L/UNA Files, Lot 62 D 205, “Passports: Procedures and Standards”
Memorandum by Mr. Richard J. Kerry, Administrative Attorney, Division of International Administration
Passport Laws and the Position of the Department of State With Respect to the Travel Abroad of United States Citizens Employed by the United Nations
1. authority of the executive branch to deny passports
The authority of the President, with respect to the granting, denial or restriction of passports implicit in his power to conduct foreign relations, has been delegated to the Secretary of State by Executive Order 7856, March 31, 1938 (F.R. Doc. 38–953; F.R. Apr. 2, 1938). The right of the Secretary of State, to grant or withhold a passport as the public interest requires, has been recognized by the Attorney General[Page 68]
(23 Op. Atty. Gen. 509) and by the Supreme Court (see Perkins v. Elg, 307 U.S. 325 at 349).
2. authority of the executive branch to deny departure
The Act of May 22, 1918 (40 Stat. 559) provided that when, in time of war, the President found the restrictions of departure and entry (provided for otherwise by the Act itself) were inadequate, the President could impose additional restrictions by proclamation. Criminal penalties for the violation of restrictions thus proclaimed were provided.
The Act of June 21, 1941 (55 Stat. 252) amended the 1918 Act by broadening the authority of the President to proclaim the restrictions authorized by the 1918 Act, and specifically gave the President authority to issue such a proclamation during the national emergency proclaimed by him on May 27, 1941.
3. laws and regulations presently in force with respect to the departure of u.s. citizens
The President, on November 14, 1941 issued the proclamation authorized by the above cited statutory provisions (Proclamation 2523, 55 Stat. 1696).
The 1918 Act provides:
“That after such proclamation as is provided for by the preceding section has been made and published and while said proclamation is in force, it shall, except as otherwise provided by the President, and subject to such limitations and exceptions as the President may authorize and prescribe, be unlawful for any citizen of the United States to depart from or enter or attempt to depart from or enter the United States unless he bears a valid passport. (May 22, 1918, ch. 81, § 2, 40 Stat. 559.)”
The Presidential proclamation delegated to the Secretary of State authority to make regulations concerning entry and departure of citizens and aliens in accordance with the rules, regulations and orders prescribed in the proclamation. Subsequently, on November 25, 1941, by Department Order 1103 (F.E. 6069) the Secretary of State published such regulations. These regulations reiterated the general rule that no citizen of the United States shall depart from the United States unless he bears a valid passport, and provided the exceptions authorized by the statute. The only exception relevant to the case of United States citizens employed by the UN, who have been denied passports, is that which provides: “No valid passport shall be required of a citizen of the United States … when specifically authorized by the Secretary of State, through appropriate official channels to depart from or enter into the continental United States…” (22 C.F.R. 53.2).[Page 69]
4. the obligation of the united states to permit departure of united states citizens employed by the un
In a memorandum, dated August 17, 1948, L gave an opinion, in response to a request from Mr. Sandifer,1 concerning the obligation of the United States:
- to issue passports to U.S. citizens, employed by the UN, proposing to travel abroad on official UN business;
- to issue passports to U.S. citizens accredited by the UN as correspondents when proposing to proceed abroad to cover the General Assembly in Paris;
- to permit the departure, without passports, of U.S. citizens employed by the UN;
- to permit the departure, without passports, of U.S. citizens accredited by the UN as journalists.
With respect to U.S. citizens employed by the UN, it was the opinion of L that the U.S. was obliged to permit them to depart by virtue of the provisions of Art. 105 of the UN Charter, and that “the United States is obligated to issue a passport to such an official for travel unless the United States amends the laws and regulations, referred to above, so as to permit the official’s departure without a passport.”
L took the view that, although Sec. 11 of the Headquarters Agreement was drafted primarily with reference to aliens, that it in fact covered U.S. nationals as well. With respect to the departure of U.S. citizens employed by the UN, the question, however, was treated as moot since L had previously, in the same opinion, found an obligation, to permit the departure of U.S. nationals, in Article 105 of the UN Charter. Section 11 was the only basis upon which, in the case of journalists, an affirmative answer could have been based on legal grounds. The opinion of L recommended that, with respect to journalists, the legal issues involved be avoided by permitting the journalists to depart as a matter of policy.
The provisions of Art. 105 of the UN Charter clearly apply to aliens as well as to U.S. nationals. Neither the Charter nor Article 105 of the Charter is subject to any express right of the U.S. to safeguard its security. Mr. Meeker, L/UNA, has indicated, however that he considers it clear that Art. 105 of the UN Charter is subject to an implied right of the U.S. to safeguard its security. If this view is accepted, it may be possible to consider the Headquarters Agreement, despite reservation 6, as a partial implementation, in the manner contemplated [Page 70] by Art. 105, of the privileges and immunities therein provided for.2 The only effect then in relying exclusively on Art. 105, in the case of UN employees, and in not invoking Sec. 11 of the Headquarters Agreement, is that the case of UN employees is not a precedent in the case of journalists, and the case of journalists and others not covered by Art. 105 remains undecided for the time being.
5. the effect of the internal security act of 1950 on passport policies of the department
Sec. 6 (b) of the Internal Security Act of 1950 provides:
“When an organization has registered, or there is in effect final order of the Board requiring an organization to register as a Communist action organization, it shall be unlawful for any officer or employee of the United States to issue a passport to, or renew the passport of, any individual knowing or having reason to believe that such individual is a member of such organization.”
The foregoing provision was apparently drafted with reference to the premise stated in Section 2 of the Act under the heading: “Necessity for Legislation” that “travel of Communist members, representatives and agents from country to country facilitates communication and is a prerequisite for the carrying on of activities to further the purposes of the Communist movement.” The registration procedure contemplated by the Act has not yet come into existence. Mrs. Shipley,3 however, inquired through Mr. McFall as to the desirability of giving these provisions interim effect through an exercise of the discretion of the Secretary of State to deny passports. Upon being advised of the desirability of such action, Mrs. Shipley inquired of L, by memorandum dated November 16, 1950,4 concerning the denial -of passports to certain United States citizens who were journalists. In an opinion, dated February 5, 1951,5 L noted that it had been the policy of the Department, for some time, to refuse passports to Communists, but that an exception had been made in the case of journalists [Page 71] in order to avoid criticism. L pointed out that this exception existed as a matter of policy only and was not a legal requirement.
After stating: “Obviously if the Secretary of State had authority in the exercise of his discretion to refuse passports to Communist newspaper correspondents before the enactment of the Internal Security Act, that authority has not been diminished by the enactment of the Act.” L concluded that the policy underlying the McCarran Act would justify a reversal in the Department’s policy with respect to journalists.
6. effect of the internal security act of 1950 on practices in connection with the departure of united states citizens employed by the un to whom passports have been denied
Early in July, 1951, Dimitri Varley, a UN employee, was denied a passport for which he had applied in order to proceed abroad on UN business. The question was then raised as to whether Varley would be permitted to proceed abroad without a passport. The Act of May 22, 1918 (40 Stat. 559), as amended by the Act of June 22, 1941 (55 Stat. 252), provides that it shall be unlawful “for any person to transport or to attempt to transport from or into the United States another person with the knowledge or reasonable cause to believe that the departure or entry of such other person is forbidden by this section …”, establishes criminal penalties for the violation of any of its provisions, and provides for the forfeiture of any vehicle, vessel or aircraft used in such unlawful transportation. Under the provisions of law and regulations now in force, the absence of a passport, in the case of any person destined outside the Western Hemisphere, seems to be reasonable cause to believe that departure is forbidden. Transportation companies will therefore not give passage to a United States citizen seeking to depart from the United States for such a destination without a passport unless Mrs. Shipley has expressly indicated to them that the departure is authorized. In view of the fact that the intent of the McCarran Act is to restrict movement rather than merely to cause the denial of passports, Mrs. Shipley was most reluctant to indicate to any transportation company that they could give passage to Varley. She was advised by L, however, that she was obliged, in view of the obligations of Article 105 of the UN Charter, to indicate to the transportation company that the travel was authorized. She declined, however, to give any such indication to Varley himself or to permit the Department to communicate anything more to the UN than the fact that such a message would be transmitted to the transportation company. The UN took but did not maintain the position that, in view of the fact that an individual who departs from the United States at the present time without a passport or other authorization [Page 72] is subject to the criminal penalties of the Act of May 22, 1918, as amended, Varley should be given such authorization as would make his departure lawful within the provisions of that Act. It is difficult to see how any authorization which is sufficient to bar criminal prosecution of a transportation company is not also sufficient to bar criminal prosecution of the individual. It is therefore questionable whether any real distinction between communicating such authorization to a transportation company and to the individual really exists.
- Contrary to the view expressed by L in the opinion of Aug. 17, 1948, no change in the current regulations appears to be necessary in order to enable the U.S. to comply with its obligation to permit the departure of U.S. citizens employed by the UN.
- Under the present regulations, it would appear that the U.S. is obligated to specifically authorize the departure of any U.S. citizen, employed by the UN, to whom it denies a passport, unless there are overriding security considerations.
- It is doubtful whether any distinction between the giving of such authorization to a transportation company and to the individual is tenable.
- It remains to be determined what security standards apply in the case of persons desiring to depart on UN business without passports, and whether security considerations sufficient to warrant the denial of a passport are also sufficient to warrant denial of departure.
- That no action be taken on the issue of whether or not we are obligated to give any authorization to the individual unless the UN forces the issue.
- That the security question involved in the departure without passports of U.S. citizens employed by the UN be treated on a case by case basis.
- Durward V. Sandifer, in 1948 Deputy Director of the Office of United Nations Affairs, and in 1951 Deputy Assistant Secretary of State for United Nations Affairs. The 1948 memorandum is not printed.↩
- In implementation of Articles 104 and 105 of the United Nations Charter, the General Assembly of the United Nations on February 13, 1946, adopted a resolution (Resolution 22 (I), Part A) which incorporated the text of a General Convention on Privileges and Immunities of the United Nations, and which was recommended to Member States for adoption. The United States had never acceded to the convention, a matter for constant discussion both within the U.S. Government itself and between the United States and the United Nations (documentation regarding this is found in volume i of Foreign Relations, 1946–1948 and volume ii for 1949–1950). Because the United States had not ratified the General Convention (as it was known, in contrast to the 1947 convention regarding the locating of the Seat of the United Nations in the United States, which was spoken of as the Headquarters Agreement), the privileges and immunities of the United Nations as recognized by the United States derived from two other sources: the International Organizations Immunities Act of 1945 and the Headquarters Agreement of 1947.↩
- Mrs. Ruth B. Shipley, Chief of the Passport Division.↩
- Not found in Department of State files.↩
- Not printed (L/UNA File).↩