Warren E. Burger: Number 67, Helen Maxine Levi Travis, petitioner, versus United States. Mr. McTernan.
John T. McTernan: Mr. Chief Justice, may it please the Court. Petitioner Travis here stands convicted on two counts, the violation of Title 8, U.S. Code Section 1185 for having deported, the United States for Cuba on two occasions in 1962 without a valid a passport. The proof by stipulation was that on neither occasion, the petitioner have and I quote, "A valid United States passport specifically endorsed for travel to Cuba." There is no proof in this record at all as to whether petitioner had an otherwise operative passport. So the evidence shows that she went to Cuba to observe the living and working conditions of the people and the effectuation and implementation of Government programs dealing with health, public health, housing, education, agriculture industry. The fact are then in the record that she did so observed and take photographs, represented a copies of which in the record. And upon her return, she reported upon her observations by way of circular letters to people in this country and by illustrated lectures. And I assume from the decisions in (Inaudible) that this Court is familiar with the statutory editing in Section 1185 and I will not go into that detail unless I'm asked to sufficing to say that 1185 replaced two earlier statutes which in pertinent respects here were identical. There were prior to the 1952 enactment of Section 1185 regulations issued by the Secretary of State and which were adopted by the President after the 1952 statute passed in Proclamation Number 3004 which is set forth on our -- in the appendix to our brief, Appendix F. And these regulations provided that passports would not be required for countries in the western hemisphere. In 1961, the so-called excluding Cuba Amendment was adopted, and this as we see it is a three faceted Government Act which involved a regulation, a public notice and a press release. The regulation is set forth at Appendix B of our brief. It states in terms that it is promulgated under an executive order which in turn was based upon 22 U.S.C.211 (a) is the statute involved in the Zemel case. It does not say that it was promulgated under Section 1185. And the effect of it was to exclude Cuba from the exemption in the earlier regulations pertaining to countries in the western hemisphere. So that by the face of the regulation alone, taking it by itself, a passport was required in the case of a departure for Cuba just as it were had been required for a departure for France, or Burma, or Cuba and whatever. There was nothing in the regulation on itself which required a special endorsement to the passport for Cuba. Simultaneously, with the promulgation of the amendment was the issuance of the public notice that is set forth in Appendix D to our brief, which declared existing passports invalid for Cuba and provided for the future that passports not be valid for travel to Cuba unless especially endorsed for such travel. The third process of the Government Act at this time was the simultaneous press relief, which explained the Government's action is the result of the Government's inability and I quote, "to extend a normal protective servicing to Americans traveling in -- or visiting in Cuba." It advised that the specially required endorsement for passports to Cuba would be granted only to persons, "Whose travel maybe regarded as in the best interest of the United States." We take the position in this litigation, if the Court please that the regulations, the public notice and the press release are an integrated scheme to regulate travel by -- to Cuba by way of license to be issued in a total discretion of the Secretary of State. Now, I would like to address myself to our first position namely that the statute does not authorize the imposition of criminal sanctions to enforce area travel ban. On its face of the statute and I now refer to Section 1185, imposes a requirement that citizens hold a valid passports at the time they cross U.S. borders and that is as far as the statute goes. The face of the statute contains no reference to the destination of it's -- of the traveler and imposes no requirement and no sanctions related to the destination of the traveler. As applied here, the Government would read the statute as permitting the use of a passport requirement with a purpose of prohibiting travel to areas declared out of bounds by the Government. And the issue as we see it is whether the statute is to be construed as we think it is written, simply a border control regulation or whether is it be construed as we think the Government would construe it as a travel to regulation, which imposes prohibitions and licenses and dependent upon the destination of the traveler. Our position rests on three grounds if the Court please. First on the face of the statute which is I've already pointed out, speaks only to holding a passport when the border is crossed and without any reference to destination at all. The second point of our position here is that the legislative history of the statute discloses a purpose to impose surveillance and control over border crossing specifically and articulately directed to security consideration such as spies, saboteurs and fugitives in justice. And as our legislative history shows, the sponsor of the legislation as one of it -- the other three stages at which it was enacted specifically said that it was not directed and I quote again, "it's the legitimate travel of United States citizen." The third ground of our position here is that the history of area restrictions as developed by administrative interpretation and application shows that these restrictions has been consistently regarded as unrelated to the command of Section 1185 as not armed if you will by the sanctions of Section 1185. I said consistently, consistently that is until after and I repeat, after the Excluding Cuba regulations was adopted. Now, it appears in the Government's brief that it concedes our position concerning the face of the statute and it concedes our position concerning the legislative history and I do not discuss this here unless the Court have direct questions to me about that. As I read the Government's brief, it fact -- in fact, it does not deny the facts that we present on administrative construction, although, it would draw from different inferences from it. Concerning administrative construction, I think it's important to observe the dual function of a passport is delineated by this Court in Kent against Dulles. There, the court spoke first the function of the passport as a request directed to foreign government for the safe passage of the traveler and secondly, as a means of exit control. We think that the history of area restrictions developed by the administrative action of the Department of State has always and explicitly acted with reference to the request for safe passage function alone. Without going into the details of the administrative construction which is set out in our brief, let me summarize it briefly if I may in this way. We have presented there all area restrictions which are researched to disclose which were adopted by the department at the time when Section 1185 or one of its identical predecessors was in effect. And none of those instances invokes or is related in any way or warns about the sanctions of 1185. They are all accounts in request for safe passage terms. There is no reference to or warning about a criminal penalty. And this if the Court please, this includes three such instances which occurred after the enactment of the current legislation. And I would draw your attention particularly -- although, certainly not exclusively to the 1918 instance which is discussed in our brief, because the Government pays so much attention to what it was doing at the time the original 1918 statute was passed. Where the Government had to practice at that time, the department had to practice at that time, of saying where -- to what areas the passport was good for but they -- and one of the areas where it was suppose to be not good was Germany at that time. But the Department's explanatory statement said that this doesn't mean that the traveler couldn't go to Germany, it meant that he had to go there on his own responsibility and at his own risk. And then as consistently thereafter, the Government was talking not in terms of a prohibition enforced by criminal sanction but in terms of requesting safe passage. Now two instances, both of them after the current statute was passed, require a little more attention. In 1952, the Department of State passed a so-called ban on travel to communist countries. It declared that these passports would not be validated for a certain named communist countries. In its explanatory statement at that time, it is said that the Department emphasizes, this is its own words that this action in no way forbid that also as it claims, travel to these countries. It said that it contemplated that the traveler would inquire of the Government what conditions were in the countries to which he intended to go and if the normal protective or satisfactory protective arrangements existed the travel would be authorized. We say, if the Court please, that this is in effect a disclaimer that the court -- the -- that area restrictions were being issued with criminal sanctions to enforce them. And indeed, so did the Association of the Bar of the City of New York which termed it an honest admission that the Department lacked criminal powers to enforce area restrictions. More clear and more explicit by way of disclaimer of criminal sanction is the 1957 incident referred to in our brief where the able chairman of the Senate Foreign Relations Committee directed this question to the Department. What does it mean? He said. If a passport is stamped not valid for travel to country X and the holder of the passport goes to country X. Is he violating the criminal law? And the Department asked for a time to study that question and it took two months to study it and then submitted a written reply in which it said, not necessarily. And then went on to illustrate its meaning by saying that peripheral to the travel itself, there might be criminal risks for the traveler because if he went to such a country, currency exchanges might involve even trading with the Enemy Act Violation. Or he might not be able to get a passport in the future or he might be involved in false statement accusations growing out of his application for the passport that he was using. But nowhere, the Court please, nowhere did the court say that kind of travel would violate Section 1185.
Byron R. White: You mean the Secretary?
John T. McTernan: Excuse me, (Inaudible) --
Byron R. White: And the Secretary might have asked the chairman -- well, what do you think under your statute, I suppose?
John T. McTernan: Well, the chairman at that point --
Byron R. White: I mean, this would -- just been an opinion of a -- the Secretary of State is what a statute meant.
John T. McTernan: Exactly. And that's what I'm offering it for you, Your Honor. And I claim that this is an illustration of the administrative interpretation of the significance of area restrictions so far as criminal penalties are concern and that the Secretary was in effect saying there are no criminal penalties if you go where the passport is not valid for.
William J. Brennan, Jr.: Incidentally, this is the -- I noticed stipulations that petitioner, a couple of that did not have a valid passport to -- passport validity endorsed to Cuba?
John T. McTernan: Yes.
William J. Brennan, Jr.: Has he ever paid for (Inaudible)
John T. McTernan: That does not appear in the record Your Honor.
William J. Brennan, Jr.: Well, what do you suppose (Inaudible) to make it a statement to this since you may have passport not endorsed (Inaudible).
John T. McTernan: It seems to me that either inference is possible but neither inference is permissible. I think that --
Byron R. White: And either way, you argue the same. It doesn't make any difference to you whether she had a passport or not?
John T. McTernan: Oh, I think it would make a difference whether she had a passport. The Government chose to prove its case on the stipulation which is in the record. The Government did not choose to advance fact dealing with whether she had any passport at all.
Byron R. White: Well, suppose we read that as saying she had no passport at all, then what, would your argument differ?
John T. McTernan: Well, I think no. I think my argument is not different because I think that the purpose of the Government's act here, the Excluding Cuba regulations (Inaudible) was to establish this prohibition on travel based upon destination. And that this is the essence -- the gist if you will of the prosecution and she can't be held criminally liable for that because I think that the statute did not authorize that.
Byron R. White: Well, 1185 it says that after or what they have assessed that after a -- proclamation, you're not suppose to leave United States without a valid -- without a passport.
John T. McTernan: Without a valid passport.
Byron R. White: (Voice Overlap)I take it that -- are there some country -- would you agree that there are some countries to which you might depart if you have no passport at all and thereby subject yourself to 1185 penalty?
John T. McTernan: It depends on the kind of passport, Mr. Justice White. But I think --
Byron R. White: I said no passport at all?
John T. McTernan: No passport at all. Well, under the regulations which the Secretary --
Byron R. White: I don't -- how about the statute?
John T. McTernan: Oh, the statute alone? If the statute stood alone without the regulations which were issued under the 1952 then I would say crossing the border without a valid passport would violate 1185.
Byron R. White: Now you say that -- you say then that there are some regulations issued by the Secretary which purport to remove any criminal penalty at all no matter what country you're going to and whether or not you have a passport at all?
John T. McTernan: The regulation issued in 1952 said that if the countries in the western hemisphere --
Byron R. White: How about the eastern?
John T. McTernan: -- a passport would not be required.
Byron R. White: How about the eastern hemisphere?
John T. McTernan: Well, by inference it left the requirement for a passport as to those countries --
Byron R. White: So then if you left United States without any passport at all for one of those in eastern hemisphere countries, you would need a passport.
John T. McTernan: You would be violating Section 1185.
Byron R. White: And then if you -- but in the -- does the exemption of travel to western hemisphere countries without a passport, the exemptions under 1185 -- from 1185 criminal penalty rest on the Secretary's regulations that you did not need a passport to go western hemisphere?
John T. McTernan: They arrest it, if you please on the precedent regulations --
Byron R. White: Alright, precedent.
John T. McTernan: -- in 1952, yes.
Byron R. White: And then if you say -- and then the Secretary came along and said, "All hemisphere countries except Cuba."
John T. McTernan: That's right.
Byron R. White: And so why is that Cuba then in the same -- oh, I'll ask you the question directly. Assume someone goes to Cuba without any passport at all, how about a criminal penalty under 1185?
John T. McTernan: Oh, see if -- if the regulation stood along, I think the problem as to Cuba would be the same as the problem going to France. The regulation doesn't stand alone. It stands with the public notice and with the press release. And together, this imposed and they say so. And if they -- they say that they are intended to impose a licensing requirement -- they don't use that term but they say, "You go to Cuba. It isn't necessary to have just a valid passport it has to be -- you have to have a passport that says you can go to Cuba. Now, I say that because of that to which is in the case and inextricable from the case, you can't look at this the same way as you look at a departure for travel.
Byron R. White: Why are we dealing here with an area of restriction against travel, we really aren't? We're really dealing with the statutory restriction against travel without a passport?
John T. McTernan: Well, again --
Byron R. White: And the -- it may be that the Secretary has power himself to impose area restrictions wholly aside, wholly aside from the statutes. Hasn't the court held that?
John T. McTernan: Well, as this Court has held --
Byron R. White: I mean, wholly aside from this statute, 1185.
John T. McTernan: That's your --
Byron R. White: We haven't dealt with that.
John T. McTernan: That's correct. The court has held in this general case that the court -- that the Secretary may impose the area of restrictions under Section 211 (a).
Byron R. White: Now here is a statutory restriction against travel without his passport.
John T. McTernan: That's right.
Byron R. White: And if the Government is arguing that that's -- that that statutory restriction against travel without any passport applies to Cuba?
John T. McTernan: Well, (Inaudible) --
Byron R. White: And if you have no passport for a travel to Cuba if you don't have a valid passport.
John T. McTernan: Well, the Government is --
Byron R. White: (Voice Overlap) argument, I'm not asking you to brief.
John T. McTernan: No. I don't think it's quite clear here Mr. Justice White I think the Government is arguing that the regulation required Travis to have a passport specifically validated for Cuba and she didn't have that and therefore she violated Section 1185.
Byron R. White: I agree with you. I -- I didn't -- I don't -- I didn't think I said anything different?
John T. McTernan: Well, I think there is a difference you see. And this is the heart of the Government's case and its -- and indeed it's the heart of our case. I say for example that -- that if one wants to go to France, he goes and gets a passport and he goes to France. And the only requirement that the law imposes on him is that he holds that passport when he crosses the border. And this is simply a border crossing regulation if you will. But when the Government says, you have to have a passport especially marked for Cuba, to go to Cuba then it is saying more than simply you have to have a passport in your hand when he crossed the border. You have to ask the Government's license to go to Cuba. And this transforms the case as I see it from a simple border control regulation to a system whereby the Government is saying to people, you can go to this place but not to this place unless we tell you specifically you can go to this place where licensing travel in the national interest as they put it. In the -- in these three faceted thing that they did on January 16, 1961. I wonder if I might for a moment address myself again to the question you raised Mr. Justice Brennan about the negative pregnant we're not dealing with the pleading here. We're dealing with proof and the proof in the case is only what the record shows namely that she did not have a passport valid -- validated or especially endorsed to travel to Cuba. And if there is any shortcoming in that proof, it works against the prosecutor, I submit, not against the accused.
Tom C. Clark: I thought a stipulation whereas if you get a permit to go to Mexico with the intention before leaving United States, she was going to Cuba?
John T. McTernan: That's in the case too Mr. Justice Clark but in it -- but both things are true. The evidence -- the stipulation is that she did not bear a valid -- and this is page 51 of the record, paragraph 11, she did not bear a valid United States passport specifically endorsed with travel to the Republic of Cuba. Now, what she did and that's also in the stipulation on page 50 is that she went from Los Angeles to Mexico City on a Mexican tourist card. So that -- so far is that leg of her trip considered alone is concerned --
Tom C. Clark: But she didn't need any passport across (Voice Overlap) --
John T. McTernan: Right, she needed no passport and it was legal. It was a legal departure. After she got to Mexico City, she obtained the permission of Cuba to enter Cuba and then went to Mexico City -- to Havana.
Tom C. Clark: (Inaudible) she applied for a tourist permit to Mexico that was granted.
John T. McTernan: Yes.
Tom C. Clark: And she applied she is intending to go to Cuba.
John T. McTernan: That's right.
Tom C. Clark: Has it -- did not apply for any (Inaudible)?
John T. McTernan: Well, I think that's a fair inference and that the record shows on the next page, she didn't have a passport validated for travel to Cuba.
Tom C. Clark: But no -- no loophole and stipulation, is there?
John T. McTernan: Well, I think that there is this loophole on the stipulation Mr. Justice Clark. The stipulation does not say one way or the other that she had or did not have a valid passport. It simply says that she didn't have a valid passport specifically endorsed for a travel to Cuba which is what the Department's regulations called for to go to Cuba. In other words, she didn't hold this special license which the Government has said in 1961, it was going to require people going to Cuba. Now getting back to the course of administrative construction and interpretation, we referred our brief to the Department's requests for legislation which would impose the very sanctions which the Government urges here. They asked for an amendment of the law which would provide the criminal penalties for persons who go to places which the Department had said they shouldn't go to. There is also in the administrative interpretation a fact found by District Judge Zavatt in the Laub case which is companion to this one, that notwithstanding six -- approximately 600 known violations of its area of restrictions. The Government had failed to prosecute any until it be -- it began a worthy prosecution which did not get to this Court, the Laub prosecution and the Travis prosecution. We're not urging this as the Court please as a discriminatory enforcement of the law proposition but it's an indication that the Government consistently did not regard the going of places for which passports were not validated as crimes under Section 1185. And this is a part of the administrative interpretation of the statute.
Speaker: (Inaudible)
John T. McTernan: Well, the last one that I can specifically denominate as an administration request Mr. Justice Harlan was in 1958. Now, there have been a large state of passport bills introduced in the year since some of which were said to reflect in whole or in part administration viewpoints and I haven't been able to sort those all out on this narrow point but I do point to the 1958 went in with those -- a presidential message from President Eisenhower requesting this information.
Speaker: This is (Inaudible)
John T. McTernan: Mr. Boudin -- hands me a copy of HR 14895 in the 89th Congress Second Session, introduced May 5, 1966 when Mr. Hayes which he advises me as an Administration Bill. That is a legislation requested by the Department and this contains provisions dealing with the specific problem of criminal penalties for persons who go to countries if the Government had declared out of bound.
Speaker: (Inaudible)
John T. McTernan: May 5, 1966. Now, as I apprehend the Government's position in its answer to our position, that is that one must combine Section 1185 with Section 1101 (a) 30 which contains a definition of passport and include as one of the elements of the definition that would be valid for entry of the bearer into a foreign country. And the Government's position is that that definition imports into the word valid and it is used in 1185, validity in terms of being addressed to the countries to which the traveler was destined. We say in the first place that the definition valid for entry of the bearer into a foreign country is a generic definition and doesn't refer to any particular country and not to the country that the traveler intends to go to. This is simply an effort to define in general term a passport. But more important, if the logic of the Government's position were to be followed, it results in precisely the opposite of everything it has done in over 40 years of administering this or the anti Cuban statutes, because the Government says, "If it endorses the passport not valid for travel to country X departing the United States for country X with an otherwise operative passport is a crime under Section 1185." And this, the Government says, "Only because its policies and practices from 1918 on were geographically restricted,"if I may use its term. And therefore because it was geographically restricted, Congress they say must have incorporated this standard of validity into the statutes. But as I have already pointed out, this lies in the face of over 40 years of administrative interpretation to the contrary in which every area restriction issued while this legislation was on the statute books and where criminal sanctions were available as not been -- as not invoked to criminal sanctions, had not referred to the criminal sanctions, and have not sought reinforcement from the criminal sanctions.--
Byron R. White: How long the criminal sanctions been available?
John T. McTernan: Well, its -- the first statute was enacted in 1918. It was valid or in if -- it was operative only for about three years until 1921. It expired within the World War II. Then it was in -- substantially almost identical or reenacted in 1941. That statute was continued in effect by a series of joint resolution to the Congress until the 1952 statute was passed. So when I say 40 years, I don't mean that there was a consistent factor all those 40 years. What I'm saying is that over a 40 year span of time while intermittently this Congress -- this statute was in effect in about 20 years in there when it was not in effect at all and the issue of course wasn't before it. But in that 40-year period beginning in 1918, when there was this statutory language on the books all area restrictions were not couched in criminal terms but were couched in safe passage terms. And as I have pointed out, there have been instances at least two of them when the Government specifically disclaims that its geographic restrictions have violated Section 1185. Therefore we say that if one is to infer the intent of Congress from the administrative practices that co-existed with the enactment and the life of the statute one must conclude that the Congress did not intend 1185 to incorporate prohibitions on travel to designated area. On this question of what is a valid passport, if the Court please, the District Court in Laub and I think largely, if not exclusively on the basis of a the Department of State Handbook which my Brother Boudin cites in his brief in the Laub case, says that valid means issued by the Secretary of the State, countersigned by the traveler and unexpired. Now, we submit that this history based to the statute, the legislative history of the statute, the history of administrative interpretation, permits one and only -- one of two and only one of two conclusions. First, that if conclusively negatives a congressional intent to include in Section 1185 criminal punishment for violation of area restriction and this I think is a soundly supported conclusion. The second conclusion is that this history read in the light of obligatory canons, a statutory construction leaves substantial doubt as to the congressional purpose. And the obligatory canon, we submit are strict construction, strict construction not simply because this is a criminal statute but certainly because it is a criminal statute. But also strict construction because it impinges upon constitutionally protected liberty and on liberties closely related to the First Amendment protection. And under the second alternative, if there is as we say there is substantial and abiding doubt of the congressional purpose then there is no clear statutory command of the kind which the Government asserts. I would like to address myself to due process vagueness. I think that our argument on congressional intent shows the vagueness and ambiguity concerning the very existence of the statutory command for violation of which petitioner here stands convicted. We submit that the understanding of the common world to paraphrase Mr. Justice Holmes in the McBoyle case. Even when aided by a reasonably intelligent lawyer could not know with reasonable certainly that the conduct here punished was in fact forbidden. Again, I call the Court's attention to the statement by the Bar Association of the City of New York that the 1952 statement of the department that it's -- that its area restrictions on travel to the communist countries in no way forbids such travel. It is an honest admission of the statutory basis for criminal prosecution does not exist. But I think that there is an addition to the vagueness concerning the existence of the statutory command, a vagueness which appears from the three faceted act of the Government in trying to license travel to Cuba in January 16, 1961. I referred to a press release which was simultaneously the promulgation of a regulations and the public notice. It speaks in safe conduct terms. It says -- it explains its action as the result of the Government's inability to extend normal protective services to American visiting Cuba. There is no reference in that press release the criminal penalty and if there was anywhere that the Government trying advice its people as to whether they expect them to do when refrain from doing. There was the place to warn of criminal penalties if the Government intended that they apply.
Potter Stewart: Appendix E of your brief?
John T. McTernan: Yes, Your Honor, Appendix E.
Speaker: (Inaudible) -- what are the -- whether the passport provision by the Government (Inaudible)?
John T. McTernan: They do now. The Government advices this is -- advices us in its brief. Our information is that prior to the excluding Cuba amendment and for sometime thereafter it did not -- the passport did not contain such a warning. Now, the --
Potter Stewart: How about at the time this -- that this petitioner made her two trips to Cuba?
John T. McTernan: I don't know when -- I don't know when the -- that date that they began stamping them was Your Honor. I think --
Potter Stewart: She didn't have any passport?
John T. McTernan: Which --
Potter Stewart: She didn't have any warning?
John T. McTernan: Well, or she -- no, Your Honor. She could have had a renewed passport that didn't have the warning. You see there permit --
Potter Stewart: She could've had none at all --
John T. McTernan: She could have none at all if she could have had a renewed passport. Now the second aspect of this Act of January 16, 1961 was the public notice. This is somewhat less clear about speaking and request to say passage term but it does refer to the Secretary's authority and it recites only Section 211 (a), not Section 1185. And again, nothing is said concerning criminal penalty. The regulation itself recites that it was promulgated under Section 211 (a) that of course is the civil passport power. There are no criminal penalties enforcing Section 211 (a) a regulation issued under. There is no warning in this regulation concerning criminal penalties. There is an obscure and Delphic reference to Section 1185 not in the body of the regulation but in parenthetical material following which I see and there are number of citations including that to 1185. If that reference stands just as I have described it, no explanatory words, nothing. It's ambiguity is heightened by the facts that the regulations which it purport to amend that is 22 CFR 53.2 - 53.3 were originally promulgated -- adopted by the President in 1952 after 1185 had been passed when in proclamation 3004 which is in our Appendix E, adopted the regulations of the Secretary to that effect which had pre-existed the 1952 statute. Now, if the Court please, if on the promulgation date, January 16, 1961, the Department intended the criminal consequences for violation of this regulation which the Government asserted in indicting petitioner two and a half years later. The time and the place to had said so was in at least one of this elaborate array of press release, public notice and regulation which attended the Excluding Cuba regulation. And this, the more so because an unbroken line of administrative interpretation beginning in 1918 had never invoked such sanctions, even though the statute was available and on at least two occasions, the Government had explicitly disclaimed such sanction. In these lights, elemental standards demanded fair warning of the conduct proscribed. I find in these facts a striking parallel to those involved in the Bowie case. That is, if will you recall as one of those sit-In cases where people were charged with having violated the statute which made it a crime to enter private property after warning not to do so. They had entered without such a warning. They remained and were asked to leave and they were prosecuted for violating the statute because they failed to leave after being requested to do so. I find the striking parallel between the facts of this case and those in the Krauss Brothers' case which is an OPA Regulation case in which the Government sought to prosecute a wholesale butcher for a tying agreement when he requires his purchasers to buy a certain meat products in addition to those they contracted for. And this Court found that while the price administrator had the authority to prohibit any tying agreement it was not clear from these regulations that he had prohibited a tying agreement involving commodities having valued where they were sold for value or for resealing price. Somewhat apposite here, I think quite apposite here is the Mersky case also cited in our in our brief where an importer of violins in Germany changed the country of origin label after leaving the label intact to satisfy the tariff regulations and the tariff collection requirement and they changed it to -- from a -- labeled it -- said they were made in East Germany to a label that made in Germany where the regulation -- through the separate regulation dealing with consumer protection and his change label satisfied the consumer protection regulation and the Government at that point tried to invoke the tariff regulation against this. In each of these cases as in here -- as in this case, there has been no fair warning of the conduct proscribed. Now, the court below disposed of our fair notice position by pointing to the stipulation of facts that petitioner knew the provisions of Section 1185 and knew the provisions of 22 CFR 53.2 and 53.3. Our answer to that is two quotes. First, that knowledge of these provisions is not tantamount to awareness of their legal effects and it is not tantamount to an ability to resolve the ambiguity which the regulations and the departmental practices are created. In any event, and this gets as close to the problems of Mr. Justice White and Mr. Justice Brennan were asking me about a moment ago. Knowledge of 22 CFR 53.2 and 53.3 would apprise the reader only that from January 16, 1961 on, a passport was required for travel to Cuba, a passport just like it was traveling required for France or Burma or wherever you want to go. But it would not disclose that a traveler had to have a special license to go to Cuba which the public notice and the press release told about.
Byron R. White: This not only had made an exception to an exception but it added something to this?
John T. McTernan: Yes, Your Honor. But not in the regulation, you see. And that's why reading CFR doesn't tell the petitioner just because the public notice and the press release don't go into CFR. The public notice goes into the Federal Register and the press release goes to the newspaper. And the traveler trying to find out what he is required to do then goes from the statute to CFR, perhaps she sees the Federal Register and if the newspapers in his town carries a press release, he might see that. All she could see was the thing that you've pointed out to me a moment ago which of course is in the case that by looking at the regulation, she would see that she needed a passport, a passport to Cuba just as you had needed the passport for France. And as I've said before there is nothing in this record which proves that she violated that regulation so drawn if the negative pregnant operate, it operates against the Government. I know that this is a criminal case.
Byron R. White: The Government's brief says something about we are advised that she had a revoked passport.
John T. McTernan: The Government in making that statement sir, goes outside the record.
Byron R. White: What is your -- a revoke? I thought the state is the one with the revoke statute?
John T. McTernan: Well, I suppose it's a piece of paper by that time.
Byron R. White: You mean it's no pass, it's a no pass for you?
John T. McTernan: Well, if it's validly revoked, I suppose it's a piece of paper. If it's invalidly revoked, I don't -- it becomes -- perhaps in some lingo. I believe that there are departmental regulations setting up administrative procedures to the revocation of the passport. There's nothing in the record dealing with that. Now, if the stipulation with the petitioner made that she knew the provisions of 1185 and Title 22 CFR could be taken as something giving her notice that she should look further.
Byron R. White: Now, where is that CFR you -- I got little behind you on this --
John T. McTernan: Well, Appendix B contains CFR with the Excluding Cuba Amendment in it and Appendix C contains CFR prior to the Excluding Cuba Amendment.
Byron R. White: And where is the Excluding Cuba Amendment? Isn't that --
John T. McTernan: Yes, Appendix B Mr. Justice White, beginning with subparagraph B and just before the proviso.
Byron R. White: Right. I got you, thank you.
Speaker: (Inaudible) the whole Appendix B includes the --
John T. McTernan: I did sir.
Speaker: (Inaudible)
John T. McTernan: Well, Your Honor it's not an opaque stipulation -- to answer your questions beyond that I have to go beyond the record myself. I negotiated this stipulation with the Deputy United States Attorney and if you want me to tell you what I said to him and what he said to me, I'll be glad be to do so. I feel that it takes me beyond this record. If the stipulated knowledge be construed as something that takes the petitioner beyond the CFR because it's some kind of placing her on inquiry then she would look at the regulation itself and see that it was an action taken by the Government under Section 211 (a) which is not a criminal statute but a civil passport statute she would see that she was being required to get a license from the Secretary to go to Cuba because the Government still unable to extend normal protective services to Americans traveling in Cuba. And this was just like all the other geographic restrictions and all of them had been non-criminal in nature. And she would look in vain either on the face of the regulation or the press release or the public notice for any warning that there was a criminal consequence to go into Cuba without the specially endorsed passport. In brief then the knowledge which the petitioner stipulated she had either told her that she need -- have no more than a valid unexpired passport and this knowledge is not material here I submit, or that the knowledge would lead or that knowledge which she stipulated she had would lead to her being misled concerning the existence of a criminal penalty.
Byron R. White: Now, where is the area restriction that covers Cuba?
John T. McTernan: Well, the area restriction Mr. Justice White has to be found in three places. First is Appendix B which excludes the --
Byron R. White: I know that -- that isn't the -- oh, that means is -- all that means is if you need a passport to go to Cuba?
John T. McTernan: The next is Appendix D and the next Appendix E.
Byron R. White: Now, D -- D did you say?
John T. McTernan: D and E. The D and E came out simultaneously. The important part of D if I may suggest is the third paragraph.
Byron R. White: Now, is that the kind of a -- what other countries in the world are in the same position as Cuba, any?
John T. McTernan: I know of none.
Byron R. White: Well, are there any other existing area of restrictions?
John T. McTernan: Yes. There are other areas of restrictions, North Korea, North Vietnam, Albania and China.
Byron R. White: Well, not -- those -- aren't those sort of in the same category that some people get to go? Another --
John T. McTernan: Partly that's true, what they --
Byron R. White: And they have to -- don't they have to have what's called a special authority of the Secretary of State?
John T. McTernan: I think that as a matter of practice --
Byron R. White: This is -- doesn't make Cuba unique for me to -- the Paragraph 2 of Appendix D doesn't make Cuba unique?
John T. McTernan: So far as I know, there is no public statement requiring special validations for these other places. But if it were, I would regard it as in the same category as this one.
Byron R. White: What you're saying -- well, you mean that you aren't really -- you aren't really questioning the area of restriction?
John T. McTernan: Well, I -- you mean the facts of area of restrictions.
Byron R. White: Yes.
John T. McTernan: I'm not contesting the fact that the Government has attempted to impose area of restriction. What I'm contesting here is that there is no basis in law for punishing this traveling violation --
Byron R. White: I understand that.
John T. McTernan: There had been of course and there were in the public prints not long ago considerable information concerning people that went to some of these other areas that were restricted. I believe some of them went even without special state department license. Now our third point if the Court please is that as invoked here, the statute involves a delegation of legislative policy. The very vagueness of the statutory command and the long history of administrative interpretation in not applying criminal sanction as the area of restriction, combined to show that a policy judgment was reached by the Secretary and not by the Congress. And that policy judgment was to punish a crime in violation of area of restriction. The legislature made no such determination. Section 1185 has no standards for the rule making authority. The requirement for -- of a valid passport for crossing the United States' borders was made subject to such exceptions and limitations that the President may provide without giving any guidance as to what the President may or may not do. Now, as I have already pointed out, the Government concedes that the statute does not deal with the prohibitions of -- with prohibitions of travel to designated areas and responses of the legislation did not articulate to show awareness of any such prohibitions. We shown administrative practice consistent and unbroken of not enforcing geographic restrictions by criminal penalties and therefore, we say that the policy decision was made by the Secretary and not by the Congress without authority and without guidelines. The Secretary did not as the Government contends still in the detail. He made a very determination that there was a crime here in violating area restriction. We are aware of the observations of the Court in the Zemel case to the effect that in foreign relations matter, the standards for administrative action maybe broader. With due respect, I must say I regard those formulations as unfortunate particularly as they apply to the rights and the obligations of citizens.
Byron R. White: Well, if a -- if the Secretary just decide it under his powers to issue specific passports for every country in the world and then one go to a certain country and have to get a passport say on the outside, I mean, passport for travel to X, you'd have a whole series then. I suppose if you got one for X and then went to Y to limit -- which was within the area of restriction you would be going with a no passport?
John T. McTernan: Well, when you say that sir, you mean entering with no passport or leaving the United States?
Byron R. White: Leaving.
John T. McTernan: Leaving?
Byron R. White: With no passport.
John T. McTernan: No. Our position is that if you have a passport which is operative --
Byron R. White: Yes, but in the bottom of the outside of the passport says, this is no passport if you're going to -- B, to the Mexico.
John T. McTernan: Our position still is that when you cross the border and that's what 1185 deals with, crossing border. You got that piece of paper in your hand as operative you satisfy 1185. Now, if you go into country X the -- and the Government goes after you for traveling two way planes then we say it's going outside of 1185. It's got into the area that it asked legislation for and never gotten. Now, and -- while I'm on that subject may I say this that there was an unfortunate formulation in our brief. It was referenced to the request for legislation. We don't urge congressional inaction as proof of the legislative intent rather we urged a request for legislation as indicative of administrative interpretation. This was the way the -- this illustrates the way that the Secretary read his powers -- read the powers of Government. But getting back to Zemel --
Abe Fortas: Mr. McTernan.
John T. McTernan: Yes, sir.
Abe Fortas: Excuse me, I know you're been over this but I continue to be worried by it. Is it your view that we must approach this assuming that she had a passport or assuming that she did not have a passport and if your answer to that is neither how can we deal with this case?
John T. McTernan: Your Honor that is the probing question.
Abe Fortas: Because 1185 speaks in terms of a valid passport as being necessary, the indictment, the stipulation -- indictment talks in terms of valid passport which she didn't have a valid passport in so many words. The stipulation says, she did not have a valid passport endorsed for Cuba. Now there's sort of a link in ambiguity to put it mildly throughout all of these that causes me some misgivings.
John T. McTernan: Yes. I understand Your Honor's concern. Let me remind that this is a criminal prosecution and I would suggest that the question properly is what has the prosecutor proved in this case? Has he proved that she did not have a valid passport? Or did he prove that she did not have a valid passport specifically endorsed for Cuba?
Abe Fortas: Well, that's a problem because if we decide that the Government just failed to prove something, well, there's not much -- not for us to fool around with, is it?
John T. McTernan: I think that's right. I think on -- if you decide that the Government didn't prove its case that ends the Government's case. Let me just try to finish on this Zemel question. I think that we deal here in a much sharper and more immediate way with the need for appropriate standards to avoid delegations of legislative power because we deal with the criminal statute where the liberty and the property of citizens is at stake. Zemel didn't dispense with the standards altogether and in this case it seems to me that there is every reason to impose the approach employed in Kent against Dulles to require legislative standards that passed the accepted test.
Tom C. Clark: I guess you don't think sector of obsolete old cases, do you?
John T. McTernan: I'm sorry, sir. I can hear --
Tom C. Clark: You don't think sectors of obsolete old cases you were told yesterday?
John T. McTernan: I do not think so on that point sir, no. And nor do I think that the other cases cited in Kent against Dulles on this question are obsolete.
Hugo L. Black: Can I ask you how long are these laws that the Secretary has written out under this so-called delegation of power?
John T. McTernan: How old are they?
Hugo L. Black: How long? How many pages?
John T. McTernan: Well, the 22 CFR Sections 53.1 to 9 covers three or four pages. The Excluding Cuba Amendment is only a page or two or less than two pages. That's the amendment itself and there's a public notice in the press release, they'd take up another page or two.
Hugo L. Black: How long is the statutory delegation?
John T. McTernan: Oh, that's very brief sir. The -- this is in Appendix A getting beyond the proclamation language except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorized and prescribed that it should unlawful for any citizen of the United States to depart from or enter or attempt to depart from or enter United States --
Hugo L. Black: That's the delegations?
John T. McTernan: That's the delegations.
Hugo L. Black: And the others, how many occasions, somewhat like the tail or the (Inaudible), isn't it?
John T. McTernan: It's a -- if the tail is definitely wagged, the dog here is a -- if I have any time left Mr. Chief Justice, may I save it please.
Earl Warren: Go ahead. Mr. Lewin.
Nathan Lewin: Mr. Chief Justice, may it please the Court. This case and the one immediately following it, concern the meaning and constitutionality of Section 215 (b) of the Immigration and Nationality Act of 1952 which Mr. McTernan has been referring to as Section 1185 because it's that so numbered in Title 8. That provision was first enacted in World War I in 1918, reenacted with a slight modification just prior to our entering into World War II and took its present form at the time of the Korean War. Section 215 (b) in pertinent part makes it a criminal offense and I quote, "When the United States is at war or during the existence of any national emergency proclaimed by the President after the President has also proclaimed that additional restrictions on departure or entry are needed for any citizen of the United States." And here again I quote, "To depart from the United States unless he bears a valid passport." The statute provides that this prohibition is to apply, "except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribed." The principal issue in this case is whether petitioner's departure --
Hugo L. Black: May I ask you in the facts -- to the facts you've -- who is the President under those circumstances?
Nathan Lewin: The Secretary of State Mr. Justice Black has been delegating --
Hugo L. Black: And who's under him? It was really the Secretary.
Nathan Lewin: Well --
Hugo L. Black: On the reg -- on regulation to this kind?
Nathan Lewin: Well, I think regulations of this kind generally go through the Secretary of State. They may begin at the Bureau of Security and Consular Affairs and the passport office of the bureau. But they go up through the Secretary. I don't think that these restrictions are ever imposed or a country is ever added to the list of those to which travelers restricted without the approval of the Secretary or the very least of the Undersecretary, I think not.
Hugo L. Black: They at least travel through somebody up close to the Secretary?
Nathan Lewin: Yes, sir.
Hugo L. Black: And the delegation is to the President.
Nathan Lewin: The delegation -- yes. Well, the Secretary is authorized by -- I forgot exactly the Section but there's a Section in Title 5 which authorizes the Secretary of State to exercise foreign policy functions which are delegated by --
Hugo L. Black: That's a different delegation.
Nathan Lewin: Yes.
Hugo L. Black: Delegations of the President, by the Congress.
Nathan Lewin: True.
Hugo L. Black: Then who has delegated it on down to the Undersecretary -- on the Undersecretary?
Nathan Lewin: Well, in a certain sentence from the President to the Secretary sir, I mean a certain sense, Congress has made that delegation by passing the statute which appears in Title 5. Within the Department of State, those delegations are of course made by department regulations. I imagine the Secretary of State or I'm not sure exactly who the official is in the State Department who structures the delegation's authorizations within that department. But certainly, any authorizations from the Secretary to the Undersecretary is made by -- I would Imagine a formal state department regulation.
Hugo L. Black: It winds up as a crime under a statute which the Congress delegates power to the President, the President delegates it to the Secretary of State and then the Secretary of States delegates it someone within adherence?
Nathan Lewin: Well, Mr. Justice Black, as I hoped to point out in my argument what this -- all that the Congress has made a crime is departing the United States without a valid passport.
Hugo L. Black: Under the terms and conditions of these delegated laws?
Nathan Lewin: Under the terms and conditions of the Secretary's issuance of passports. In other words, the Secretary --
Hugo L. Black: But under terms and conditions of issuance of passports, as described by these -- whatever you call them, laws or regulations, or rules that the handling of the Secretary or some of his underlings have been done?
Nathan Lewin: Yes, sir. Mr. Justice Black but we think that that in every respect is very much like the delegation that exists for example when a statute says that it's an offense to drive an automobile without a valid operator's license. Now, they maybe people within the Commission of Motor Vehicles who will be drawing up regulations and determining how long or what a -- a driving license is effective? What its terms are? Whether the holder of it must be wearing eyeglasses? How he can drive?
Hugo L. Black: I assume that there's some limitation on delegation now, wasn't it? He was referenced to an automobile?
Nathan Lewin: Definitely. But we think that Congress' enactment of the statute does nothing more Mr. Justice Black than simply say that when you leave the United States, you must have in your hand an authorization under the authority that's been delegated to the Secretary which permits him to issue passports.
Hugo L. Black: Under certain terms and conditions and rules and regulations and laws?
Nathan Lewin: Yes sir. And the kind of regulations that are involved here, I might just add Mr. Justice Black, of course those that this Court explicitly sustain against an attack based on delegation in the Zemel case. So that in terms of delegation, we think that that the Zemel case is --
Hugo L. Black: (Voice Overlap) it stands for what is done -- what's done here?
Nathan Lewin: Well, we think that case on the delegation issue does control this one. In other words, what it does say is that the Secretary maybe delegated the power to make this kind of a condition or this kind of a restriction upon the validity of the passport and that's all the Secretary does.
Byron R. White: Mr. Lewin, Zemel didn't deal with 1185?
Nathan Lewin: No, sir.
Byron R. White: And I think it that the -- or maybe I'm wrong but do you rely at all on 1185 for the power of the Secretary to issue the Except Cuba regulation which appears at page 56 of your brief?
Nathan Lewin: Of course --
Byron R. White: Do you rely -- don't you rely wholly on the 1926 Act?
Nathan Lewin: In --
Byron R. White: And the Executive Order of 1938?
Nathan Lewin: We rely entirely on that in terms of the power which the Secretary has to impose conditions or in effect set out --
Byron R. White: Well, (Voice Overlap) -- what I -- I'm just asking whether you rely on it for his issuing these were -- these words that he issued in this regulation. Hereafter, United States passport shall not be valid for travel to Cuba unless specifically endorsed to such travel.Do you rely on that Act?
Nathan Lewin: We rely on that Act insofar, yes. Insofar as that Act authorizes and I hope to elaborate this really similar -- more in my argument because I'd like to just briefly state --
Byron R. White: But why do --
Nathan Lewin: -- if I may, what the powers --
Byron R. White: (Voice Overlap) may I ask you what --
Nathan Lewin: -- that were exercised here.
Byron R. White: Is it only because the Secretary only purported to rely on the 26th Act and the 38th Executive Order that you do?
Nathan Lewin: No, no we rely -- Mr. Justice White, I think --
Byron R. White: Because that's the only possible source?
Nathan Lewin: No, we rely -- in terms of the Secretary setting of conditions, we rely on the 26th Act. On the other hand, in terms of the Secretary's providing as you put it in exception to an exception of course, we rely entirely on Section 1185.
Byron R. White: I know but you did much more than that. I mean, the Secretary did much more than that. He said, not only can't you go to -- do you need a passport to go to Cuba but you can't go at all to Cuba even with one.
Nathan Lewin: Right. And in that sense, we think that the -- that what --
Byron R. White: And in that respect, you rely wholly on the 1926 Act --
Nathan Lewin: To the --
Byron R. White: To impose that area of restriction?
Nathan Lewin: We rely in the 19 -- yes. We rely in the 1926 Act so far as this authority is concerned. We rely on Section 1185 so far as whether it's a criminal offense. In other words, we're saying what Section 1185 did was it said that the authority that the Secretary exercises under the 1926 Act is to impose conditions or in anyway to restrict a validity of a passport. Congress in the 19 -- in Section 1185 said, "If anybody departs the United States with a passport that the Secretary declares under his authority, under the 1926 Act has being invalid, that person just committed a crime."
Byron R. White: Well, yes. You'd be in much a stronger position it seems to me if you argued which you haven't -- it seems like you don't intend to argue that the -- that 1185 itself that Congress in saying you know that when it's a proclamation issued, you need a passport to travel some -- to travel. That the purpose of that statute was to put travel within the control of the Secretary of State to some extent in the time of war and that one of the things he could do in the process of issuing or not issuing passports was to decide that there were some countries to which nobody should travel.
Nathan Lewin: No, maybe I've misunderstood your question. I definitely -- to that extent, we certainly rely on the -- on Section 215 (b) or Section 1185. In other words, what we're saying is, Congress having recognized that it delegated power to the Secretary then provided, at times of war, both in World War I --
Byron R. White: (Voice Overlap) you really had -- you'd -- do you really argue that? The Secretary didn't think he was exercising under such authority, is that really --
Nathan Lewin: Well, I think the Secretary did think he was exercising authority under Section 1185 --
Byron R. White: But it doesn't say so. It says in issuing this part of the regulation, he -- could then be relying on the -- on Section 211 (a) and on Executive Order 1938.
Nathan Lewin: Well, as --
Byron R. White: And there wasn't even --
Nathan Lewin: As the -- I think that --. As that appears in the Federal Register Mr. Justice White, and we try to point that out in our brief. It does have the reference to Section 1185 (and under the rules of construction that the Federal Register of the code of federal regulation provides that is whatever appears in small print) is part of the authority relied upon.
Byron R. White: The small print in your brief, I don't see it.
Nathan Lewin: Well --
Byron R. White: I don't see that 55 or should I?
Nathan Lewin: Well --
Byron R. White: It's too small for me too --
Nathan Lewin: --no at 55 what -- that gives the form of the public notice as it was issued on January 16, 1961. (Voice Overlap)but the -- at page 38 of our brief. We refer to the reference in the Federal Register which does have Section 215, 8 U.S.C. 1185 following the text of the amended regulations. And also refer there to the provision in 1 CFR XXVI which provides that each section of the code is followed by the citation of the statutory authority under the section decision.
William J. Brennan, Jr.: I know but did Travis spend much travel time as I am?
Nathan Lewin: Well, I don't think Mr. Justice Brennan that whether Travis would think that it was -- and again I hope to develop this in the argument that whether Travis would think that this public notice specifically rely on Section 1185 is really relevant to the question of whether she had notice of the restriction and of the fact that she could be subjected to criminal prosecution.
Hugo L. Black: I won't bother you anymore but I would like -- to the point that (Inaudible). What is this congressional standard under which the Secretary authorized to prohibit travel from a country? What is the congressional standard on which the Secretary has said? What does he have to prove or decide is the truth?
Nathan Lewin: There -- there is no men -- there's no enumeration in the statute --
Hugo L. Black: Is it large?
Nathan Lewin: -- of any standards whatever?
Hugo L. Black: Is it large?
Nathan Lewin: It is at large. I must say -- I think the Department of State itself was concern over this at large delegation and has since --
Hugo L. Black: But it well -- well might be --
Nathan Lewin: Yes.
Hugo L. Black: -- a new ground of our opinion, is it not?
Nathan Lewin: Well, true but -- since these cases Mr. Justice Black and the Department of State has issued regulations specifically enumerating the standards on -- which the Secretary exercise --
Hugo L. Black: You mean the Secretary issued the standards on which the Secretary wished to act?
Nathan Lewin: That's right.
Hugo L. Black: That Congress hasn't done anything?
Nathan Lewin: Congress did not do that Mr. Justice Black.
Hugo L. Black: It left him at large.
Nathan Lewin: The Secretary of course --
Hugo L. Black: If he wants to buy from a state, he can do it?
Nathan Lewin: Well, but of course the Secretary is bound under this Court's decisions by his own regulations and he can't depart from that. So --
Hugo L. Black: But ordinarily, I would have thought that Congress was supposed to pass laws and its -- not just to turn loose to one man to pass new law. But to say you can do this within this limitation and does not get on you?
Nathan Lewin: That's true but the only limitation Mr. Justice Black is that the passport -- and this I think was Congress' purpose. Congress was saying that you need in times of war a passport which the Secretary declares to be valid. And left to the Secretary of course --
Hugo L. Black: In fact it had to determine whether that would be the law?
Nathan Lewin: Well, left to the Secretary to determine what the standards of validity would be.
Hugo L. Black: Yes, but what was the statute we were to prohibit. We're talking about prohibition left it to the Secretary to determine if that should be a law prohibiting people from traveling to certain states?
Nathan Lewin: Well, I think by necessity really what Congress left to the Secretary was the choice of the countries. We -- I think this Court pointed out in the Zemel opinion that this practice have been one of long standards of the Secretary of the State.
Hugo L. Black: But it didn't give you many general standards in choosing between countries.
Nathan Lewin: It gave no general standards Mr. Justice Black and I think the only reason for that was that it felt that he couldn't really anticipate what the problems are that might arise which might cause or require area restrictions in various instances.
Hugo L. Black: I guess you wouldn't deny that that's a rather broad standards -- the broad standards established on which to base a crime?
Nathan Lewin: It's a broad standard Mr. Justice Black. Our defense of it is only that it's -- it was the Congress may have felt that it was necessary in time of war and these were war time statutes.
Hugo L. Black: But war time doesn't suspend the Constitution, does it?
Nathan Lewin: No, it's not.
Abe Fortas: Mr. Lewin, if you assume that petitioner had a passport here, if the petitioner wanted to use that passport to go to France, I wouldn't -- it would've been a valid passport, would it not?
Nathan Lewin: If she had a passport, yes sir.
Abe Fortas: We -- let's assume that she had a passport, because that gets us into the compartment of unutterable confusion, (Inaudible). So it would've been a valid passport for that purpose? Which you're saying here is that the criminal statute has to be around to say that the 1185 has to be read. Say that when she has a passport valid for the country, its 1185 (b), I think it is unless he -- in which reads, it can't depart from the United States unless he bears a valid passport. You have to read it unless he bears a passport valid for the country to which he intends to go, is that right?
Nathan Lewin: We read it a little bit more generically or broader than that Mr. Justice Fortas. We say unless he bears the passport which is valid for his travel which includes the country to which he goes, the purpose of this travel. I --
Abe Fortas: Well, that -- in my mind it -- then help you very much. Still adding some words to the statute, what it says, ordinarily at the safety you have a valid passport, that means you have a passport that is validly issued that has not expired. Now, I know that in Zemel, this Court construing another statute namely the 211 (a) I think it is that said that the Secretary has got power to -- state terms and conditions or to add to common understanding a valid passport. And when we're here dealing with the criminal statute, there's a question in my mind as to whether you're not -- whether you're just relying on the Secretary's power to define a valid statute or whether in fact what you are doing is adding some rooms to the criminal statute itself.
Nathan Lewin: Mr. Justice Fortas, we think that all that we're saying is that when you have -- when he travel, has in his hand the passport and the passport has on it, in its present form a page specifically on which the Department of State can endorse extensions, amendments, limitations and restrictions and it has traditionally in a passport endorsed restrictions in terms of the validity of a passport. In other words, if it said that this passport is not valid unless signed. Or as another illustration, one of the Department of States passport forms is an official passport which can be used by Government officials going abroad. Now that passport specifically provide -- this passport is valid for travel abroad only while the bearer thereof maintains the official status which the passport was issued or endorsed. Our argument is that the Secretary of State had issued a document which -- in which he has said that this document is in effect no passport if you violate that term. If an official who had a passport, an official passport, one of --
Abe Fortas: I know, yues, but you can't quite do that Mr. Lewin, can you? Because if Travis had a passport, she would have had an nonofficial passport and as a nonofficial --
Nathan Lewin: Right.
Abe Fortas: -- passport contained such a legend?
Nathan Lewin: The unofficial -- the regular passports contains a legend which says, "This passport is not valid for travel to or in communist controlled portions of China, Korea, Vietnam or to or in Albania or Cuba." In other words, the Secretary of State has said by the very document which she is authorized to issue under the statute that this is not the official document it may look like if you use it for certain kinds of travel. So --
Hugo L. Black: But we --
Nathan Lewin: Mrs. Travis, if she left with this document on a trip, on a voyage to Cuba, was leaving with the document which by its own terms revoked it or (Inaudible) it (Voice Overlap) such a print.
Abe Fortas: When she says -- she says by stipulation as I understand it that she was aware of that and inferentially that she thought that when she got down to Cuba, she would not get the protection of the United States Government. But she says that she did not know and had no reason to know that the statute would -- the criminal statute would apply to her conduct, isn't that about it?
Nathan Lewin: That's her argument, yes. But we say that she should -- knew or should have known that any conditions of validity which the Secretary of State imposes in the document which authorized her to leave are by the terms of this statute of 1185 must be met at the time of her departure. And if the Secretary of State had as Mr. Justice White suggested during Mr. McTernan's argument, issued separate passports for every destination in the world. And had said, well, if you want to go to Cuba, if you want to go to France, you must get a passport A or passport B and somebody attempted to leave the United States on a trip to France with a passport which was only good to Cuba then we say that person would have been violating 1185 and we finally have known it because he would have known by the terms of his own passport that it was not valid for the trip which he was taking. In addition, the -- we think that what really makes that quite clear for Section 1185 is the fact that Section 1185 by its history is a war time or emergency statute. It was enacted in World War I. It was reenacted in World War II and then at the time the Korean war. Both during --
William J. Brennan, Jr.: (Voice Overlap) that passport that you read something to it.
Nathan Lewin: Yes.
William J. Brennan, Jr.: Was that the form of passport that one got at the time she made the -- these trips by Travis?
Nathan Lewin: Well, in the Laub case --
William J. Brennan, Jr.: You read something which says --
Nathan Lewin: Yes.
William J. Brennan, Jr.: --Like
Nathan Lewin: I -- no ---
William J. Brennan, Jr.: (Inaudible)
Nathan Lewin: Yes, Mr. Justice Brennan. I can't say that Mrs. Travis had her passports. But the Laub defendants in there --
William J. Brennan, Jr.: Well, we're not in the Laub case yet.
Nathan Lewin: I understand. No. I --
William J. Brennan, Jr.: But if --
Nathan Lewin: Well, Mrs. Travis --
William J. Brennan, Jr.: If you had gotten this passport at that time, this is the kind --
Nathan Lewin: Yes.
William J. Brennan, Jr.: -- passport you would have gotten --
Nathan Lewin: In 1962, the passport would have said this, precisely would have had that legend on it. Yes, sir.
William J. Brennan, Jr.: Are you suggesting then that she did have a passport like that?
Nathan Lewin: No.
William J. Brennan, Jr.: Would -- well, what are you saying?
Nathan Lewin: As a matter of fact.
William J. Brennan, Jr.: I'm -- what's this negative pregnant you've got in the stipulation. What's that suppose to mean?
Nathan Lewin: Well, we --
William J. Brennan, Jr.: That's now sounds to me as if she had a passport that read this way but was not expressly endorsed for travel to Cuba.
Nathan Lewin: No, Mr. Justice Brennan. The facts are if I can maybe just clarify, if I say things may be we -- they're not specifically in the record. But the facts are that Mrs. Travis had a revoked passport. She had a passport with this issued back in 1958. It did not -- at 1958 that legend was not on the passport. That passport had been revoked by the Department of State. She had received a letter from the State Department advising her that her passport had been revoked and was no longer valid. That was the only document of that kind that she had in her possession at the time that she made these trips.
William J. Brennan, Jr.: But she does have her passport?
Nathan Lewin: She does not now have a passport so far as I know. She --
Earl Warren: What were the grounds for revoking?
Nathan Lewin: She traveled in violation of the State Department's area restriction to communist China and the -- for that reason, her passport then was used a broad mark valid only for return to the United States and after her return to the United States her passport was officially revoked by notice sent to her from the State Department.
Hugo L. Black: What's conviction and the punishment if that's the judgment?
Nathan Lewin: Five years.
Hugo L. Black: Five years?
Nathan Lewin: Five years and a $5,000 fine. The statute as I said is a war time measure and what in our view makes that -- what in our view makes that particularly important is the fact that both during World War I and during World War II, it was the policy of the Department of State to issue passports precisely of a kind that Mr. Justice White referred to. They were passports which on the page dedicated to renewals, extensions, amendments, limitations, and restrictions. The Department of State endorsed a restriction which made that passport valid only for a particular destination and for a specific purpose. In other words, these were war time restrictions on travel abroad. A time that there were hostilities in Europe, a passport for example issued in the 1944 or 1945, specifically stated on that page that the passport was "not valid for travel in any country except"and then listed the passport to which it was valid and the purposes of which it was valid.
Abe Fortas: Nobody's challenging that as I understand it. There were -- our problem is whether they should have gone to Congress if they wanted to apply criminal sanctions here whether you have to go to Congress and get the Congress to declare the crime or whether in effect they have here made -- conduct a crime and circumstances which are beyond the contentment of the Congress or beyond the Congress to delegate to them in the manner in which Congress did so?
Nathan Lewin: We think Mr. Justice Fortas that they did go to Congress. That it was precisely in order to give the Secretary of State or the President as the statute puts it, broad powers to deal with the problems that might arise in war time that the statute was passed. And it was passed through the Congress that had knowledge of this kind of restrictions. And that's why we think that the restrictions are relevant because when Congress said, a pass -- you must -- you may not depart the United States without a valid a passport. We submit it had knowledge of this practice of the Department of State and that it was in effect incorporating those kinds of standards of validity into the statute which it passed. Now, petitioner relies heavily on the debates and the reports at the time of the enactment of the original of -- statute which is a predecessor to Section 1185 in 1918 at the time of World War I. Well, there is no question -- this is the only -- this is the extent of our concession but Mr. McTernan has attributed to us a concession that the statute on its face does not cover this or that the legislative history does. We don't concede that for any means. We think the statute on its face does make this a crime. Now, the legislative history supports the proposition that Congress was delegating to the President, to the Secretary of State the powers which it felt that President and Secretary of State had to exercise in this kind of circumstances.
Potter Stewart: Because that you do concede?
Nathan Lewin: We do concede that the discussions on the floor of the Senate and the House and the House Reports did not specifically refer the area restrictions of such. In other words, they at no point in the House -- there's really only one House Report. That's all what there is on this Bill and its three pages long Mr. Justice Stewart. And the Senate report just has a few technical amendments which were reported out of the Senate Committee. They are in I was told about 25 to 30 pages of floor debate. The main focus of Congress' concern at the time was that the executive had to have some way of controlling who is coming in and who is going out of the United States. But it's also clear, we submit from both the discussion on the floor and from the House Reports that it was Congress' intention to make a broad delegation as broad as it constitutionally could to these President and the Secretary to deal with war time exit and entry.
Abe Fortas: Except you said they never referred to zone restrictions?
Nathan Lewin: They never referred to area restriction.
Abe Fortas: Yes. Did they do that on the floor?
Nathan Lewin: No. On the floor, almost all the discussions was devoted to whether the statute would cover a -- would cover a movement from the United States to Canada and back from Canada to United States. And most Representatives and Senators from the northern states were concern that their constituents might in some way be subjected to criminal sanctions because they were going to Canada without a passport.
Abe Fortas: Well, it makes it kind of rough, doesn't it?
Nathan Lewin: But -- yes.
Abe Fortas: That makes it kind of rough, does it?
Nathan Lewin: Well, the assurance is that were given at the time though, we submit, were indicated that the President would have the authority by the exception provisions of Section 1185 to accept Canada from the reach of the statute. Well, to that extent Mr. Justice Fortas, we submit that this was an indication that this is not merely a border control statute because specifically what the Congress was focusing on was whether people would be able to go to Canada and whether the President would be able to make exceptions for travel to Canada. Now if as petitioner contends and as the defendants in Laub contend, this -- the statute were merely a border control measure and the only thing that the Congress was interested in was in having some way in which the Secretary of State could pass on who was going in and out of the United States at that time then it would not have made much sense to talk in terms of an exemption for -- to travel to a particular country. That indicates that what Congress did have in mind and what it did contemplate and what it knew about was that the President would be or the Secretary of State would be dealing with the destinations of travelers in his regulations as well as with who was permitted to cross the border. Specific reference, we think to the broad power concurred on the President and the Secretary, appears for example on page 3 of the House Report. That report says and I quote, "It is essential to meet the situation that the executive should have wide discretion and wide authority of action. No one can foresee the different means which may be adopted by hostile nations to secure military information or spread propaganda and discontent. Now of course again, Congress was concerned primarily and we don't challenge this. Congress was concerned primarily with the entry of foreign agents or the exit of foreign agents. But we think it also intended to authorize the President or the Secretary of State to deal with the kinds of restrictions which the Department of State had on its own instituted as of 1914 in effect. From 1914 through to the end of World War I, passports were endorsed in the restrictive manner as appears on the footnote on page 22 of our brief. And in the Senate as well, Senator Shields, who was the Chairman of the Senate Judiciary Committee which reported out this Bill, specifically referred to it as legislation so broad in principle and so flexible that they can be adopted by the President and those whom he will authorize to enforce them to any particular conditions adopted by the President to any particular conditions. So although the proponents of the Bill did not refer specifically to area restrictions, we think that they intended to comprehend them within the power that they gave to the Secretary to determine what is in effect a valid passport.
Speaker: (Inaudible)
Nathan Lewin: We think Mr. Justice Harlan that there -- that the administrative interpretation is by no means is a -- as a simple or one sided as petitioner contends. Essentially, what the administrative interpretation comes down to are three pronouncements by the Secretary -- by the Department of State in various times, one in 1919; the second in 1952, when restrictions were imposed on travel to various iron curtain countries, and then an answer to the Senate Foreign Relations Committee in 1957. Now 1919 -- let me go back to that 1918 statute. The 1918 statute applied by its own terms when the United States is at war. Now it was made, departure from the United States without a valid passport and a crime when the only -- only when the United States is at war. Now, it's true that the statement issued by the Department of State at the time that it continued to impose travel restrictions to Germany in 1919, did not specifically refer to Section -- what is now Section 1185. But we think it's substantially doubtful as to whether that Section could even have applied in 1919, although there had been no formal peace treaty. But in 1919 United States was not at war. The hostilities have in effect ceased.
Byron R. White: Well Mr. Lewin, do you really think you're depriving United States with something which you would be deprived to something pretty serious of 1185, that's not applicable to this kind of a situation?
Nathan Lewin: We think it would Mr. Justice White.
Byron R. White: But what if you -- what if you ask people to -- if the person didn't have a passport 1185 applies right off the states, doesn't have any passport at all?
Nathan Lewin: That's right.
Byron R. White: Now if a -- is some one is going to Cuba, I suppose the Secretary would need these to a passport?
Nathan Lewin: Well, you don't know whether somebody is going to Cuba. The application is --
Byron R. White: Can you ask them?
Nathan Lewin: The application for passport has in it a box which an applicant must fill -- the applicant is asked to fill out as to the countries to which --
Byron R. White: Now, yeah, but -- what if the requirement is he has to fill it out?
Nathan Lewin: Pardon? No. But there's no requirement.
Byron R. White: What if they have this specific question, are you going to -- and you cover those places where you have area restrictions?
Nathan Lewin: Well, there's nothing in the statute --
Byron R. White: Alright then, what if somebody said that, "no, I'm not going." And then they went ahead went?
Nathan Lewin: Yes. Well, there -- there are other statutes -- there's no question. There's another statute which would make it a crime -- what makes it crime --
Byron R. White: Then what --
Nathan Lewin: -- obtain a passport by false statement.
Byron R. White: That's the big -- what's the big argument?
Nathan Lewin: No, what we think -- first of all, I think that that there is no, since a passport once issued can be used for a period of time. You received a passport. You can use it for three years. Now, an individual who receives a passport this year for example, 1966, made entirely truthful answer that the trip that he is intending today is to go to France. But then he comes back and five months later without having to applied any additional passport, he travels to Cuba. Now the criminal sanction is necessary --
Byron R. White: So you would have problem with all outstanding passports at the end and even -- and more -- the most that those have -- don't have that legend on them?
Nathan Lewin: With all outstanding passports --
Byron R. White: But not so much with those that have that legend on them?
Nathan Lewin: Oh, no. I think we'd have -- we'd have trouble with that too because people -- what the statute is designed to reach Mr. Justice White, are the people who don't care about whether they have the protection of United States. And that's it -- that's a substantial interest to the Government because as we pointed out in our brief in Zemel. The restriction on travel to Cuba is really, really has I think a dual purpose. One, as a result of the problem that Cuba presents in the western hemisphere, the organization of American States in meetings in 1962, 1963 determine that it was or had found at that time that there was -- that there was a real threat or danger of people traveling within the western hemisphere. Let's say from the United States to Cuba or from some other country to Cuba to be trained for revolutionary activity in some other country in the western hemisphere.
Byron R. White: But if the most -- that if -- where there's only one trip?
Nathan Lewin: Well, with that -- that one trip is quite a dangerous one Mr. Justice White.
Byron R. White: Alright, that's what you're really talking about one trip.
Nathan Lewin: Because we could revoke their passport.
Byron R. White: And you did --
Nathan Lewin: If that's what you mean.
Byron R. White: -- with her passport.
Nathan Lewin: We did with Mrs. Travis, that's true. But that one trip for the person who is interested in or whose views are such that he would like to participate in a -- into revolution in South America and then he then goes from the United States to Cuba for that purpose. The damage is done. If he goes there and he knows that he is not subject to any criminal punishment. He really doesn't care whether she has the protection of United States. A second interest I think is one which is caught also very specifically referred to in general and that is that we try to impose area restrictions on those countries where we don't have diplomatic relations, and where we believe that there is a possibility that American citizens who travel there would be harassed or detained against their will. Now, this isn't -- this isn't illusory or imaginary. The history of the State Department's restrictions are substantially demonstrate this. As a matter of fact, even today we've been advised by the State Department there a thousand citizens of the United States who are in Cuba and who are being detained against there will, although, they voluntarily chose not to leave for an earlier point in time. Now, these again are people who knew very well the time that made this choice that they could not leave and yet they now find themselves in a position where they're unable to leave from where the Government by reason of certainly both legally and morally. The Government of this country is obliged to take whatever step short of war can be taken to effectuate their release. 22 U.S.C. 1732, specifically provide that the President and --
Abe Fortas: You're not suggesting that those people entered under the circumstances of Travis allowed.
Nathan Lewin: No, Mr. Justice Fortas. But the possibility that a group of 60 or 80 such were -- such as were involved in the travel involved in the Laub case could have been detained and then the responsibility would have fall on the United States despite the fact that they knew they could not be protected in Cuba. The responsibility would have fallen on the United States to take means to effectuate their release with the possibility of dangerous international incidents of various kinds.
Earl Warren: But how could -- how could newspaper people or others that are selected by the Secretary of State be protected if these people can't?
Nathan Lewin: We think -- I think probably the Department of State believes that the danger exist even with regard to them but it feels certainly that other interests may be out weigh that danger and that it would be justified in particular circumstances notwithstanding the fact that the danger exist to allow them the travel. I think it's really a balancing of -- on the part of the Department of State of what the various interests are. Newspaper men should be allowed or at least the State Department feels it should be allowed -- they should be allowed access to Cuba to be able to in the interest of the free press to be able to report on the conditions there. And the same is true for people who might have to go there for humanitarian reasons or the Department of State for substantial period of time after the imposition of the restrictions in this case allowed people to go to Cuba to wind up businesses which they had business interest that they have been involved with in Cuba. So that, all these really Mr. Chief Justice are -- involved a balancing of interest in each case.
Earl Warren: But there's no -- there's no limit on that power though is it of the Secretary of State. He can say that we would let you go but he wouldn't let me go and what is the justification for that broad power?
Nathan Lewin: I think that the justification that Congress had in just passing the statute and I think in allowing it to continue is that --
Earl Warren: Is delegating to him to say anybody can travel from he desires to let travel but nobody else can?
Nathan Lewin: Well, I think Congress just felt that necessity required that that it couldn't pass on every -- on every instance and that maybe it couldn't even set up all the standards by which he might determine who it is who could travel that that they might vary with circumstances and they might vary from country to country. There are at present, five countries or five areas on the list to which travel is prohibited. Now, this -- the number of countries on that list is varied and the circumstances may vary substantially. As I've said --
Earl Warren: What might be the reason for area restrictions but with the same reasoning applied to individuals?
Nathan Lewin: Well, we think it would apply to the standards which would be applied to individuals Mr. Chief Justice. In other words, the Secretary might say that the standards which I should apply in determining who should travel to Cuba are quite different from the standards which I might apply in determining who should travel to say Albania or who should travel to North Vietnam because the conditions are different. If Congress would have enacted the statute which would enumerate the conditions, it would then in effect impose a straightjacket on the Secretary not permitting him to adjust to the varying conditions which might be necessary from country to country. And the -- I think the Secretary though has in order to meet these problems attempted to draft regulations which at least in broad outline state the conditions under which he will grant permission to travel to restricted areas and conditions factored and she will take into account and determine whether the ground --
Hugo L. Black: What was the regulation that's limitable?
Nathan Lewin: That the regulation -- it was not in effect, I must say Mr. Justice Black. It was not in effect at the time in this case. This is a regulation which the Secretary has issued -- it appears in 31 Federal Register 13544 and it's -- it specifically provides that the applications for validation of passports for travels through a restricted country would be considered in the national interest if the applicant were a professional reporter, if he were a doctor or scientist who is interested in furthering his medical or scientific research or if he were a scholar with a post graduate degree who is also interested in doing that or if he were representative of the American Red Cross.
Hugo L. Black: Well, that's subject to the Secretary, let them go, if they wanted do it.
Nathan Lewin: No. Those categories Mr. Justice Black are in effect I think, the Secretary being bound by his regulations under this Court's opinion in (Inaudible). Those are classifications in which the Secretary has said that -- he said an application for --
Hugo L. Black: He had to let every reporter go in --
Nathan Lewin: Well, that would be he said an application will be considered to be in the national interest if its one of --
Hugo L. Black: Well, being said that even -- because he had issue no passport.
Nathan Lewin: Well, I think that maybe subject to some debate. I -- just from the face of it, I think that's --
Hugo L. Black: As a matter of fact it means he has considered those, given special consideration and let him go if he wants to.
Nathan Lewin: Well, now there's another classification in the regulation which specifically says that -- which refers to applications which might be in the national interest and those to that list, other people who are in the news media, the people who are in cultural athletic commercial or educational activities who have some humanitarian considerations such as some family in Cuba or --
Hugo L. Black: He let goes -- go that he wants to go?
Nathan Lewin: Those he would let go that he wants to go passing on the individual case, the individual instance from case to case.
Earl Warren: And does he do the same thing with the newspaper people?
Nathan Lewin: Well --
Earl Warren: Aside -- have gone an individual basis?
Nathan Lewin: I can only read the regulation really Mr. Chief Justice and the regulation appears to indicate that he would have to grant permission to a professional news reporter.
Warren E. Burger: I thought --
Nathan Lewin: I don't -- I --
Earl Warren: I thought you've read in the papers where newspapers at least for some newspaper people have been denied an opportunity to go to some of these communist countries, am I wrong in that?
Nathan Lewin: No. I really do not know. No, I'm --
Byron R. White: When was that regulation --
Nathan Lewin: This regulation was --
Earl Warren: Let's finish this question for you, which is of no mean that --
Nathan Lewin: I really don't -- I -- could I respond to that tomorrow Mr. Chief Justice because I really don't know the answer. I can try and find that out over the recess.
Earl Warren: Alright.
Hugo L. Black: And I thought he knew the answer to that.
Nathan Lewin: Oh, I'm advised that the newspaper reporters applications are not denied that even -- that a reporter for the communist worker was -- his passport was validated for a travel to Cuba. So that is a matter of course they are --
Earl Warren: I wasn't asking just about Cuba.
Nathan Lewin: Yes.
Earl Warren: I was asking about all the communist countries.
Nathan Lewin: Well, if I may Mr. Chief Justice, I'd like to really get in the Laub -- a full answer to that and I'll try to do that by tomorrow morning. Is that's alright?
Earl Warren: We'll adjourn.
Nathan Lewin: Thank you.