Representative Ford. That is correct, but it was not a clear-cut case when you look at the steps that he, Lee Harvey Oswald, tried to take.
Mr. Chayes. Well, I don't know——
Representative Ford. It was a determination, but it was not one that was absolutely all black or white.
Mr. Chayes. No, but once you make the decision on the basis of whatever is before you, he is either a citizen or he is not a citizen, and I think he is a citizen, or was a citizen.
Representative Ford. But the fact that the matter was administratively investigated ought to, I would think under your new regulations, when he applies to go back to the country where he originally sought citizenship, there ought to be some real investigation, and I am surprised that you say that under those regulations, under these facts, he probably would still be given a passport.
Mr. Chayes. I agree with the first part of your statement, that under the new regulations, as we have developed them in the light of hindsight, there would be a further investigation.
Representative Ford. But you also said——
Mr. Chayes. And I think there should.
Representative Ford. He would then be given his passport again despite the new regulation.
Mr. Chayes. But if the investigation turned up no more than what was in the file with respect to his purposes for travel abroad, if we didn't have some hard 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.