did”, to sustain
the contempt judgments would be to sanction “convict-
[ion] of a citizen for exercising a privilege which the
State had clearly told him was available to him.”
(pp. 425-426.) To like essential effect and accord are
the decisions in Stevens v. Marks, supra, 383 U.S. 234,
244-246; Cox v. Louisiana, supra, 379 U.S. 559, 571;
and Murphy v. Waterfront Commission of New York,
378 U.S. 52, 79-80.
It can hardly be denied that the defendant acted
plausibly and reasonably at bar in reading the Depart-
ment’s Cuban area passport restrictions as bearing no
criminal-prohibition sanctions under Section 1185. A
like reading of area restrictions and Section 1185 was
made by the Special Committee of the Association of
the Bar of the City of New York in interpreting the
Department’s 1952 statement that area restrictions “‘in
no way forbi[d]” affected travel as “an honest admis-
sion of the lack’of statutory power to enforce an area
restriction.” The Comfyjttee, after long study of all
of the travel and passport laws, reported it had “not
discovered any statute which clearly provides a penalty
for violation of area restrictions, and this seems to be a
glaring omission . . .” (Report, “Freedom to Travel”,
supra, p. 70.) ;
——4 4...
Moreover, in premises parallel to those at bar a Dis-
trict Court judge has but recently, read Section 1185
as not making penal travel contravening the Cuban
area restriction. In the New York case joined herewith
for argument, United States v. Lamb, the District judge
refused to hold a departure for Cuba (after travel to
Paris and Czechoslovakia) without a specially validated
passport a violation of Section 1185, declaring “there
is a gap in the law” failing to make such conduct penal.
(United States v. Laub, supra, 253 F. Supp. 433, 460.)
In United States v. Mersky, supra, as to the ambiguous
regulations there which, as at- bar, could be read as
either penal or nonpenal in the premises concerned, this
Court in voiding the conviction noted, “A United States.
district judge concurred in [the defendants’] reading of
the regulation. In the framework of criminal prosécution
unclarity alone is enough to resolve the doubts in favor
of the defendants.” (361 U.S. at p. 441.)
At bar, thus, even after long trial and appellate
analysis and briefing it remains at least uncertain and
debatable whether area passport travel restrictions are
criminal and prohibitory in nature or are merely civil,
safe passage measures. As this Court stated in Wat-
kins v. United States, supra, 354 U.S. 178 at p. 214,
“if [a] point is that obscure after trial and appeal,”
with full legal analysis, then “certainly” it “was not
adequately revealed” to the defendant as a layman-
citizen at the time before prosecution when she had
to read the law and determine its penal or permissive
character to determine her conduct. “Fundamental fair-
ness” demands that no citizen “be compelled to make
such a determination with so little guidance.” [Jd.]
Government “may not substitute’ for fair criminal
legislative history “and thereafter hold in [criminal
violation] those who fail fully to, perceive its subtleties.”
(Stevens v. Marks, supra, 383 U.S. 234, 246.).
Moreover, even if the defendant at bar “guessed”
wrongly as to the nonprohibitory, noncriminal nature
of area restrictions, there is lacking at bar the indis-
pensable element of criminal scienter. Section 1185 pun-
ishes only one who violates its terms “willfully”. (Sub-
section (c).) In both a statutory and a Constitutional
sense before a citizen may be validly prosecuted under
such Section he must be made to know by Government
that his act is grimmally prohibited and not merely
civilly disapproved; without such awareness his state of
mind lacks the “willfulness” required for criminal prose-
cution. (Quinn v. United States, supra, 349 U.S. 155,
165-167, 170; Flaxer v. United States, supra, 358 U.S.
147, 151, 152; United States v. Murdock, 290 U.S.
389; Morissette v. United States, 342 U.S. 246; Lam*
bert v. California, 355 U.S. 225; Smith v. California,
361 U.S. 147; Heikkinen v. United States, 355 U.S.
273, 279-280.) : <eaxt
ee
Particularly pertinent here on the score of S@ienter
a inn and Flaxer case, supra. In both of those
cases witnesses before a Congressional investigating
committee raised objections to questions and invoked
claims of privileges not to answer, and ‘th the committee
in each instance failed to make whether ‘the ob-
jections were accepted; and the ittee merely dis-
pleased, or whether the objections were rejected and the
witnesses criminally required to answer. This Court
held the offense of contempt “requires a criminal intent
—6— 2
. —...a deliberate, intentional refusal to answer”, and a
' witness could not in criminal terms be required to
“guess” whether his refusal to answer was merely dis-
pleasing or whether answer was required as a criminal
command. (349 U.S. at pp. 165 and 170; 358 US.
at p. 151.)
So, too, at bar. Consistent with the requirement of
punishable “wilfulness”, the defendant at-bar could not
be required to “guess” whether the Cuban area travel
restriction represented only civil governmental disap-
proval and the withdrawal of the diplomatic sponsorship
of safe passage; or constituted a penal prohibition. So
long as the crucial distinction between mere displeasure
and a criminal command remained an “ambiguity” and
was not resolved by Government “with a reasonable de-
gree of certainty” (Flaxer v. United States, supra, 358
U.S. at p. 151) the defendant’s conduct below could not ~
be “wilful” and punishable in terms of fundamental
law.
ITT.
The “Excluding Cuba” Regulation Was Not
Validily Promulgated Under Section 1185.
Even if it be assumed that Section 1185 authorizes
the issuance under its criminal sanctions of area travel
prohibitions, violation of the Excluding Cuba Regula-
tion can be no crime at bar because that Regulation was
not promulgated under that criminal authorizing stat-
ute, but was expressly promulgated only under the au-
thority of the Act of July 3, 1926, 22 U.S.C. Sec. 211a,
a statute bearing no criminal sanctions for violations of
regulations issued under its terms.
7
The penalty-imposing, criminal-warning portions of
Section 1185 (Subsection (c)) provide for punishment
only of persons who “wilfully violate any of the provi-
sions” of Section 1185 itself “or . . of any .. . regu-
lation issued thereynder.” (Emphasis added.) Section A
1185 and the only régiilations validly issued thereunder
(Departmental Order No. 1003; 6 Fed. Reg. 6069, as
amended by Departmental Regulation 11, 10 Fed. Reg.
11046,” being 22 C.F.R. Sec. 53.1 et seg. in the form
pre-existing the Excluding Cuba Regulation) do not re--
quire a passport for-travel to Cuba and do not purport
to impose any area travel prohibition as to Cuba or any
other country or area.
It is only the Excluding Cuba Regulation, and Pub-
lic Notice 179 and Press Release No. 24 issued simul-
taneously with it, which collectively purport to at once
both require passports for travel to Cuba and simul-
taneously to provide passports shall be invalid for such >
travel unless specially validated ‘therefor in the discre-
tion of the Secretary of State. But that Regulation,
and/its accompanying Public Notice and Press’ Release,
were expressly issued under the authority only of the
civil Act of July 3, 1926, not under Section 1185.
Thus the promulgative clause of the Excluding Cuba
Regulation’is clear and specific. The official text Pf the
_Regulation (Regulation No. 108.456) appears in Vol-
Both promulgated, as hereafter noted, expressly under the
sacl lacaeporated under Section 1186 cxpresaly 0, Prescot
and i i expressly identi
Proclamation No. 3004, 67 Stat. C31.
—48—
ume 26 of the Federal Register at pages 482-483. The
promulgating clause. (excerpted for emphasis) reads
specifically:
“Pursuant to the authority vested in me. . . un-
der the authority of .. . the act of . . . July 3,
1926, . . . I hereby amend paragraph (b) [of 22
C.F.R. 53.3] as follows. .. .’”*
The criminal-sanction authority of Section 1185 is
not invoked. The civil Act of July 3, 1926 merely grants
the Secretary civil discretion to “grant and issue” pass-
ports and does not purport to provide criminal punish-
ment for violation of any regulation issued under its
terms. —~
Thus the Excluding Cuba Regulation upon its face
and by tts very terms is promulgated not under the
criminal-penalty authority of Section 1185" but only
under the authority of the Act of July 3, 1926, a civil
act-providing no criminal sanctions for violation of reg-
ulations issued under its authority.
1°The promulgative clause also invokes the authority of the
Act of May 26, 1949, 63 Stat. 111, 5 U.S.C. Sec. 151c, the gen*
eral rule-making statute affecting the Secretary of State; that
for violations of ions issued under it, and being more gen-
i tno Act et tate 1926, adds nothing thereto for the
purposes here concerned.
iP ance ih maphogpeirs Le (in parenthesis) between paragraphs
of the Regulation ph yer in the Federal Register there is a
ee Section 1185 names har hee =p not a part of the pro-
clause or of the text of the R tion itself. This indi-
cation = awareness of Section 1185 while not including it in the
Regula-
she Code of Feral Regus ke e-
the legal authority of the R or sieads beet
—49—
Moreover that the Excluding Cuba Regulation was
promulgated only under the civil Act of July 3, 1926 is ~
confirmed and heightened by the circumstance that
Public Notice 179 (26 Fed. Reg. 492), issued simul-
taneously with the Regulation and for the very pur-
pose of communicating the same to the public, repeats
the promulgative language of the Regulation and again
invokes only the civil promulgative authority of the
Act of July 3, 1926, making no reference whatever to
Section 1185. or any other penal promulgative author-
ity, or to any possible penal sanctions. Public Notice
179 (excerpted for emphasis) merely recites:
“Therefore, pursuant to the authority of . . . the
Act ., . of July 3, 1926... all United States pass-
_ ports are hereby declared to be invalid for travel to
or in Cuba...” (26 Fed. Reg. 492.)
Additionally, that the Excluding Cuba Regulation was
issued only under the civil sanctions of the Act of July
3, 1926, and not under the criminal sanctions or au-
thority of Section 11485, is underlined and made even
more plain by a comparison of its promulgative clause
with the promulgative clauses of the original regula-
tions under Section 1185 (constituting 22 C.F.R. Secs.
53.1 et seq. in the form pre-existing the Excluding
Cuba Regulation). The original regulation issued un-
der the 1941 Act as Departmental Order No. 1003,
November 28,1941, 6 Fed. Reg. 6069, exempted citizens
from requirement of a passport as to travel to Canada,
Mexico and “the islands of the West Indies” and cer-
tain other islands, but required passports for all other
travel. This regulation was promulgated expressly “un-
der authority of the act of . .. May 22, 1918... as
amended by the act of . . . June 21, 1941.” (6 Fed. Reg.
| a
6069.) This regulation was amended August 29, 1945,
by Departmental Regulation 11, 10 Fed. Reg: 11046, to
extend the exemption of citizens from requirement of
a passport as to travel to “any. country or territory in
North, Central or South America, or in any island ad-
jacent thereto.” Again the amended regulation was
promulgated expressly “under authority ... of the act
of ... May 22, 1918... as amended by, the act of
4 Teane hy 1941. ” (10 Fed. Reg. 11046.) = 3
Moreover, when the above described original regula-
tions, issued thus expressly under the 1918 and 1941
Acts, were adopted under Section 1185 after its en-
actment in 1952 by the President on January 17, 1953,
in Proclamation No. 3004, 67 Stat. C31, the President
in declaring the said prior regulation should be adopted
as regulations under Section 1185 expressly recited that
he was “acting under . . . the authority vested in me by
section 215 of the Immigration and Nationality Act [1.e.,
Section 1185].” (67 Stat. C31, C32.)
Thus the contrast is complete. The original regula-
tions, on-each occasion of enactment, were carefully
promulgated under the criminal-sanction authority of
the 1918 and 1941 Acts predecessor to Section 1185, and
on the enactment of Section 1185 the said regulations
were specifically adopted as regulations under Section
1185 by a presidential proclamation carefully reciting
the criminal authority of Section 1185. The Excluding
Cuba Regulation was not similarly issued but was is-
sued and promulgated expressly only under the civil sec-
tions and authority of the Act of July 3, 1926.
In cofisequence a violation of the Excluding Cuba
pores can be no crime. Section 1185(c) makes
iminal only a violation of its own terms or of “any
—51—
. .. regulation issued thereunder.” The Excluding Cuba
Regulation by its terms was not “issued thereunder”
- but only “under the authority of ... . the act of ...
July 3, 1926.” Hence there is no conjunction of statute
and regulation to create any criminal command, or to
express any declaration or fair warning thereof.
It is basic in Federal criminal law that criminal com-
mands must be strictly construed and must be con-
fined to only that which is clearly expressed. (United
States v. Weitzel, 246 U.S. 533, 543; McBoyle v.
United States, 283 U.S. 25, 27; United States v. Res-
nick, 299 U.S. 207, 210; Todd v. United States, 158
U.S. 278, 282; United States v. Harris, 177 U.S. 305,
309.) And this rule applies as well to criminal regula-
tions as to criminal statutes proper. (United States v.
Mersky, 361 U.S. 431, 440; Kraus & Bros. v. United
States, 327 U.S. 614, 622.) This Court has said in
Umited States v. Mersky (supra, p. 440), “In the con-
text of criminal prosecution, we must apply the rule of
strict construction when interpreting [a criminal] regu-
lation and statute. United States v. Halseth, 342 U.S.
277, 280 (1952); United States v. Wiltberger, 5
Wheat, 76, 95-96 (1820).”
A regulation has no force or operation as “law” ex-
cept as it may be granted such force by an authorizing
statute. (Williamson v. United States, 207 U.S. 425,
453 et seq.; United States v. Standard Brewery, 251-
U.S. 210, 220; United States v. United Verde Copper
Co., 196 U.S. 207, 215-216.) And, “Much more does
this principle apply to a case where it is sought .. . to
prescribe a criminal offense by the regulation of a de-
partment. . . . It is necessary that a sufficient statutory
authority should exist for declaring any act or omission
a we
a criminal offense . . .” (United States v. Eaton, 144
U.S. 677, 687-688.) There are, in Federal criminal law,
“no common law. offenses” (United States v. Eaton,
supra, at p. 687), and no “constructive offenses.”
(Todd v. United States, supra, 158 U.S. 278, 282;
United States v. Resnick, supra, 299 U.S. 207, 210.)
Criminality can exist “only for . . . an act defined by
statute, or by regulation having legislative authority,
and then only if punishment is authorized by Congress”
(Viereck v. United States, 318 U.S. 236, 241), and
“[w]here the charge [as to a regulation] is of crime,
it must have clear legislative basis.” (United States v.
George, 228 U.S. 14, 22.) 7
The Excluding Cuba Regulation at bar does not evi-
dence, in fact it negates, any “clear legislative basis”
for a claim of “crime”’. It recites expressly civil promul-
gation only. Yet, in this Court’s words, when a regula-
tion is contended by Government to express or define a
crime, “Congress has warned the public to look to that
source alone [i.e., to the regulation] to discover what
conduct . . . [will] create criminal liability.” (Kraus
& Bros. v. United States, supra, 327 U.S. 614, 622.)
The fact that a regulation and a statute have been
united to create a criminal offense may not be ;‘left to
implication” (United States v. Mersky, supra, 361 U.S.
431, 441) or to “conjecture”. (Kraus & Bros. v. United
’ States, supra, 327 U.S. 614, 621.) :
sSiten Raat sthimabvid 'te:2: qatetionof etithohtning power
and of fair warning. The authority of administrative
officers'to enact regulations with the force of criminal
sarictions must be grounded in an authorizing statute;
it isan awesome power, involving “grave responsibility”
(Kraus & Bros. v. United States, supra, 327 U.S. 614,
— 53—
621), and is strictly circumscribed. Accordingly, even 'to.
amend originally criminal regulations so that the amend-
ment or change will also bear criminal force, the amend-
ment must itself be duly issued under the authorization
and authority of a statute providing criminal penalty
for violation of regulations issued under it. The Act of
July 3, 1926, under the authority of which alone the Ex-
cluding Cuba Regulation was expressly issued, possesses
and transmits no such authorizing power. Hence viola-
tion of that regulation can be no crime.
Moreover, by reciting civil authority only i in its ex-
press declaration of its promulgative base, the Exclud-
ing Cuba Regulation denies fair warning and, indeed, is
affirmatively misleading to the public to whom it was
addressed as to any claim now by the Government of
criminal promulgative authority under Section 1185. A
criminal statute warns by its terms of criminal penalty;
the Excluding Cuba Regulation does not warn but af-
firmatively misleads. At bar a citizen could surely read
the promulgative clauses of the Excluding Cuba Regula-
tion and of Public Notice 179, issued to publish and ¢om-
municate’the Regulation, and reasonably infer from the
express invoking of the authority of the Act of July
3, 1926 and the absence of any reference to any author-
ity deriving from Section 1185, that the Regulation was.
not issued ‘under sanction of Section 1185 arid’ hetice’
that violation would not and could not be chargeable ‘as’
a crime under said Section. To retroactively announce
otherwise, and with criminal penalty, denies all. prin-.
ciples of fair warning and notice. Applicable here, there- _
fore, are all of the authorities discussed under Point II
above prohibiting ambiguity, contradiction and mislead-
ing terms in the communication of a criminal command,
=
‘Both for actual failure, then, of promulgation under
the criminal-sanctions authority of Section 1185, and
failure to make such authority and promulgation
bly appear, the Excluding Cuba ee at
bar cannot be enforced as a crime.
IV.
Construed to Authorize the “Excluding Cuba” Regu-
lation at Bar, Section. 1185. Unconstitutionally
Delegates Legislative Power Without Adequate
or Any Standards.
If Section 1185 be construed to grant authority to
impose under its criminal-exit sanctions area travel pro-
hibitions such as the Excluding Cuba Regulation at bar
it then offends the Constitutional fundamental prohibit-
ing delegation of legislative power without reasonable
and sufficient standards.
Article I, Section 1 of the \Constitution vests in Con-
gress “All legislative powers herein granted” and under
this exclusive grant it “is a principle universally recog-
nized as vital to the integrity and maintenance of [our]
system of government” (Field v. Clark, 143 U.S. 649,.
692) that Congress may not “abdicate, or . . . transf
to others, the essential legislative functions with whi
U. , 421; Schechter Corp. v. United States, 295
U. S, 495, 529.)
“Zemel v. Rusk, supra, 381 U.S. 1, upheld area sravel
restrictions against the charge of invalid delegation of
legislative power only so far as the civil side of .the law
affecting passports is concerned, judging such restric-
tions only as diplomatic, safe-passage measures author-
ized under the Act of July 3, 1926, 22 U.S.C. Sec.
it is vested.” (Panama Refining Co. v. me 28
¢
a
21 la, a civil-authorization statute without criminal sanc-
tions. At bar if area restrictions are to be sustained ‘as
authorized by Section 1185, with criminal enforcement
sanctions, the authority delegated must be judged as a
matter of delegated criminal powers. As this Court has
noted, the two landmark delegation decisions,. Panama
Refining Co. v. Ryan, supra, and Schechter C orp. v.
United States, supra, were “both . . . cases deal [ing]
with delegation of . . . powers to make federal crimes
of acts that never ‘de been such before”, and “a dis-
cretion to make regulations to guide [civil] action” may
well be “constitutionally permissible” where in the same
premises “it might not be allowable to authorize creation
of new crimes in unchartered fields.” (Fahey v, Mallo-
nee, 332 U.S. 245, 249-250.) The point is “the power
of punishment is vested [exclusively] in the legislative
. department” of Government. “It is the legislature
. [alone] which is to define a crime, and ordain its
punishment.” This is the “found[ation]” of the rule of
strict construction of all criminal laws. (United States v.
Wiltberger, 18 U.S. (5 Wheat.) 76, 93. ) Accordingly,
Zemel does not control here. :
Moreover, Zemel upheld the area travel restriction
on Cuban travel under the civil Act of July 3, 1926
upon the sole basis of a premise not operative. here.
The foundational premise of Zemel was that while. the
Act of July 3, 1926 expressed. no delegation standard
within its terms, there existed a ‘ consistent” history, of.
prior administrative practice sustaining civil. area restric-
tions under. prior statutes of which the 1926 Act was a
reenactment, and hence Congress for civil _.urposes.
might be deemed to have. adopted such prior practice.
as .a sufficient standard for. the discretion delegated
as ae
under the 1926 Act. The Court ruled expressly that “the
1926 Act must take its content from history: it author-
izes only those passport refusals and restrictions ‘which
it could fairly be argued were adopted by Congress in
light of prior administrative practice.’ . . . So limited,
the Act does not constitute an invalid delegation.” (381 -
U.S. at pp. 17-18.) -
Even could such an informal premise of adoption of
prior administrative practice operate to afford suf-
ficient legislative standards for. a criminal statute, the
premise in any event has no application in fact to the
delegation of administrative ._powers under Section
1185 at bar. As heretofore seen the administrative prac-
tice as to the issuance of area restrictions. under the
operative periods of the 1918 and 1941 criminal Acts of
which Section 1185 is a reenactment so far from show-
ing a “consistent”, or any, practice of issuance of area
restrictions thereunder, demonstrates affirmatively a
clear administrative practice to the contrary. As hereto-
fore seen, all area restrictions issued during the period
of the criminal 1918 and 1941 Acts were unvaryingly
formulated and cast as civil, safe passage measures only,
without reference or conceived relevance to the criminal
sanctions of the 1918 and 1941 Acts, and were cast in
the Department’s words to “in no way forbi[d]” af-
fected travel.
Thus the prior ‘administrative practice preceding: the
reenactment by Section 1185 of its predecessor statutes,
the 1918 and 1941 criminal Acts, proves not the Prior
reasonable exertion of criminal area-restriction powers
but a denial and disclaimer thereof. Such a negating
record clearly’ can’-afford no administrative base for
supplying affirmative discretionary standards capable
¥*
—57—
of adoption by Congress in the enactment of Section
1185.
‘As this Court emphasized in Kent v. Dulles, supra,
357 U.S. 116, 129, “control over exit” requires an exer- _
cise of “the law-making functions of the Congress” and
affects “activities or enjoyment, natural and ofterm nec-
essary to the well-being of an American citizen”, and
in consequence this rt “will construe narrowly all
delegated powers” affecting exit. Section 1185 affects
the right of exit directl , as the Act of July 3, 1926 in-
volved in Zeme, t, and Section 1185 operates by
cryninal command. Hence the scrutiny of the standards
for delegated legislative powers under Section 1185 must
be judged with “the tenderness of the law for the rights
of individuals” required as to either the exercise or del-
egation of criminal powers. (United States v. Wiit-
berger, supra, 18 U.S. 76, 93; Fahey v. Mallonee, supra,
332 U.S. 245, 249-250.)
The fundamental requirement of the Constitution as
to delegation of legislative powers, and particularly
criminal legislative powers, is that Congress “itself”
must erect “the standards of legal obligation”. (Schech-
ter Corp. v. United States, jupras295 U.S. 495, 530.)
Congress must provide “an intelligible principle” to
guide administrative regulations (Hampton & Co. v.
United States, 276 U.S. 394, 409; Panama Refining Co.
v. Ryan, supra, 293 U.S. 388, 430), and must “legislate
+. as far as. [is] reasonably Gere atyicy hs v.
Stnenehiee 192 U.S. 470; 496.) i
It cannot be suggested that Heke
ments have been satisfied at bar. Section 1.
no standard and no “‘ntelligible principle”: ‘to guide ad-
ministrative regulations issuable under its terms. Tt sim-
&
sd
—§8~
ply authorizes “such limitations and exceptions” to its
terms “as the President may authorize and prescribe”,
and thus leaves the executive branch without standards
whatever: No. standards cannot by definition be suffi-
cient or adequate standards. And it cannot be said Con-
gress has legislated'“‘as far as [is] reasonably practica-
ble’ for if area restrictions were conceived desired at
least a basic declaration affirming this and fixing mini-
mum policy guides therefor could readily have been ex-
pressed.
V.
Construed to Authorize the “Excluding Cuba” Regu-
lation at Bar, Section 1185 Deprives Defendant
of Personal Liberty and of Freedom of Speech,
. Thought 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 in Kent v.
Dulles, “basic in our scheme of values”; it is “a part of
our heritage.” (357 U.S. at p. 126.) It is a right which
“was emerging at least as early as the Magna Carta”
(#d., at p. 125; Article 42, Magna Carta) and it was
recognized by Blackstone. (1 Blackstone Commentaries,
134-135.) It is “deeply engrained in oyr history” and
“may be.necessary for a livelihood . . . [or], as close to
the heart. of the individual as the prenin of what he eats;
or wears, or reads.” (357 U.S: at p. 126.)
Liberty of travel, moreover, is a freedom “closely re-
lated to rights of free speech and association.” (A pthe-
ker-v.. Secretary of State, 378 U.S..500, 517.) The Uni-
_ versal Declaration of Human Rights relates it to the
need of the people “to seek; receive and impart informa-.
tion and ideas ..... regardless of frontiers.” (Articles
onlin
19 and 13(2).) Liberty of speech protects “freedom of
inquiry” and “‘ineludes . . . the right to receive” informa-
tion and ideas as well as to express such (Griswold v.
Connecticut, 381 U.S. 479, 482; Lamont v. Postmaster
General, 381 U.S. 301, 305), and in Chafee’s words, ap-
proved in Kent (357 U.S. at pp. 126-127), “travel
abroad enables American citizens . . . to be well-in-
formed on public issues” and thereby “contributes to
sounder [democratic] decisions.”
As Chafee puts it further, a
“An American: who has crossed the ocean is not
obliged to form his opinions about our foreign pol-
icy merely from what he is told by officials of our
Government or by a few correspondents of Ameri-
can newspapers. Moreover, his views on domestic
questions are enriched by seeing how foreigners are
trying to solve similar problems. In many different
ways direct contact with other countries contrib-
utes to sounder decisions at home.”
Chafee, Three Human Rights in the Constitu-
tion of 1787 (1956), pages 195-196.
Defendant’s conduct at bar in connection with her
travels to Cuba parallels precisely the democratic thesis
. expressed thus by Chafee. Not wishing to be( “obliged
to form [her] opinions about our foreign policy” as tn
Cuba solely by what she might be ,“told by officials of
our government or by a few correspondents of Ameri-
can newspapers”, she trdvelled-there to see the land for
herself. Moreover, as Chafee predicted, sa found: her
“views on domestic questions” too were “enriched by
seeing how [others]. are trying to solve similar. prob-
lems.” In the words. of the Stipulation of Facts at bar,
—H0—
defendant travelled about Cuba observing “the living
and, working conditions of the people and the effectua-
tion and implementation of various government pro-
grams relating to housing, education, agriculture, indus-
trialization and public health’, and took -pictures of
what she saw. [R. 52.] When she returned she “ap-
peared before various groups and gatherings of her fel-
low citizens” and told them of her experiences and ob-
servations. [/d.] Thus did she as one citizen attempt to
“contribute to sounder decisions at home.” She acted
merely as one citizen-participant in the nation’s “free-
dom of discussion”, which, in this Court’s words, “‘if it
would fulfill its historic function . . . must embrace all
issues about which information is needed or appropri-
ate to enable the.members of our society to cope with
the exigencies of their. period.” (Thornhill v. Alabama,
310 U.S, 88, 102; Wood v. Georgia, 370 U.S. 375, 388.)
. As respects the subject of Cuba, the informed will
of the American people bears upon questions of life and
death, not only for themselves but for the planet as a
whole. In such a context to say that the American people
may know about Cuba only what appears in official
declarations of policy is a travesty on the democratic
process. Indeed to say that they may know only what is
* reported by' those newsmen and businessmen whose trav-
el' to Cuba the proponents of official policy may approve
- is to offer sources ‘of information only slightly less re-
“It is ‘no’answer to the needs of the American people
for information on matters so grave to say that they
pertain to foreign relations and that policy in these mat-
ters may be determined by appointed officials. For this
is to give officialdom the means of perpetuating itself
—6|— ‘
and insulating its policies from public debate. At all
events the people through their representatives are en-
titled to vote on questions of war and peace and cer-
tainly to petition their government concerning matters
of foreign relations, The criminal proscription on trav-
el invoked at bar substantially burdens and clogs the
processes whereby our citizens can determine their own
positions and exert informed pressure upon their repre-
sentatives at the seat of government. So doing such pro-
hibition violates the root premises of the First Amend-
ment and of self government.
It is true this Court in Zemel v. Rusk, supra, 381
U.S. 1, ruled the Department of State has Constitu-
tional power to refuse to issue a passport valid for trav-
el to Cuba under the civil safe-passage side of the pass-
port powers. But involved at bar is a criminal prohibi-
tion, not a civil withdrawal of a protective privilege.
It is one thing to say that Government may deter-
mine to withdraw from specificied parts of the world
for reasons of foreign and diplomatic policy the priv-
ilege of the diplomatic safe-passage protection af-
forded by passports, and may require citizens if they
travel to such areas to proceed on their individual re-
sponsibility only. It is another thing entirely to say that
Government may outright prohibit amy free travel to ’
administratively-listed areas of the globe on pain of
criminal punishment even as to the citizens willing
to travel without. diplomatic passport protection. It is
the latter which is involved here. That issue was eX-
pressly resefved in Zemel v. Rusk, and this Court should "
now affirm that under the First and Fifth Amendments
the Government may not prohibit and punish stich free,
innocent travel. That power, ee
/
a
peace as at bar, is inconsistent with the protected liberty
of citizens in a self-governing nation. °
‘Moreover, there is a feature of censorial, discretionary
power in the restriction upon travel to Cuba at bar which
is particularly offensive to personal liberty and to free-
dom of speech, thought and association. The Excluding
Cuba Regulation, read with Public Notice 179 and
Press Release No,/24 issued simultaneously with it,
does not simply and totally prohibit all travel to Cuba.
Instead it prohibits such travel subject to censorial dis-
cretion. Public Notice 179 (Appendix D; 26 Fed. Reg.
492) provides passports shall be “invalid for travel to
or in Cuba”. “unless specially endorsed for such travel
under the authority of the Secretary of State”, and
Press Release No. 24 (Appendix E; 44 Dept. St. Bull.
178) provides that “exceptions” allowing travel to Cuba
will be permitted only “to persons whose travel may be
regarded as being in the best interests of the United
States...” (Emphasis added.)
Thus the regulatory ban considered in entirety vests
the Secretary with “completely uncontrolled discretion”
(Cox v. Louisiana, 379 U.S. 536, 557) to allow or
disallow travel to Cuba at his arbitrary license. He has
power, in this area of sensitive First-Amendment-con-
nected liberty, “to act as a censor”, and, as well, to
jeopardize “the right of [applicants for such travel]
not to be denied equal protection of the laws.” (Id.,
at p. 557.) “It is clearly unconstitutional to enable a
public official . . . to engage in invidious discrimina-
tion among persons or groups . . . by use of a statute
providing a system of broad discretionary licensing
power” over First Amendment area rights. (Jd. at p.
557; Thornhill v. Alabama, supra, 310 U.S: 88, 97;
aici,
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.)
As stated by Commager,
“If the right to travel abroad is to depend on the
subjective judgment of some subordinate in the
State Department as to whose travel is ‘in the best
interests of the United States’, there is an end—in
theory, at least—to freedom of travel. Who deter-
mines what are the interests of the United States?
Who determines whether a particular passport ap-
plicant meets these murky criteria? If everyone who
expects to travel must so comport himself as to sat- ~
isfy the notions of Federal bureaucracy about polit-
ical ideas, associations,.and activities, control over
travel may well become a powerful instrument
for Federal control of thought.”
Henry Steele Commager, as quoted in Hearings
Before The Senate Committee on Foreign Re-
lations On Passport Legislation, July 16,
, 1958, 85th Cong., 2d Sess., p. 184.
The power to censor travel, then, as one of the chan-
nels of information affecting public opinion, is tanta-
mount to improper administrative influence over the
free molding of public sentiment. In Chafee’s words,
such arbitrary, licensing power over the right’ of trav-
el is to be condemned as “one of the worst evils of
suppression of freedom of the press” because “[i]t en-
ables. government officials to pursue their own policies.
by keeping the public from learning facts and ideas
64 i
which’ may throw doubt on the soundness of those poli-
cies,” (Chafee, supra, at p. 196.)
A statute creating arbitrary, censorial licensing power
over First-Amendment-related liberties, as does the reg-
ulatory ban on travel to Cuba at bar, 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. 51, 56; Staub v. City of Baxley, 355 U.S.
313, 319.) “The power of the licensor . . . is perni- _
cious not merely by reasgn of the censure of par- ~
ticular comments but by reason of the threat [of such
censure].” In consequence, “[o]ne who might have
had a license for the asking may . . . call into ques-
tion the whole scheme of licensing when he is prose-
cuted for failure to procure it.” (Thornhill v. Alabama,
supra, 310 U.S. 88, 97.) e
No Sufficient Presidential Proclamations of Emer-
gency Exist to Support the “Excluding Cuba”
Regulation Under Section 1185 at Bar.
‘Section 1185 by its terms applies during peace time
only (1) “during the existence of any national emer-
gency proclaimed by the President”, and then only if
(2) the President finds and further proclaims “that
the interests of the United States require that restric-
tions and prohibitions in addition to those provided
otherwise than by this section be raners upon” entries
and departures. .
It is the contention of the Government that these
proclamation requirements have been satisfied by Pres+
idential Proclamation No. 3004, January 17, 1953, 67
Stat. C31, attached hereto as Appendix F, and by Pres.
ii
idential Proclamation No. 2914, December 16, 1950, |
64 Stat. A454, attached hereto as Appendix G, which
is referred to and adopted in Proclamation No. 3004.
' Defendant submits the statutory requirements have
not been satisfied.
(1) Firstly, Proclamation No. 3004 makes no proc-
lamation of apprehended need for geographical area
travel restrictions. Section 1185, in sedition to the proc-
lamation of a general “emergency”, requires as a con-
dition for any entry or departure restrictions sander
its criminal sanction that the President find and pro-
claim “that the interests of the United | States require”
that “restrictions and prohibitions” upon entries and
departures “in addition to those Provided otherwise
than by this section” be imposed. Since civil restric-
tions upon. area-restricted travel (withdrawal of the
safe-passage “protections of a passport) clearly exist
independent of Section 1185, the requirement of the
statute is that before ‘its criminal saactions may be
added the President must first find and proclaim a
necessity therefor. What is required is a specific find-
ing and proclamation of necessity for area or geograph-
ical restrictions. Proclamation No. 3004 merely’ finds
generally, and in blanket terms, that United States in-
terests require exit and entry restrictions additional to
those otherwise existing, but there’is no finding of
necessity for geographical restrictions affecting a ‘stav-
eller’s destination.
Section 1185 is a criminal statute and must be nar-
rowly construed, and its precondition that departure re-
strictions must be found to be “required” miust be
liberally interpreted in favor of the accused. This means,
~
4
F ad:
—6—
‘ it is believed, that as to all restrictions and prohibitions
imposed under the statute the President must specif-
ically find that the same, either individually or as a
category, are “required” by “the interests of the United
States.” Applied to the imposing of area destination
restrictions—a cary of restrictions unique unto it-
self and one requiring a different basis of justifica-
' tion than restrictions applicable to individuals—the stat-
ure requires a specific finding of need for such regula-
tions, either individually or at least as a class. Proclama-
tion No. 3004 expresseS no sug finding under any
view, and in consequence, for failure of one of its
preconditions, Section 1185 cannot be applied at bar
to enforce an area travel restriction such as the Ex-
Aluding Cuba Regulation. .
(2) In any event, no. valid, enduring national emer-
gency is shown at bar under Proclamations Nos. 3004
and 2914 sufficient to satisfy the requirements of Sec-
tion 1185. Proclamation No. 3004, issued January 17,
1953, merely proclaims “the national emergency the
existence of which was proclaimed . . . by Proclama-
tion 2914 still exists.” Proclamation No. 2914, issued
December 16, 1950, in turn proclaimed “a national emer-
gency” bottomed on the Korean War then obtaining;
its base premise is now removed and the condition of
emergency it declared no longer exists.
The opening and controlling recital of Proclamation
. No. 2914 reads:
“WHEREAS recent events in Korea and else-
where. constitute a grave threat to the pelice of the
- world and imperil the efforts of this country and
those of the United Nations to prevent aggression
S and armed conflict; . . .” :
7
| —
While there is general. reference thereafter in the
Proclamation to “world conquest. by Communist impé-
rialism” and to the importance of protecting the basic
liberties of American life, it is plain that Proelama-
tion No. 2914, issued December 16, 1950, is bottomed
upon the Korean War. Proclamation No. 3004, issued
January 17, 1953, merely reiterates by recital the “na-
tional emergency . . . proclaimed . . . by Proclamation
2914.”
Whatever may have been the situation in 1950 and
1953, clearly that situation does not exist today. The
Korean War, which was the explicit occasion and basis
for “the national emergency” proclaimed in Procla-
», Mations Nos. 2914 and 3004, ended July 27, 1953. (13
Encyc. Brit. 467, 474.) There is, therefore, no rational
basis for the interference with the basic right of travel
today upon the basis an emergency no longer in ex-
2 send
This Court is not controlled by an outdated execu-
tive proclamation of an emergency which by passage of
time has ceased to exist." The Court has independ-
ent . right, and even duty, to inquire whether there is.
in fact today such a national emergency as was pro-
claimed in 1950 and 1953 by Proclamations Nos. 2914
and 3004 sufficient to justify the ‘criminal ‘restriction
upon free travel in contest at bar. As stated by Mr.
%8As stated, Proclamations Nos. 2914 and 3004 arose out of
and spoke to the Korean situation which our government. charac-
terized as aggressive warfare. Eight years , in
1961, the C ituati no resemblance to that in the
‘cil
Justice Holmes in Chastleton Corp. v. Sinclair, 264
U.S. 543, 547-548 (quoted and approved su ently
in Baker v. Carr, 369 U.S. 186, 214):
. [A] court is not at liberty to shut its eyes
to an obvious mistake, when the validity of the
law depends upon the truth of what is declared.
. And still more obviously, so far as this
declaration looks to the future, it can be no more
than prophecy, and is liable to be controlled by
events. A law depending upon the existence of an
. emergency or other certain state of facts to uphold
it may cease to operate if the emergency ceases
or the facts change, even though valid when past.
. In our opinion it is open [to a court] to in-
quire whether the exigency still existed upon which
the continued operation of the law depended.”
(264 U.S. at pp. 547-548.)
Lacking at bar are the care and frequency with
which: the legislature in East. New York Savings Bank
v. Hahn, 326 U.S. 230, 234-235, reviewed the law
there concerned from time to time, arid adjusted its
terms, based in each’ case on a full investigation of
the facts—displaying thereby “the “empiric process of
legislation’ at its fairest.” Governmental powers ground-
ed upon war emergency may not be “indefinitely pro-
longed merely -by keeping alive a state of war that
ha[s] in fact ended.” (Woods v. Miller, 333 US. 138,
147, Mr. Justice Jackson concurring. )
The lapse of time since the issuance of the proclama-
tions here, together with the judicially noticeable mat-
ters set out in this branch of the argument, render the
proclamations presumptively inoperative. Surely ‘the
changing kaleidoscopes of international relations and
]
—§9—
political maneuvers are not the sort of fact’ situations
entitled to any presumption of continuance. Indeed,
just the opposite of such a presumption would seem re-
quired. (See, e.g. Maggio v. Zeitz, 333 U.S. 56; Colt
v. United States (C.A. 5, 1946), 158 F. 2d 641; United
States v. Patterson (CA. 2, 1955), 219 F. 2d 659.))
Vil.
Defendant 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 defendant 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 permission
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: pass-
port from the United States “for the Republic of Cuba”
“a place outside the United States for which a valid
passport is required” [Indictment; R. ‘1-2,. emphasis
added] ‘within the meaning of Section 1185. |
The facts dealing “with defendant’s departures on
each of the dates charged in the indictment, January
22 and August 18, 1962, are set forth in paragraphs
4 and 7 of the Stipulation of Facts {R. 50-51]. On.
each occasion she crossed the United States border
into Mexico, without need for any travelling
on the first occasion by airplane. on: the second;
by automobile. In each instance “at ry time. she_.de-
parted?’ she .‘‘did. not have Cuba’s’ permission to enter.
_
Se
_ ler. For-there to be a departure from the United Sta
sien
re and. she “intended to seek permission . . . to
visit Cuba” from representatives of Cuba “in Mexico”.
- Thus when she departed the United States she had no
power fo; go to, or leave “for”, Cuba. She intended
to seek permission to enter” Cuba only after arrival in~ -
Mexico, end she in fact did.so apply and obtained .
Guba’s permission to visit’ Cuba on the first occasion
four days after her departure from the United States,
and on the second occasion, twelve days after she de-
parted the Unitéd States.
Section 1185 covers only dpearture; it operates only
on the ‘facts existing at the moment of such depar-
ture. Properly construed and Constitutionally limited,
it cannot -apply to the facts at bar. To say that de-
parture can be rendered penal by a subsequent seeking
and obtaining of permission to enter Cuba is to defy
_ reason and to make the statute arbitrary and void in
“its application under due process fundamentals.
The facts are plain that on each occasion when the
defendant left the United States, Cuba was not a country
which had agreed to receive her as a visitor or travel-
“for” a country, it must be a leaving for a country
which is ready to receive the ‘individual concerned.
(Heikkinen v. United States, 355 U.S. 273, , 276.) One
cannot depart the country for passport purposes at large
‘ so to speak ‘or abstractly; one cannot obtain a passport
to travel nowhere. One could sail out on the high seas
far beyond the territorial limits and need no passport.
He needs a, passport when he departs for another coun-
try. He cannot depart to enter such a country unless
_that country is ready-to receive him.
Thus -at the time of her departure the defendant
had neither the apparent nor the actual ability to go to
fake, a
_ Cuba, Whether sucheability would ever come into be-
ing was unknown and ‘completely . beyond her ‘power. It
was not, therefore, within her power’ to commit the of-
fense charged. See United States: v. Moses (CA: 2,
1953), 205 F: 2d 358 and Liverman v. United States
(C.A. 4, 1958), 260 F. 2d 284. Both of these cases _
dealt with the offense of possessing an unregistered- 2
still. In ach case the still had*been installed” but. was ~
not operable because of the need for repairs and adjust-
ments. Since offense consisted of Possessing an
operable still ula of "conviction were’ reversed.
In the case at bar defendant’s conduct fell far short
of that in the cited cases. Whatever her. state of mind -
when she left the United States, the defendant was.
unable «factually and legally to go to’Cuba until she
obtained that country’s consent for her entry. She did
- not have that consent’ when she left. the United States
borders, and she did not even apply for it until after
~ she got to Mexico City. There is nothihg to show that
she had even an assurance that such consent would be
obtained when she applied. The consummation of her
preparations rested upon facts and volition utterly in
dependent of her conduct or will. —
Thus the facts here fall short even of sitet: Cf.
Lémke v. United States (C.A. 9, 1954), 211 F. 2a 73,
cert. den. 347 U.S. 1013; United States v. Coplon
(C.A. 2, 1950), 185 F. 2d 629. In those cases,the de-
fendant had engaged in conduct falling just short of
the completion of the crittie when his conduct was in-
terrupted by police officers who sought’ to frustrate
the defendant’s criminal purpose. In each case, , prepara-
tions were extensive and the defendant’s criminal pur-.
pose could have been accomplished by his own. voli-
tion. and conduct but for the eer 6f. others. -
_* ‘ }
> ; = .
“_ os
7 fe %
;
: ilies
Such is not the situation here where defendant’s prep- ©
arations coufd not bring her:even close to consummat-
ing entry into Cuba, for that turned upon action ‘of the
Cuban Government, utterly independent of her power
and will. ¢
» The inapplicability of the statute at bar to a’ depar-
ture such as the defendant’s can be well illustrated by
asking that would happen under the statute as the Gov-
ernment construes it if the defendant on arrival in Mex-
ico and an requesting Cuban entry permission had been
refused such permission, or, in “Mexico, had requested
and obtained permission to enter Cuba but because of
other circumstances did not in fact travel there. “a
the Government’s thesis the offense would nonethe
be complete because complete at the moment of d
ing, regardless of whether travel to Cuba should -«ac-
tually eventuate or not. =. : s
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 fiot exist ability to enter (by
existing permission) the country travel to which re-
quires a passport -not possessed. ”
Conclusion. | |
. Wherefore, upon all of these weston and consider-
ations set forth above, the judgment of conviction p De
low should be reversed.
Respectfully submitted,
© Joun T. McTERNAN,
A. L. Wir1n,
Attorneys for Petitioner.
‘
Wittram B. Murrisx,
- Of Counsel.
\
v
+ © | APPENDIX A.
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. ‘eon seer: in material part as
* follows:
Travel Control of Citizens and Aliens During War
or National seksi stays nd Prohibi-
tions oh Aliens.
(a) When the United States 3 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 the President shall find that the
interests of the United States require that restric-
tions and prohibitions in addition to those provided
otherwise than by this section be imposed upon the
departure of persons froth and their entry into the
United States, and shall make public p~oclamation
thereof, it shall, until otherwise ordered by the
President or the Congress, be unlawful—
* * *
Citi
(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, it 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
States to depart from or enter, or attempt to de-
part, from or enter, the United States uaiees he
bears a valid passport.
—A2— pees
Le. : ) _.. Penalties #
Pe (c) Any person who. shall wilfully violate any
| of the provisions of this section, or of any order
_ or proclamatiori of the President promulgated, or
_of.any permit, rule, or regulation issued thereun-
e ' der, shall, upon conviction, be fined not more than
$5,000, or, if a natural person, imprisoned for not
more than five years, or both; * * *.
< name ae
3 APPENDIX B.
The “Excluding Cuba” Regulation, January. 16,
1961, Dept. Reg. No. 108.456, 26 Fed: Reg. 482
(amending 22 C. F. R. Sec. 53.3 which follows immedi-
ate as Appendix C), reads in full as follows:
Dept. Reg. 108.456.
PART 53 — TRAVEL CONTROL OF CITI-
ZENS AND NATIONALS IN TIME OF WAR
OR NATIONAL EMERGENCY
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 ofthe 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 22
of the Code of Federal —. " read as
follows:
§53.3 Exceptions to Regulations in 53.2
* * * ;
(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
arriving 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 threreto: And provided also,
| a2
That this section shall not be applicable to any sea-
mgn except as provided in paragraph (c) of this
section ; or
eg 215, 66 Stat. 190; 8 U.S.C. 1185 and Executiye Order
dated January 17, 1953, 18 F.R. 489)
The regulation contained in this order shall be-
come effective upon publication in the FEDERAL
REGISTER. The provisions of section 4 of the
Administrative Procedure Act (60 Stat. 238; 5
USC. 1003) relative to notice of proposed rule
making and delayed effective date are inapplicable
to this order because the provisions thereof involve
foreign affairs functions of the United States.
Dated: January 16, 1961.
For the Secretary of State.
LOY W. HENDERSON >
Deputy Under Secretary for
Administration. +
(F.R. Doc. 61-506; Filed, Jan. 18, 1961; 8:54 a.m.)
_ APPENDIX Cc.
hie Yeti abil tng Pine 59°08 TAi‘2e of
the Code of Federal Regulations in their unamended
form as they. appeared prior to January 16, 1961 (i.e.
before promulgation of the “Excluding Cuba” Regula-
tion reproduced in Appendix B above), read in material
part as follows: rire
Part 53—Travel Control of Citizens 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 (anal Zone, and all territory and waters,
continental or insular, subject to the jurisdiction 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 Unitedr States as defined in §53.1, unless he
bears a valid passport which has been issued by
or under authority of the Secretary of State or
ee ee ee
scribed in §53.3.
§53.3 Exceptions to regulations 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:
x» *«* *
(b) When traveling between the United eis
and any country or territory in North, Central or
South America or in any island adjacent thereto:
Provided, That this exception shall not be appli-
e
a
cable to any such person when traveling to or ar-
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; * * *.
-
APPENDIX D..
Public Notice 179, January 16, 1961, 26 Fed. Reg.
492, reads in full as follows: —
DEPARTMENT OF STATE
[Public Notice 179]
Restrictions on Travel to or in Cuba .
In view of the conditions existing ‘tn Cuba and
in the absence of diplomatic relations between that
countryfand the United States of America I find
that the unrestricted travel by United States citi-
zens to or in Cuba weuld be contrary to the for-
eign policy of the United States and would be
otherwise inimical to the national interest.
Therefore 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. 21la), 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 Secretary of State or until this order is re-
voked.
Dated: January 16, 1961
\ For the Secretary of State.
LOY HENDERSON,
Deputy Under Secretary for
Administration
ee eee
i
APPENDIX E.
Press Release No. 24, January 16, 1961, 44 Dept. of
State Bull, 178,-reads in full as follows:
_ PRESS RELEASE No. 24
The Department of State announced today that ef
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 specifically
endorsed for such travel.
The Department contemplates that exceptions to
these regulations will be granted to persons whose ee
travel may be regarded as being in the best interests a
of.the United States, such as newsmen or busi-—
nessmen with previously established business in-
terests. Bi}
Permanent resident aliens cannot travel to Cuba
unless special permission is obtained for this pur- |
pose through the United States Immigration and ‘ 5)
Naturalization Service. iN
Federal regulations are being amended to put :
these requirements into effect. |
~~ These actions have been taken in conformity with ag
the Department’s normal practice of limiting travel
to thoge countries with which the United States , S,
* does not maintain diplomatic relations. :
j~
APPENDIX F.
Presidential Proclamation, No. 3004, January 17,
1953, 67 Stat. C31, reads in materia] part as follows:
A Proclamation
WHEREAS section 215 of the Immigration and
Nationality Act, enacted June 27, 1952 (Public Law
414, 82nd Congress; 66 Stat. 163, 190), authorizes
_ the President to impose restrictions and prohibitions
in addition 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; imposed certain restrictions and pro-
hibitions, in addition to those otherwise provided
by law, upon the departure of persons from and
their entry into the United States; and |
WHEREAS the exigencies of the international
situation and of the national defense still require
that certain restrictions and prohibitions, in. addi- ~
tion to those otherwise provided by law, be im-
posed upon the departure of persons from and their
entry into the United States:
-_
y
ek oe
NOW, ‘THEREFORE, I HARRY S. TRU-
“OMAN, President of the United States of America,
acting under and by virtue of the authorjty-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 hefeby prescribe
and make -the following rules, regulations, and
orders with respect thereto: °
1. The departure and entry of citizens 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 jurisdiction of the United States, shall be
subject to. the regulations prescribed by the Secre-
tary of State and published Yas 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 of this proclamation ; ;
and the Secretary of State is hereby authorized to
revoke, modify, or amend such regulations as he
may find the interests of the United States to re-
quire.
* * * *
5. I hereby direct all departments and agencies
of the Government to cooperative with the Secre-
tary of State in the execution of his authority
under this ‘proclamation and any subsequent proc-
lamation, rule, regulation, or order issued in pur-
a at
oe | ‘
¢
ii Ek dai bts i iil
7’
naw eatbhicl, Sein- iA sala east
i . —
= xX
, ‘suance hereof; 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 charged with the exe-
- cution of the’ laws thereof the utmost diligence in
preventing violations of section 215 of the Im-
migration and Nationality Act and this proclama-
tion, including’ the regulations of the Secretary of
State incorporated herein and made a part hereof,
and in bringing to 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.
}
APPENDIX G.
Presidential Proclamation No. 2914, December 16,
1950, 64 Stat. A454, reads in material part as follows:
'
A Proclamation:
WHEREAS, recent .events ia 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 if 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, freedom of reading and
listening to what they. choose, the right of free
\__ speech including the right to criticize their Gov-
ernment, 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;
and ~“
WHEREAS the incfeasing menace of the forces
of communist aggression requires that the national
defense of the United States be strengthened as
speedily as possible: | 3
<n
NOW THEREFORE, I HARRY S. TRU-
MAN, President of the United States of America,
do proclaim the existence of a national emergency
eee
* * *
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 Decemiber, 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
-
=
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.