TRAVIS v. UNITED STATES

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Argument of Cheif Justice Warren

Mr. Cheif Justice Warren: Levis Travis, petitioner vs. United States.

Mr. Learned Hand, you may continue.

Justice Mr. Justice Learned Hand: Mr. Chief Justice, may I please the Court.

Yesterday, before the recess, the Chief Justice asked me whether or what the police of the Department of State was with regard to newsman traveling to areas on which geographic restrictions had been imposed by the Department.

I’ve been advised that at least since 1957 it has been the unexceptional rule that these Departments apply in all cases that bonafide newsman representing the established news media will be given authority on request to travel on these areas.

Prior to 1957, that was the rule as to all areas other than Communist China.

And as far as Communist China is concerned, travel was almost completely restricted to that particular country.

Returning just briefly to the question of the construction of the statute on his face, our contention, our view that Section 1185’s provision that a traveler departing the United States must do so with a valid passport includes in that rule.

The fact that the passport must be valid to the country for which he is going is based not merely on the fact that the Secretary has so said and has applied that rule as it were extraneously to a passport.

We think that the destination of a traveler is really of the very essence of what a passport has historically has been.

The fact is that, the historical function of the passport has this Court recognized just long ago was Ersytechqui vs. Darse in 9 Peters is, as the document addressed by the Government of the United States to the Government of far nations, advising them that the bearer is a citizen of the United States and requesting that he be granted courtesy and safe travel in that foreign country.

If a passport is not valid and it’s so marked as being “Not Valid” to a particular country, it is in effect no communication to that country.

It’s not the Secretary of the State addressing the responsible officials there.

Justice Abe Fortas: Well, Mr. Learn Hand, the problem here is, this is criminal prosecution, isn’t it?

Justice Mr. Justice Learned Hand: Yes, sir.

Justice Abe Fortas: Now, there has been this very least ambiguity in this situation for good long time and when did the Department start using area restrictions?

Justice Mr. Justice Learned Hand: I think the first area restriction was really imposed way back in 1915 or really 1914 with regard to -- at the outbreak of World War I when –

Justice Abe Fortas: There’s no criminal penalty then, was it?

Justice Mr. Justice Learned Hand: Well, I would like to develop may be more so on the succeeding case really the fact that there was a criminal penalty.

The problem so far is the administration of the statute is involved, Mr. Justice Fortas.

The other side of the fact that they were in effect two criminal statutes enacted both of which cover various forms of violation of area restriction.

Justice Abe Fortas: Now, we’re dealing now on statute passed in 1952, is that right?

Justice Mr. Justice Learned Hand: Yes, but it is a substantial re-enactment of the statute passed first on 1918 and then in 1941, both dealing specifically with war time situation.

Justice Abe Fortas: Well, in any of that, whether it’s back in 1915 or 1952, we have a situation here where they spend some -- I should think reasonable mind would have to use certainly one of them when – can seen that there’s an area of doubt about the criminal penalty that the authorization or criminal penalty in these circumstances.

I think we were told that in May of this year, a bill wasn’t reduced to remedy that petitions, that ambiguity.

Is that the first bill that’s been introduced on the subject?

Justice Mr. Justice Learned Hand: No.

There had been a substantial series of bills, the Travis Brief, the petitioners Brief in this case cites almost 30 which were introduced between the 85th Congress and this past Congress.

Justice Abe Fortas: Well, how would you characterize the reason why none of those has been passed?

Justice Mr. Justice Learned Hand: I would say very likely the reason why is that, the Congress may be does not want to go further than existing legislation in that area.

And I think also realistically of there are all sorts of statutes that enter into why a bill wasn’t passed.

I think this Court has said on many occasions that the fact that Congress doesn’t pass the bill is no indication of a legislative intent.

But I do think, if it were true that the bills proposed did no more than the, we say the existing law, does then I think there would be substance to petitioner’s argument that the proposal of those bills was an indication that the Departments involved believed that that existing legislation didn’t cover this problem.

But the fact is, Mr. Justice Fortas, that the proposed bills do substantially more than existing law does.

Under existing law there were two criminal statutes involved, One is 18 USC 1544 which makes it a crime to use a passport in violation of its conditions.

And that was enacted in 1917; the second criminal statute involve is the statute involved here, Section 1185.

What those two statutes require is proof under 1544 of use of the passport which is generally not true in cases of travel to countries which we have no diplomatic relations because in the passports it’s not just used in order to enter that country.

And what this statute require, the present statute, 1185, is proof of an intent to go to that country at the time of departure.

Now, a petitioner contend that the fact that they’ve been close to 600 violations of area restrictions prior to the bringing of these prosecutions indicates that the Department of State did not believe or the Department of State in Justice did not believe that this was a criminal statute that was applicable.

But the fact is, this statute applies to a very few cases.

It applies only to cases where we can prove intent as of the time of departure.

Now, that’s very difficult when you’re dealing with travel, let’s say to Communist China.

We can’t prove that the man, who travels to Communist China, was ordinarily has that intent at the time he departs the United States and because of the problems of proof, both in this statute and in 18 USC 1544 that this amending legislation has been proposed.

All these, I think all the bills which are listed in Mr. Travis Brief.

Justice Abe Fortas: You’re not telling this, are you, that this statute is not entirely clear?

Justice Mr. Justice Learned Hand: No, I’m not, Mr. Chief Justice.

Justice Abe Fortas: And that it is entirely clear that a criminal penalty may lawfully be imposed in these circumstances?

Justice Mr. Justice Learned Hand: Well, so I --

Justice Abe Fortas: What I am asking about is, why that being so evident, so palpable at least it seems to me, the Government of the United States, States Department of -- Department of Justice have more than jointly having gone the Congress with the simple bill to try to ascertain what Congress really thinks about this.

I mean, what they really want to do.

Because as a matter and, I’ll stand, you are asking the Court really to – in fact this is not a statement – be allowed.

The Government, the Department of the Government because of the powerful ambiguity to say the least in the statute and when we’re dealing in the area of criminal jurisprudence.

Justice Mr. Justice Learned Hand: Just to answer the first portion of your question, Mr. Chief Justice Fortas, we have gone the Congress and the statute which Mr. McTurn cited in response to Mr. Justice Harlan question was the latest proposal at the Department of State recommended.

Now what that statute does, which the existing laws do not, is that it simply makes it a crime to enter an area where to which travel is restricted.

But we think, although its true that the status in its face is not as clear as it might be, we think that passports have, for substantial period of time, been advising those that bear it and those to whom it’s issued that they are not valid for certain destinations.

And, the passports have in fact been referring prior to that Cuba Regulations of 1961 to this other statute, 18 USC 1544.

Because when dealing with countries that are far really from the United States as Communist China and some of the others to which travel was restricted, I think it could very reasonably, been supposed that it would be almost impossible to prove the intent which is required under Section 1185.

Now, the statutes have -- the passport statute have since 1941 borne the legend on the last page that “anyone who attempts to use the passport in violations of the conditions or restrictions contained therein, may have the protection of the United States withdrawn from him while they continues to reside abroad and they be liable for prosecution under the provisions of Section 221” entitled “22 United States Code” which is 18 USC 1544”.

In other words, the Department of State was never suggesting, as petitioners are arguing, that this was merely enforceable by a civil remedy.

In other words, that we will just be removing protections.

It was entirely clear that people who would be bearing passports and if they violated the conditions or restrictions, there would be a criminal statute that would apply.

Prior to 1961, it is true the passport did not explicitly refer to this criminal statute but it did refer to 18 USC 1544.

Mr. Cheif Justice Warren: Mr. Learned, what do you say to the inquiry that was made by Congress of the Department of State concerning the effect of that pass of that press release that we’ve been discussing when it said in reply that “if to bear in this country X, he cannot be assured of the protection of the United States”.

It means that the United States does not approve for the bearers going to country X.

The restriction on the passport does not necessarily mean that if a bearer travels to country X, he will be violating the criminal law.

What do you say as to that?

Justice Mr. Justice Learned Hand: We think that’s true, Mr. Chief Justice and that precisely the problem under the existing statute.

A man who is, for example, travels from the United States to Paris and does not then intend to go to an area to which travel is restricted, is not, if he then decides to go there, violating the criminal law when he goes to the area to which travel is restricted.

The problem with the existing two statutes Mr. Chief Justice is that there were various loopholes that a man is not necessarily violating, and either of them, if he travels to an area to which traveler is restricted.

He violates this statute, the one involved in this case, only if he has the intent as of the time he departs from the United States.

Mr. Cheif Justice Warren: But the answer of this answer of this State Department doesn’t make that distinction you do.

Justice Mr. Justice Learned Hand: Well, it does say, Mister Chief Justice that it’s not – he doesn’t necessarily violate any criminal statute.

And, I might just point out that --

Mr. Cheif Justice Warren: Well, (Inaudible) grab them when I got those that -- when he enters that country, he cannot be assured of the protection of the United States and that the United States would rather he didn’t go there.

Justice Mr. Justice Learned Hand: But that --

Mr. Cheif Justice Warren: It does not mean that he would be violating the criminal law and that is my fair reading of that law of what they said.

Justice Mr. Justice Learned Hand: I think you would cheer me up to concede that the statement is murky and it’s ambiguous.

As a matter of fact, Mr. Chief Justice, the committee itself felt this much as a letter which appears in the very same hearings dated, I think a month thereafter from the committee to the Department of State, specifically refers to that question and to the Department of State’s answer.

And if I may read it, that letter which appears on page 78 of the very same hearing says, “On page 32 of the transcript you were asked with reference to the press release of 1952 whether at that time, the phrase “NOT VALID FOR TRAVEL TO COUNTRY X” stamped on a passport which is interpreted as prohibition for travel to that place and whether the Department has authored its interpretation of that phrase between 1952 and the present time.

The material submitted on this question was not responsive to the question.

That’s what the committee believed.

And, the Department of State came back with the answer which, I must candidly was equally ambiguous.

It didn’t say that it was a criminal probation.

It didn’t say that it felt it was not but it was –

Mr. Cheif Justice Warren: Was the answer evasive?

Justice Mr. Justice Learned Hand: Well, I don’t know whether it’s fair characterizes that whether it was not --

Mr. Cheif Justice Warren: From the stand point of a person accused of a crime under the statue and you must himself interpret that, would you say that it was Obsessive if the State Department was asked a question and answered in this manner?

Justice Mr. Justice Learned Hand: I think that answer would not have put him unnoticed but I think the passport itself did, Mr. Chief Justice and I think that’s the important thing.

He had the passport – the passport was issued to him – and that passport by its on terms, which stated that 18 USC ’44 would apply did put him unnoticed.

I think travelers don’t ordinarily read Senate hearings but they do read that terms of their own passports.

Now, we think, in terms of notice --

Justice Abe Fortas: Yesterday, you told that she didn’t have one.

Justice Mr. Justice Learned Hand: Pardon?

Justice Abe Fortas: Yesterday, you told that she didn’t’ have one.

Justice Mr. Justice Learned Hand: Well, oh, she had one back in 1958 and honored it withstand below.

That passport did not say that it was not valid for travel in Cuba because Cuba was not among the countries listed by it did definitely have the legend that this passport is not valid for and then we had an enumeration of countries and then it stated in the inside back cover that that violations of conditions or restrictions would be criminally punishable, use rather with violations of conditions or restrictions on the passport would be criminally liable.

I think --

Justice Abe Fortas: You said this --

Tell me again just what that legend was.

It was in the passport that this petitioner had.

Justice Mr. Justice Learned Hand: A person to whom a passport has been issued, who uses or attempts to use it in violation of the conditions or restrictions contained therein may have the protection of the United Stated withdrawn from him while he continues to reside abroad and may be liable for prosecution under the provisions of Title 18 United States Code Section 1544.

Justice Abe Fortas: But her passport didn’t state any condition for which she violated so far as this record shows.

Justice Mr. Justice Learned Hand: Her passport did not but we think, when the Secretary announces that “all passports are hereby declared invalid for travel at Cuba”, that has to be read into every -- he makes a public announcement of it that we think that’s in effect amending people, amending the passports of people who hold existing documents.

Mr. Cheif Justice Warren: Did everybody are supposed to know from the announcement of the Secretary of State that his passport is not good anymore?

Justice Mr. Justice Learned Hand: Well, I think that question would be presented, Mr. Chief Justice, were it not for the fact that it was here stipulated that the petitioner definitely didn’t know about it.

I think we would certainly and I don’t think --

Mr. Cheif Justice Warren: We are interpreting a statute here and I suppose what we do will affect a lot of other people and I wonder if you think of that ago that far.

Justice Mr. Justice Learned Hand: No, we don’t think it in order to fly the people who did not actually know that there was a restriction on travel to that area who would accidentally or without knowing that there’s a limitation written into their passport with travel to restricted area.

I don’t think any such prosecution has ever been broad or would be broad.

I think clearly this statute would apply to people who know.

And this statute, because of its intense requirement, I think would be so limited.

It would apply only to people who know at the time that they are departing the United States that their passport is invalid for the travel on which they are going to engage.

Mr. Cheif Justice Warren: I wonder if the fact that the Bar of the Association of the City of New York came to that conclusion that the statute did not form the interpretation as you put on it would not have some, if some indication that it was at least doubtful so far as an individual is concerned.

They made a very thorough study of this situation, I understand, by committee whose lawyers are about 32,000 - lawyers, to my recollection is, from City of New York.

If they interpreted it that way, it would not be some indication that an average citizen would find it difficult to understand and therefore, it would be vague as to him?

Justice Mr. Justice Learned Hand: Well, I think it’s some indication.

I think they relied though quite heavily on material which is not available to the ordinary citizen, which is they relied quite heavily on the answer to the question that you just read, Mr. Chief Justice.

In other words, they were saying the Department of State has admitted that these are not criminally punishable.

And, I think that somebody, really an ordinary citizen who just has his passport and just reads his passport, I think it’s plainly put unnoticed because he reads it he looks at it said that it’s not just valid to the trip that he is making.

Mr. Cheif Justice Warren: As I read your Brief, I thought you yourself had some doubt as to whether did --

Justice Mr. Justice Learned Hand: Well, we do say the status is not as fine --I think I conceded in answer to Mr. Justice Fortas, this question of the statute is certainly not as plain as it could or ideally should be.

Mr. Cheif Justice Warren: How do you reach our cases and uphold that the criminal statute must be applied?

Justice Mr. Justice Learned Hand: Well, we think that where as in this case, the legislative intention is to grant abroad powers to the Secretary of State in determining what is a valid passport and where the statute on its face in effect tells somebody that “you may not leave unless you have a valid passport”.

We think ordinary citizens just presented with that command that they may not leave without a valid passport and with the passport saying that it’s not valid for travel in light of the legislative intention behind these statutes are adequately put unnoticed.

I think that there have been a substantial series of cases, decisions by this Court which have said that although it’s generally true that penal statute should be strictly construed, that doesn’t mean that they are construed inconsistently with what their purpose would be.

Now, here we think, Congress was giving or was intending to impose restrictions in more time and in times of national emergency and delegating to the secretary the power to, within traditional limits, set those restrictions.

Now we think it would be –

Mr. Cheif Justice Warren: What case do you think is most nearly inclined to this case in that regard?

Justice Mr. Justice Learned Hand: Well, this Court’s decision last year in the Standard Oil case, for example, I think referred to the fact that all those penal statutes should have been strictly construed.

That’s not done in order to -- when the legislative intention is defeated.

I think even this Court decision, recent decision in a case such as United States vs. Price, where at that time the act was committed in the Price case after all there was substantial doubt among legal scholars as to whether the act committed were covered by the Civil Rights Act which was there applicable.

And yet, this Court construed that statute despite the doubt that existed at the time the act was committed in light of what Congress’ purpose was at the reconstruction period when the status was enacted.

Now, we think here, in light of the specific evils that Congress was directing its intent, attention to which is war time travel, a travel in times of national emergency, this statute should be read to put travelers unnoticed that their departures with intention to violate area restrictions, when those restrictions are written plainly into the passport, violate Congress’ command.

Mr. Cheif Justice Warren: Well done.

Number 176, United States versus Laub.

Unknown Speaker: Mr. Chief Justice, in light of the Government’s departures on the record, I feel impelled to make a complete answer to Mr. Justice Harlan’s question yesterday about the opacity of the stipulation.

I would like to make this statement.

Unknown Speaker: Would you please speak a little louder?

Mr. Cheif Justice Warren: Surely.

At the time that the stipulation was negotiated --

Unknown Speaker: Would you state the question that you are answering?

Mr. Cheif Justice Warren: Surely.

Mr. Justice Harlan asked me yesterday why the stipulation was opaque with reference to what the petitioner possess at the time she departed the United States.

I told him that I couldn’t go beyond the record at that point, convince him the Government has gone beyond the record.

I would like to make this statement.

At the time that stipulation was negotiated, Mr. Justice Harlan and members of the Court, the United States Attorney and I agreed that the standard of criminality to be applied in this case was whether or not the petitioner held a valid passport specifically indorsed for travel to Cuba.

Having agreed upon that standard, we incorporated the language which you referred to as opaque and which we thought at the time was quite lucid.

It was on that theory that the Court based that the case was tried.

It was on that theory that the case was affirmed on appeal.

And, I submit that it’s a theory upon which this case was preceded from the very beginning.

If I may add that simply one more thing as reference to that legend in the passport concerning Section 1544, that Section has never been invoked in the case of alleged violations of area restrictions and it was not referred to by the Department in its considered reply to Senator Full Bright in 1957, that one which you referred earlier Mr. Chief Justice, that Section so far as I know has never been considered as having any application to Geographic restriction.