(Testimony of Abram Chayes Resumed)
Mr. Chayes.
factual evidence to support a finding that his travel would fall within one of these three categories in 51.136, then the passport would be issued. We have to start from the proposition that the Supreme Court has said that the right to travel is a part of the liberty protected by the fifth amendment, and that the Secretary cannot withhold a passport arbitrarily. Now we have taken the position, I think properly so, that in order to justify withholding under one of these three subsections of 51.136, there has to be a real and concrete showing that the travel either would violate the laws of the United States, be prejudicial to the orderly conduct of foreign relations, or otherwise be prejudicial to the interests of the United States.
Add to that that you can't make that finding on the basis of, let's say, political activity abroad. Suppose we could show, for example, that Oswald was going to the Soviet Union to make a speech before the Supreme Soviet telling how terrible things were in the United States and how bad the U.S. policies toward Cuba were, for example.
Representative Ford.
Would that preclude him from getting a passport?
Mr. Chayes.
No. We have people abroad who are doing that all the time. We have got Malcolm X traveling across Africa making one speech after the other about how terrible our policies on the race question are. And it is perfectly clear to me on the basis of the cases--although we might get a little more information in the next couple of weeks, we have a case before the Chief Justice now--but it is clear to me on the basis of the cases so far that if what is involved is speech, no matter how hostile it is to our' policies or our objectives, you can't deny a passport for that.
Representative Ford.
What about Oswald's statements to either Mr. Snyder or Mr. McVickar that he as a former Marine was going to give information he had acquired as a former Marine to the Soviet authorities.
Mr. Chayes.
That is, of course, a more difficult one. Of course we know he didn't have very much information.
Representative Ford.
No, but he was a Marine and he had been trained as an electronics radar specialist. He said he was going to give this information.
Mr. Chayes.
But the second point is that on the whole these criteria look to the future. They look to the purpose of this travel. Now if he had committed an offense against the espionage laws or whatever it was abroad on his past performance----
Representative Ford.
This isn't a question of freedom of speech.
Mr. Chayes.
No; I understand.
Representative Ford.
This is a question of giving away Government secrets.
Mr. Chayes.
No, no; I don't equate the two at all. But that kind of thing I think would have been the subject of investigation under our new procedures, and might have turned up something. I think if you could have found, for example, that he did in the past give information of this kind, you might be in a different position.
Representative Ford.
Was any investigation of that aspect made at the time?
Mr. Chayes.
Yes.
Representative Ford.
When he came back and asked for the renewal of his passport?
Mr. Chayes.
No; but what happened was when he returned to the United States--first of all the FBI was kept constantly informed, and as you know kept looking into the Oswald situation periodically from the time he came back.
Mr. Coleman.
And those reports were in the passport file.
Mr. Chayes.
They were in the passport file, and immediately after he came back, he was interviewed very fully by the FBI, and I think as I recall the file I haven't reviewed it recently--I think he was questioned on this very point by the FBI, and he said he hadn't given any and they weren't very much interested in it. And the FBI apparently was satisfied with that. They made no further move against him on that basis.
So that we did have whatever information there was.
As I say, although this regulation looks to the purpose of the forthcoming travel and not to the past travel, nonetheless I think it is perfectly appropriate to make inferences on the basis of what he did before. We refused to issue a passport to Worthy when he would not give us assurances that he would observe
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