Section 215 of the Immigration and Nationality Act provides that, while a Presidential proclamation of national emergency is in force,
* * * it shall, except as otherwise provided by the President, * * * be unlawful for any citizen of the United States to depart from or enter * * * the United States unless he bears a valid passport.[A15-273]
Because a proclamation of national emergency issued by President Truman during the Korean war had not been revoked by 1963, the Government has taken the position that the statute remains in force.[A15-274] Pursuant to section 215, the State Department has issued regulations setting forth the circumstances under which it will refuse a passport:
In order to promote and safeguard the interests of the United States, passport facilities, except for direct and immediate return to the United States, shall be refused to a person when it appears to the satisfaction of the Secretary of State that the person’s activity abroad would: (a) violate the laws of the United States; (b) be prejudicial to the orderly conduct of foreign relations; or (c) otherwise be prejudicial to the interests of the United States.[A15-275]
The State Department takes the position that its authority under this regulation is severely limited. In a report submitted to the Commission, the Department concluded that “there were no grounds consonant with the passport regulations to take adverse passport action against Oswald prior to November 22, 1963.”[A15-276] Although Oswald’s statement in 1959 that he would furnish the Russians with information he had obtained in the Marine Corps may have indicated that he would disclose classified information if he possessed any such information, there was no indication in 1963 that he had any valuable information.[A15-277] Moreover, Oswald’s 1959 statement had been brought to the attention of the Department of the Navy[A15-278] and the FBI[A15-279] and neither organization had initiated criminal proceedings. The Department therefore had no basis for concluding that Oswald’s 1959 statement was anything more than rash talk.[A15-280] And the State Department’s files contained no other information which might reasonably have led it to expect that Oswald would violate the laws of the United States when he went abroad.
The most likely ground for denying Oswald a passport in 1963, however, was provided by subsection (c) of the regulation quoted above, which requires the denial of a passport when the Secretary of State is satisfied that the applicant’s “activity abroad would * * * otherwise be prejudicial to the interests of the United States.” In 1957 the State Department described to the Senate Foreign Relations Committee one category of persons to whom it denied passports under this provision:
Persons whose previous conduct abroad has been such as to bring discredit on the United States and cause difficulty for other Americans (gave bad checks, left unpaid debts, had difficulties with police, etc.).[A15-281]
In light of the adverse publicity caused the United States by Oswald’s prior defection to the Soviet Union, he could have been considered a person “whose previous conduct abroad had been such as to bring discredit on the United States.” Indeed, the State Department itself had previously been of the opinion that Oswald’s continued presence in Russia was damaging to the prestige of the United States because of his unstable character and prior criticisms of the United States.[A15-282]
However, in 1958 the Supreme Court had decided two cases which restricted the Secretary of State’s authority to deny passports. In Kent v. Dulles[A15-283] and Dayton v. Dulles,[A15-284] the Supreme Court invalidated a State Department regulation permitting the denial of passports to Communists and to those “who are going abroad to engage in activities which will advance the Communist movement for the purpose, knowingly and willfully of advancing that movement,” on the ground that the regulation exceeded the authority Congress had granted the Secretary. The Kent opinion stressed the importance to be attached to an individual’s ability to travel beyond the borders of the United States:
The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment * * * Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.[A15-285]