The opinion of the court was delivered by: MCGARRAGHY
This is a proceeding in which the plaintiff prays for a judgment declaring (a) that he is entitled to a passport under the statutes of the United States; (b) that the passport regulations and rules of the Board of Passport Appeals are unlawful, invalid and illegal; (c) enjoining defendant (the Secretary of State) from continuing to deny a passport to plaintiff; and (d) directing defendant to issue a passport to plaintiff forthwith in standard from and for standard duration.
The plaintiff filed a motion for summary judgment. The defendant Secretary of State filed his answer, motion for summary judgment and affidavit of the Acting Secretary of State reciting the reasons for his decision denying plaintiff passport facilities. This Court held that the denial of plaintiff's application for a passport was a reasonable exercise of discretion by the Secretary of State under valid regulations, and that it was not in violation of the due process requirements of the Constitution, Amend. 5. Thereupon, an order was entered granting the defendant's motion for summary judgment and dismissing the complaint.
The Court of Appeals quoted from Boudin as applicable here that the Secretary should, if he refuses a passport, state whether his findings are based on the evidence openly produced or (in whole or in material part) on secret information not disclosed to the applicant. If the latter, the Secretary should explain with such particularity as in his judgment the circumstances permit, the nature of the reason why such information may not be disclosed. It was pointed out that this will facilitate the task of the Courts in dealing with the question of the propriety of the Secretary's use of confidential information -- a question which was not reached in Boudin.
In a footnote to the quotation from Boudin, the Court of Appeals pointed out that if considerations of internal security rather than the conduct of foreign affairs are involved, the Secretary should so state.
Accordingly, the judgment heretofore entered herein was reversed and the case remanded to this Court for further proceedings not inconsistent with the opinion of the Court of Appeals.
Thereafter, the Secretary of State filed his 'Decision and Findings in the case of Weldon Bruce Dayton' and transmitted a copy thereof to Mr. Dayton. The passport application was denied under Sec. 51.135(c) of the Passport Regulations and because the issuance of a passport would be contrary to the national interest.
The decision of the Secretary of State is divided into six numbered paragraphs, the first four of which have sub-paragraphs (a) and (b) respectively.
The sub-paragraphs (a) of the first four numbered paragraphs are based upon information contained in the open record and relate various associations and activities of the plaintiff.
Sub-paragraphs (b) of the first four numbered paragraphs are based on confidential information contained in the files of the Department of State indicating that a committee of which the plaintiff was at one time chairman, was conceived and organized by Communist party officials as a front for propaganda and espionage activities; that the individuals named as associates of the plaintiff in the organization of said committee were members of the Communist party at the time of their association with the plaintiff in the work of the committee; that another individual with whom the plaintiff was closely associated and with whom he resided for a period of time was an active member of the Communist party, and that he was involved in the espionage apparatus of Julius Rosenberg; that an apartment building in New York, where the plaintiff was present during 1949 and 1950 on more than one occasion, contained an apartment unit leased to the same individual with whom the plaintiff had been associated and which apartment unit was used by Julius Rosenberg and other members of his spy ring for the microfilming of classified United States Government documents which were ultimately transferred to a foreign power; and that the plaintiff's proposed travel abroad is to work in close collaboration with an individual who recently renounced his American citizenship, has held membership in the Communist party outside the United States, has engaged in numerous Communist activities both in this country and abroad, and is suspected of being a Communist espionage agent.
Paragraph VI states that the confidential information referred to in sub-paragraphs (b) of paragraphs I, II, III, and IV, relates to the internal security of the United States; that the substance of this confidential information was disclosed to the applicant during the consideration of his passport application and that to disclose publicly the sources and details of this information would, in the judgment of the Secretary of State, 'be detrimental to our national interest by compromising investigative sources and methods and seriously interfering with the ability of this Department and the Executive Branch to obtain reliable information affecting our internal security. Moreover, it would have an adverse effect upon our ability to obtain and utilize information from sources abroad and interfere with our established relations in the security and intelligence area; and might, with respect to information referred to in paragraph V, prejudice the interest of the United States foreign relations.'
The case is again before the Court on cross motions for summary judgment making substantially the same contentions as originally argued.
We now have a decision and findings by the Secretary of State made in conformity with the ruling of the Court of Appeals and reciting that the denial of plaintiff's passport application was pursuant to the provisions of Sec. 51.135(c) of the Passport Regulations and also detailing the extent of confidential information relied upon in denying the passport, explaining the nature of and the reason why such information may not be disclosed.
In his motion for summary judgment, the plaintiff renews his attack upon the validity of the Passport Regulations and contends that, assuming the validity of the Regulations, the defendant's denial of a passport to plaintiff violates due process.
The defendant contends that the Regulations are valid; that the discretionary action of the Secretary of State in granting or denying passports is subject to judicial review, if at all, only to the extent necessary to determine whether the Secretary of State has denied a passport on stated grounds which are 'arbitrary' and, therefore, do not support his ultimate determination and that, on the open record, without reference to the confidential information in the Department's files, the Secretary would have been justified in rendering the same decision and that his denial of plaintiff's application was not an abuse of discretion. The defendant further contends that if the Court reaches this ...