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From New International, Vol. XXI No. 2, Summer 1955, pp. 76–81.
Marked up up by Einde O’Callaghan for ETOL.
When the State Department decided to grant Dr. Otto Nathan a passport rather than meet the constitutional issues involved in a Court of Appeals decision directing it to accord Dr. Nathan a hearing, it forestalled a judicial reckoning with the question.
The Nathan case is somewhat old, in the same way that all similar cases before the State Department become “old” before “decisions,” provisional or final, are reached. Originally, Nathan was denied a passport on the ground of either alleged membership in the Communist Party, or association with it and its organizations. Under departmental rules, having been denied a passport absolutely, Nathan had the right to appeal to the Board of Passport Appeals. It was pointed out that Nathan had refused to avail himself of that appeal when it was offered on April 18, 1955. For two years prior to that, however, the State Department just stalled on this important administrative detail and no appeal was available to Nathan.
Only when the case came close to a court hearing, did the Department hasten to correct its administrative irresponsibilities. By then, however, the case had already appeared on the calendar. And now, Dr. Nathan achieved some prominence by being appointed a trustee of the Einstein estate. He demanded a passport to travel to Europe in order that he might execute his duties as such trustee.
Judge Schweinhaut, after hearing the case and listening to the arguments of opposing counsel, became enraged with the State Department and simply ordered it to issue a passport to Nathan. He was especially angered because the Government attorney, one of Mr. Brownell’s departmental disciples, knew none of the reasons why a passport had been denied. It was upon the Court’s instruction that an affidavit was produced within twenty-four hours containing the State Department’s reasons for denying the passport.
In any event, the Government appealed to the Circuit Court of Appeals which, in avoiding a decision on Judge Schweinhaut’s order, instructed the State Department to grant an immediate hearing under procedures similar to a court of law; thereupon, to report its decision to the court for review in the event of a continued denial of the passport.
Such a hearing would involve the presentation of evidence and witnesses, both subject to examination and cross examination by Nathan’s lawyers. This the State Department, in keeping with administration policy, refused to do. Neither did it desire at this time to take the case higher in a test of the Circuit Court’s decision. Rather than grant a real hearing to Nathan or to test the Circuit Court of Appeal’s action, it issued a passport.
In the Shachtman case, the State Department pursued another course. Shachtman made application for a passport more than two years ago. The application was ignored for months. Only the strongest pressure and the employment of legal counsel brought forth the first answer, some six months after the application, denying a passport, on the ground that it would be against the best interests of the country. No further detail could be obtained from the Department.
Further pressure produced a meeting between Shachtman and his counsel, Joseph L. Rauh, of Washington, and Mr. Ashley G. Nicholas of the Passport Division of the State Department, representing the then head of the Division, Mrs. Shipley. The only result of that meeting was a plea made by Mr. Nicholas that the ISL settle its case with the Attorney General’s office.
Shortly thereafter, Mrs. Shipley wrote denying a passport to Shachtman on the ground that the ISL, of which he is chairman, is on the Attorney General’s list. Here we come to an important difference in Shachtman’s case from that of Nathan.
Mrs. Shipley, in denying the passport to Shachtman, stated that it was a temporary denial. In her letter of denial, she stated that although it was known to the Department that neither Shachtman nor the ISL were in any way connected with the “International Communist Movement,” still, the organization was on the Attorney General’s list. When and if that situation was changed, i.e., the ISL was removed from the list, then Shachtman would be able to get a passport.
Under the rules, that meant that Shachtman could not get a hearing from the Board of Passport Appeals because he was not denied a passport outright, or, to put it another way, it was not a complete denial, but a temporary situationl
Mrs. Shipley failed to explain her decision in light of the fact that the Attorney General did list the ISL under the general designation “Communist.” We are led to conclude that either the lady paid no attention to the actual manner of the listing, or that she did not accept, on the basis of the transcript of the meeting with Nicholas, the Attorney General’s designation.
In any case, the decision of Mrs. Shipley left the matter where it had been for some years. She knew, as did Mr. Nicholas, that for seven years the ISL had been trying to get a hearing from the successive Attorneys General without avail. Unless such a hearing was held and the ISL had an opportunity to challenge its listing Shachtman would have to wait an indefinite number of years before a decision on his right to have a passport would be decided definitively!
That is the background to the Shachtman passport case. The case was taken to court in Washington. The lower court upheld the State Department and the case went to the Circuit Court of Appeals where a hearing was held in mid-February. No decision has as yet been handed down, although four months have passed since the case was heard. It is obvious that the case, while not fundamentally different from the Nathan case, involves some special legal questions, since obviously, the Shipley decision, points a finger directly at the Attorney General. It does not seem possible that the Circuit Court of Appeals can come to any favorable decision without taking into account the Attorney General’s list, constructed without notice or hearings of any kind.
The two cases involve an attack on the whole security program of the administration from a rather surprising angle. Ordinarily, it would have appeared that the best challenge to the government program on security, based as it is on administrative decree, the information of stool-pigeons, of unevaluated FBI reports, was a direct case of government employment. But in the matter of Dr. J.P. Peters v. The United States Government, an employee case, the Supreme Court evaded the fundamental constitutional questions, in favor of an administrative one in which it found the position of the government wanting.
Thus the question of the rights of accused persons to confront their accusers remains legally undetermined. Furthermore, the rights of persons under the First and Fifth Amendments, even though employed by the government, likewise remains undetermined. Under the “doctrine” that working for the government is a “right” and not a “privilege” has developed the companion “doctrine” that a government employee has no legal and constitutional rights and/or privileges. Government bureaucracy is free to deal with government employees as it wills.
If as a result of recent cases the no right and no privilege doctrine is upset what becomes of the historic separation of the powers of the executive, the legislative and judiciary branches of the government? This is what worries such a conservative journalistic pundit like Arthur Krock of the New York Times. Krock, of course, is the conservative counter-balance to the sometime liberalism of the New York Times. He is a noted defender of administrative prerogatives against the “popular clamor.” As such, he is a sort of barometer of the interchanging euphoria and dyspepsia of the administration.
Mr. Krock is quite alarmed over the Nathan case because he feels that it marks the interference of the Judiciary in the affairs of the Executive. He deplores the fact that in the Nathan case, “the courts directly substituted their judgment for that of the Executive.” But, if the Executive plays fast and loose with an employee or a passport applicant? What then? What recourse does such a person have against the bureaucratic machine? What if, as Krock himself admits, “the State Department [had] ... a bad record of evasion and delay on Nathan’s passport application ...”? Wasn’t the Executive’s judgment rather wanting in this case? And if a person cannot call upon the Judiciary to assist him in fighting a “bad record of evasion” or “unconscionable stalling by the department,” what then becomes of the rights of the citizen?
This is an issue which Krock deftly avoids as he usually does when the issue involves individual rights and liberties against the governmental bureaucracy. He can compose splendid essays on the democratic rights of corporative business against government bureaucracy – it is within his line of vision. That is his horizon. No, more. He sees in the action of court a return to the Roosevelt era, which to a certain type of conservatism, is equivalent to socialism, or something like socialism. And so, he quotes an unnamed political scientist, who is a lawyer, yet, when he says of the three judges of the Circuit Court of Appeals:
They were calm and judicious in their calculated substitution of their judgment for that of the State Department. They seemed to consider that it is the function of the courts to correct the errors of the Executive, and the fault of Congress for failing to enact a statute granting a “due process” judicial hearing – an adversary proceeding – for passport applications.
Horrendous, isn’t it? Of course, it was entirely all right for the Supreme Court to find Roosevelt’s court plan unconstitutional. That, obviously, was no interference with the rights of the Executive. But for the courts to intervene in behalf of the basic constitutional rights of citizens in a State Department passport case – that is an unconstitutional intervention in the rights of the Executive!
How would it interfere with the rights of the Executive? Listen to Mr. Krock, for he is truly a big mind in Washington!
If the courts should follow the logical line of the Nathan case, and order the State Department to disclose for the record all its reasons for refusing to grant passports, a constitutional crisis would be inevitable (no less). Executive judgment of national security is often involved. There are many factors in foreign affairs not present in domestic administration. A friendly foreign power, for instance, might prefer not to have any American making speeches on subjects that are controversial in its area (you see, Americans just go running around making unfriendly speeches all over the world – we don’t mean admirals and generals and senators, etc. – and some friendly government like Spain might object). It might also prefer not to have its position known, and the Secretary of State, in his Executive judgment and by virtue of the plain statutory power granted him, might honor this request and decide also that it was against the public interest to disclose his reasons.
Which government objected to Shachtman’s passport? Was it the Stalinist government in Russia, because Shachtman might talk to some anti-Stalinist Ukrainian refugees? Or was it Fascist Spain, because Shachtman might talk to members of the POUM or other anti-fascist exiles in France.
Of course, Krock is either kidding or else nobody has told him what has been going on for almost a decade now. Actually, not one of the important cases involves anything that Krock is talking about.
The real problem in the country has been, not the interference of the Judiciary in the affairs of the Executive but the cruel, inhuman, anti-libertarian, unconstitutional so-called security programs and procedures. Krock’s own descriptions of the conduct of the State Department in the Nathan case, does not recommend its judgments. Its role in the Shachtman case is even worse.
The real problem remains: what are the rights of citizens presumably protected by the Constitution? Do they lose these rights when they become employees of the government? Have they no protection against the maliciousness, mendaciousness and simple cupidity of the government bureaucrats and their false accusers? Recent experience illustrates many abuses, but they have almost all been committed by the “judgment” of the Executive branch.
Can a citizen leave the country to travel or to pursue his work? Does he have a right to judicially appeal to departmental denial of a passport when no good and sufficient reasons have been adduced to deny him that “privilege”?
The State Department did not challenge the court in the Nathan case because it was afraid to test its case against him in open court. That is what is important. It is another reason why the Shachtman passport case must be given the fullest support to see it through to the finish. Here, too, the State Department is afraid to test its case legally. It is hiding behind a filthy screen held up by the Attorney General.
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