ON April 15, 1820, the Secretary of State, John Quincy Adams, issued a passport to one Luther Bradish certifying that he was about to visit foreign countries "with the view of gratifying a commendable curiosity." In 1817 there had issued the first of the passport forms to bear at the top the American arms but, we are told, the eagle was portrayed "with the head turned in the wrong direction." In that brave new world there was a relaxed yet vigorous self-assurance. Today the Passport Division does not find curiosity commendable and the eagle's scream must issue from the right side of his beak. But it is not enough to take counsel of nostalgia or even of the righteous indignation aroused by ludicrous expressions of bureaucratic zeal.

We must begin by identifying our passport problem. The term "passport" in its earliest usage was applied to a permission given, it might be, to an enemy alien or a departing foreign ambassador, to pass safely through the territory of the issuing Power. But in its later and now current usage the passport is a document issued by a country to its nationals, its chief function to identify the bearer when passing into and out of foreign countries, and to insure his safe conduct. By the late nineteenth century when freedom of movement reached its apogee, only a few countries--Persia, Rumania, Russia, Serbia were among them--required the wayfaring alien to present a passport. Nor would the traveller, at least in time of peace, have needed a passport to leave his own country. That had always been true for an American citizen, and remained true until 1941. It had been true for centuries for an Englishman and is still true. The First World War shattered this bonhommie. It revived a fairly general control of entry and exit; some of these restrictions were relaxed in the inter-war period but were again given new life by the period of Perpetual Alert in which we feel ourselves to be living. A survey made in 1952 by the Yale Law Journal showed that of 37 countries giving information, only ten allowed their nationals to depart without passport and only five permitted the entry of aliens without passport. Since 1929 we have warned our nationals that travel abroad without a passport would be difficult or impossible. And in 1941 the President, exercising statutory "emergency" powers, proclaimed the existence of a "national emergency" and forbade exit without a passport. The "emergency" has since been maintained by all three of our Presidents (at least for passport purposes), and it is a crime to leave the country without one.

There are then two distinct facets of the passport problem. The more traditional one has to do with enabling the citizen to make his way abroad, with putting at his disposal an identifying document which in the past has been useful and which today may be indispensable. The latter-day problem has to do with the citizen's power to leave his country, however welcome he may be elsewhere. Quite different considerations may obtain. We might under the former refuse a passport lest the citizen become a nuisance, a persona non grata to a sister state. We might under the latter refuse a passport lest he work up among our sisters an assault on our bastion or our peace of mind. Somewhat different legal considerations, too, will be in play when the question concerns the "right" of the citizen who is being cribbed, cabined and confined. But in the last few years it has not been easy to keep disentangled the legal and political threads of these two situations. Surely the predominant motivation has been not the protection of our sister states nor the friendly course of our foreign relations as such. Nearly every passport denial has been a decision to keep the citizen here within the high walled fortress where he can be isolated, neutralized, kept, let us say, to his accustomed and observable routines of malefaction. It has been simply one facet of our tactic of domestic security, and only incidentally a matter of foreign policy. Legally, too, doctrine sidles from one track to the other: a denial of passport, though motivated essentially by a policy of security, is still justified on the ground that the passport is "really" (as indeed it once was) a kind of good "reference" to our sister states abroad and no one, the argument runs, has a "right" to be recommended whose character or intentions are questionable. From this the conclusion would follow that he can go, but without our blessing. But, of course, he can't go. Thus the passport problem centers around the power to forbid our citizens to leave the country for travel.

I say "for travel." It has been our policy since the beginning that a citizen is free to expatriate himself. Even those to whom this freedom is not a sacred principle will be heard to say, "If you don't like it here, go back where you came from." There have been minor indications that we might try to prevent the expatriation of persons who would be serviceable to our cold war enemies. Some years ago visiting Chinese students--among them geographers--were denied exit for that reason. But again that is not our major problem: it is those who wish to travel as American citizens with whom we are most concerned. What is their right as Americans to travel, what is the legitimate power of the United States to keep them home?

The passport, wrote Peuchet, a French revolutionary of 1791, is a police "disorder" so much the more odious that it employs all the arts of tyranny and deprives man of the first, the most well-founded of his rights, that of breathing the air which pleases him without asking the permission of one who can refuse it. And in the same year the Declaration of the Rights of Man guaranteed the natural right to wander at will. These declarations set, no doubt, the ideal which came finally to be very near the truth of the mature nineteenth century. But in less than a year in France itself these grand sentiments broke against the rocks of French revolutionary need and the ingrained habit of the ancien régime: the French restored a system of control even more thoroughgoing than that of the monarchy. But the Anglo-American can appeal to the original (1215) Magna Carta itself, which in its 42nd chapter grants that it shall be lawful to any person, for the future, to go out of our kingdom and to return safely and securely, saving allegiance to itself. When it is remembered that many of the "civil liberties" as we know them today--the "freedoms" of speech, worship and assembly--are not mentioned in Magna Carta, it is curious that it contains a chapter on freedom of travel. Was it, perhaps, a protest against the growing and incipient centralizing power of the King and State; the allegiance to Christendom? The earlier Constitutions of Clarendon (1166) had forbidden archbishops, bishops and parsons to leave England without the King's license. The 42nd chapter is not repeated in the Great Charter of Henry III which is the version of Magna Carta appearing actually in the statute book. It was one of the chapters omitted because they seemed "weighty and doubtful;" in this case, perhaps, an opening for the encroachment of Papal authority. Some would argue that Magna Carta did no more than codify preëxisting rights and that therefore the omission did not impair the previously explicit grant.

But later statutes did set limits to travel. A statute of Richard II radically reversed the presumption in favor of travel, forbidding all travel except to Great Men of the Realm, "true and notable merchants, and the King's soldiers." In the time of Elizabeth statutes authorized forfeitures for unauthorized travel, forbade departure to attend any visitation, congregation or assembly for religion; under statutes of James I it was forbidden to send children to Catholic schools abroad and later to send them abroad for any purpose whatever. These statutes are, of course, the precise counterpart of our present day prohibitions. The Papacy to Englishmen of those days was no less the archenemy than the Communist International is now to us. But after these statutes we hear little or nothing of restrictions on foreign travel. In 1606 the statute of Richard II was repealed, and except in time of war the prerogative has not since been used to restrict travel "in the public interest." The issue was not one which warranted mention in the great revolutionary charters of the seventeenth century. Blackstone at the end of the eighteenth century says in a cautious, lawyer-like way, "At present everybody has, or at least assumes, the liberty of going abroad when he pleases. Yet undoubtedly if the king, by writ of ne exeat regno thinks proper to prohibit him from so doing . . . . . . and the subject disobeys, it is high contempt of the king's prerogative, for which the offender's lands shall be seized till he return, and then he is liable to fine and imprisonment."

Is free and unrestricted travel, then, a "right" of Englishmen? It is nowhere so stated nor granted by formal charter, nor was it ever an issue in revolutionary times. It has that powerful yet ambiguous confirmation which comes from a custom which is taken for granted and upon which so many of the "rights" and "freedoms" of Englishmen rest. Did this customary "right" of Englishmen become fixed as such in our Constitution as is the case with the right of speech, religion, association (the First Amendment) or as something comprehended in the concept of "due process of law" (the Fifth Amendment)? It is nowhere granted specific protection and though that is not conclusive, it suggests that the protection is something less absolute than that, let us say, of speech or religion, and that if there be any protection, it is against "arbitrary" or "unreasonable" restraint.

The constitutional position of this asserted freedom is still very uncertain. The Court of Appeals of the District of Columbia has, in the last few years at least, rejected the extreme claim of the Government to an absolute and unreviewable power to deny a passport. The Government has argued that the passport was a "political" document, the issuance of which was within the complete (and thus arbitrary) discretion of the constitutional organ for conducting foreign affairs (the Presidency). The Court has flatly rejected this argument. It would perhaps be acceptable in a world in which one could travel without a passport. "The right to travel," declared Judge Fahy, "to go from place to place as the means of transportation permit, is a natural right subject to the rights of others and to reasonable regulation under law." A restraint imposed by the Government of the United States upon this liberty, therefore, must conform with the provisions of the Fifth Amendment that "No person shall be . . . deprived of . . . liberty . . . without due process of law." It follows that if a passport is necessary to leave the United States or to go into another country, its issue may not depend on absolute Executive discretion. The constitutional mandate requires that one denied a passport be given a hearing: that he be confronted with evidence and told the reasons for denial. But the Government still insists that it may protect from disclosure "information affecting the national security or tending to disclose or compromise investigative sources or methods." And the Court of Appeals has as yet expressly refused to decide whether a denial resting on undisclosed information would violate the Fifth Amendment.

The constitutional mandate requires, in the second place, that the reasons given for denial be pursuant to some formulated policy and that that policy be "valid." There are as yet no decisions squarely determining the criteria of validity. The Court has hinted that the Executive discretion may be fairly broad. "World conditions . . . as to which the Executive has special information and on the basis of which he is especially qualified to make decisions, bear upon the question. For reasons thus suggested the issuance of passports throughout our history has been left to the judgment of the Secretary of State under Presidential regulation, and is subject only to constitutional safeguards. And even these must be defined with cautious regard for the responsibility of the Executive in the conduct of foreign affairs." In a recent rather curious case one Kraus, who had been discharged from Hunter College in 1933, applied for a passport in order to go about the world to enlist support for a hearing of "the Kraus Case" by the U.N. Commission on Human Rights. Kraus, it seems, had embarrassed our consuls here and there, was impecunious and heedless of the usual prudential philosophy. He was denied a passport, possibly on the ground that he would not have funds to return, possibly because he was held to be a nuisance abroad. The majority of the Court held the action invalid partly because the denial rested on no clearly formulated policy, partly because it seemed to have a vague hint of a "means test" and such a test would raise "serious constitutional questions." This unrepresentative and unsatisfactory case is the closest we have come to a decision holding that some reasons for denial may be held invalid.

But the constitutional approach begs the paramount issue for a self-respecting, intelligent government. The question should be not how far we can go without reaching the bounds of outrage, but precisely what our policy should be.

II

First let us turn to what the present policy is. From the beginning the Department of State has had undefined discretion, first without and then under statute. In the nineteenth century passports were customarily issued if proof of citizenship was adequate. But as a heritage of the strict Civil War control of exit and entry, an oath of allegiance came to be required. Seward at this time opposed the issue of a passport to persons going abroad on "errands hostile and injurious to the peace of the country," referring in particular to "insurrectionary assemblages." In 1903 it was stated more broadly in a Departmental circular that the Secretary in his discretion might refuse a passport to anyone who he has reason to believe desires a passport "to further an unlawful or improper purpose." In an opinion of the Attorney General in the same year it is stated that there might be conceivable circumstances in which the issue of a passport would be "inexpedient for the public interests" as, for example, to "one of the criminal classes or an avowed anarchist." Bayard in 1879 opposed the issue of passports to Mormons bent on propagating polygamy abroad "inasmuch as polygamy is a statutory crime," though his circular gave expression to the prime difficulty in administering all such policies, namely, the problem of proof. A few years later a circumspect consul in Chefoo refused passports to two doubtful ladies who announced themselves as "tourists, stay in Port Arthur indefinite." But the Department took the view that the derelictions of the ladies, if any, should be dealt with by the law of the sojourning country. It should be remembered that at this time the citizen could travel without a passport. It was sometimes the thought of the United States that if it did issue the passport, it committed itself to "protect" the citizen abroad; thus it might refuse a passport to one whom it deemed not worthy of protection or likely to present it with a special problem. Yet it seems clear that the passport though possibly a moral commitment has no legal bearing on either the power or obligation to protect; at that point the single question is whether the unfortunate traveller is a citizen.

A statute of 1926 confirmed the long-standing discretionary powers of the President. In 1950 Congress did provide one criterion for passport denial. It forbade a passport to members of "Communist organizations" which had been ordered to register as such with the Attorney General. The registration provisions, however, have not yet become effective even against the Communist Party, and this law does no more than give moral support to policies otherwise derived. Under the Immigration and Nationality Act of 1952 the President is authorized to proclaim the existence of a national emergency and thereupon impose such restrictions on exit and entry as "the interests of the United States require." Under these statutes the Department of State has issued regulations concerning the issuance of passports. A passport will not be granted to a person who is a Communist, or who engages in activities which support the Communist movement and warrant the conclusion that he acts under its direction, or is going to engage in activities which will advance the movement; or to one whose activities abroad would violate the laws of the United States, "prejudice the orderly conduct of foreign relations" or "otherwise be prejudicial to the interests of the United States."

What have these policies meant in practice? As a matter of fact, it is nearly impossible to know in any case just what policy is being applied, since unless driven to it by a court order the Department ordinarily conceals the evidence (if any) upon which it has acted, and gives no more reason for the denial than "the interests of the United States." We can suppose that it is difficult if not impossible for a known Communist to receive a passport. It may be that denial of passports to Paul Robeson, Howard Fast or to persons who make a practice of attending "Peace Congresses" rests on the surmise (or secret evidence) that they are Communists. One suspects that the denials to Corliss Lamont, Rockwell Kent, Arthur Miller were based on a suspicion or information that they once were Communists; and that as a routine matter this may be decisive without further proof of the present status. In these cases there may, indeed, be no real conviction that the applicant is going abroad to further Communist ends. If the applicant puts up a fight, if he goes further and undertakes costly litigation, or if he can see his way clear to marry Marilyn Monroe, he may wring from the Department a six-month honeymoon abroad. A court order requiring the giving of a reason more circumstantial than "the interest of the United States" may force the grant of a passport because the Department may be unwilling or unable to be more explicit. Without a court order many persons may be forbidden to travel abroad as and when they purpose, for no more reason, as far as we know, than the routinized and obscure suspicions of a government bureau.

It would seem that the applicant need not be suspected even of Communism or subversion. Congressman Leo Isaacson was denied a passport because he was going abroad to attend a conference to aid Greek rebels, a purpose contrary to our policy; thus the grant of a passport would not be "in the interests of the Government of the United States." Reverend J. Henry Carpenter, a highly respected inter-faith leader, who had once urged "high level negotiations" between the United States and the Soviet Union, was denied a passport to visit Japan. Mrs. Shipley, at the time Chief of the Passport Division, said, "Dr. Carpenter knows the answer for our refusal of a passport. It is his political activities." Somewhat similar was the case of the Reverend Stephen N. Fritchman, who for the argument we will assume to be a "left winger." He was not permitted to attend and speak before the 100th anniversary of Unitarianism in Melbourne. He was told that he could appeal, but by then a grant might be too late. One receives a strong impression that a passport may be denied to any individual who at any time has held unorthodox political or moral views; if this impression is wrong, it is nevertheless warranted by the failure or refusal of the Department to explain or justify its administration. When an occasional reason is given for a denial, the reason implies that an applicant going abroad to "oppose" the policies of the United States or speak contrary to its interests (as the Government sees it) is guilty of lèse majesté warranting refusal.

III

What restrictions on the right to leave the country can be justified? It is no doubt clear that a person who is fleeing from his obligation to pay taxes, serve as a soldier or even to pay his just debts may be forcibly detained; and he may be stopped if departure is part of a scheme of crime or fraud. But even in these cases it is doubtful that an administrative process, particularly if it rests on a secret dossier, should justify more than provisional detention until such time as the underlying obligation can be determined by due process of law.

Can detention, then, ever be justified where no crime or evasion of obligation can be presently demonstrated? It is often asserted that travel abroad is as much a "natural" right as the right to move or speak freely within the country or to practise one's religion: that it cannot, therefore, be subjected to any different restrictions. Like these other rights, it nourishes the self-determining creative character of the individual not simply by the mere enlarging of his freedom of action, but by expanding the scope of his experience. Nor is the value limited to the individual. It attests to the community of nations; brings its peoples together; promotes familiarity and understanding; enriches and diversifies our science and culture. It is this movement of men and ideas on which our very culture rests. Even where the object of the visit is criticism, it promotes that continuous human dialogue whose aim is mutual adjustment and toleration. We must remember, too, that however we value the citizen's interest in travel, a passport denial based on vague suspicion impairs his reputation and leaves him worse off than had he never applied at all. Nevertheless, the right to travel is distinguished from the other great "rights" and interests, as they are indeed distinguished among themselves. All of them rely for their effective enforcement and their operative meaning on an organized society. If the society grants the right to move or speak freely within its territory, it is at the same time able to bring its force to bear against the improper uses of these freedoms. If movement becomes sabotage or speech conspiracy, it may set under way its criminal or civil procedures. Even the legal use of freedom of speech supposes as a premise the total complex of a society: one which is appealed to, which listens and which replies. This society is the "market place of ideas" which determines the worth of what is offered and so defends itself from error.

In the Civil War and again in World War I, the United States set up a rigid system of passport control. The criterion here is the defense of the country from external enemies. It is asserted that the precedents of "war" have no relevance to "peace." But the critical consideration is defense against an external enemy; and communication abroad between our citizens and the enemy cannot by its nature be controlled by the usual criminal process. The facts in a particular case as to the citizen's intention are inevitably speculative: all is to be done after the bird has flown. Now our Congress and the Administration have concluded that the Communist International is a foreign and domestic enemy. We deal with its domestic aspect by criminal process; we would seem justified in dealing with its external aspect by exit control. If an avowed Communist is going abroad, it may be assumed that he will take counsel there with his fellows, will arrange for the steady and dependable flow of cash and information, and do his bit to promote the purposes of the "conspiracy."

But the rub is that a great many of those denied passports stoutly protest that they are not Communists, and since the action rests on a secret dossier, its validity must be taken on faith. The dossier may purport to demonstrate that the applicant is a Communist or an instrument of the Communists, but as likely as not may show no more than an involvement in unpopular causes. Dean Acheson when Secretary of State justified the Department's policy both substantively and procedurally. He has since recanted. We should, perhaps, attach more weight to the action of the Secretary than to the mea culpa of the later-day critic. What one does or must do under the stress of responsibility and the urge to hold office expresses a profound political reality. But we should listen, too, to the voice of reasoned reflection. Mr. Acheson believes that the secret dossier which was intended for "serious, sensitive and rare" cases has become commonplace and routine. The deadly risk of the program has been "the compulsion toward conformity. Literally thousands of minor officials in millions of cases apply rules of thumb provided by handbooks to determine compliance with scores of security and loyalty programs." The risks of all government regulations, particularly where applicable to great numbers of cases, is the inexorable drift to routine, ultracautious standards and the reliance on narrow, frightened minor officials. These risks inherent in any passport program are among the most important considerations in determining what risks we are prepared to run in not controlling travel. For we must never forget that in our system of government, indeed in any system in which men are to be able to breathe and think freely, we must run some risks. "In our concern over the danger from the Communist conspiracy," says Dean Acheson, "we have been driven to a search for an illusion, the illusion of complete security."

But despite the heavy risks of maladministration, the United States is, in my opinion, justified in denying passports to persons whose journey abroad is presumptively in furtherance of the Communist "conspiracy." If such a policy is not clearly required, it is, I think, within the range of reasoned choice and not violative of fundamental principle. But can the same be said if the finding rests on a secret dossier? The secret dossier compounds the risks of maladministration: the license given to suspicion, malice and the anxiety of petty-minded bureaucrats. The evil of the secret dossier would, however, be somewhat mitigated if denials were limited to cases in which the Administration was prepared to make a specific finding of the Communist element. But should we condemn the secret dossier absolutely and without exception? Shall we deny the urgency of the Government's argument that if it must reveal its sources of information, its sources may dry up? Does it follow that if we recognize the country's interest in self-defense, we must recognize the secret dossier as a condition of effective action? Here, if we invoke Mr. Acheson's notion that some risk is unavoidable, we might with him conclude that the risk of unjust accusation is greater than that which we should suffer from the occasional miscreant who takes the field abroad against us. This is the choice, of course, we make in our criminal law: no conviction may depend upon a secret dossier. The state must choose between revealing its evidence or letting the criminal go scot-free. But this appeal to our "tradition of fair play" is inconclusive; there have been and continue to be a number of consequences visited upon individuals short of imprisonment for crime which rest upon unrevealed evidence, e.g. exclusion of aliens. The use of secret evidence then is not unknown to us. Yet we may feel that it is wrong, and that the risks we should run from abandoning the practice do not exceed those of the criminal law. Nevertheless, I do not feel a sufficient assurance on the point to urge upon the reader the absolute rejection of the secret dossier.

But it is at this point of demonstrable Communist involvement that I would draw the line. We may keep Communist "conspirators" at home because we have determined that the dangers are great and imminent. There may, of course, be other cases of a similar danger: the disclosure of top secrets suggests itself. But no lesser danger should suffice. No mere random anxiety that queer or "radical" persons may meet with others of their kind, may call current policies into question, or cause discomfiture to those at home or abroad, justifies the exercise of a power so likely, as the record shows, to be abused. It is intolerable, I think, that a bureau should thus trammel the individual on grounds no more palpable than "the interests of the United States." The right to go abroad may not be of so exalted a nature as the right to move about, to associate and to speak within one's country: thus to participate in the community's life is the paramount opportunity and duty of the citizen. But it is nevertheless a right of great moment; it is liberating for the individual and fructifying for his own community. It will be said that certain individuals misrepresent us abroad, that they may bring our policy, our culture or our humanity into disrepute. But what government, what courts, what bureaus are capable of judging who shall speak for us, what manners are comely, what culture is sound, what policies are sacrosanct? Who are the persons competent to make such judgments? What law can establish a standard for such action? To put these questions is to give the answer. It becomes clear how monstrous it is, into what perversity we have fallen, when a minister of the gospel cannot go abroad because some minor official disapproves of his "political activity." What began in an alarmed concern for the country's safety concludes in routines of unmitigated gall.

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  • LOUIS L. JAFFE, Byrne Professor of Administrative Law, Harvard Law School; author of "Judicial Aspects of Foreign Relations" and other legal studies
  • More By Louis L. Jaffe