Bazelon, Chief Judge, Leventhal and Robinson, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEVENTHAL
The present cases raise the question whether and to what extent the Secretary of State may enforce compliance with area restrictions on foreign travel, following his determination that travel by United States citizens to five designated countries -- China, Cuba, North Korea, North Vietnam, and Syria -- would be inimical to the nation's foreign relations. *fn1
In Zemel v. Rusk, 381 U.S. 1, 85 S. Ct. 1271, 14 L. Ed. 2d 179 (1965), the Supreme Court held that the Passport Act of 1926, 22 U.S.C. § 211a (1964),2 authorizes the Secretary to make such a determination and to restrict the validity of United States passports for travel in these countries. United States v. Laub, 385 U.S. 475, 87 S. Ct. 574, 17 L. Ed. 2d 526 (1967), however, held that travel to these forbidden places without a specially validated passport has not been made a criminal offense by Congress.
The question that remains is whether the Secretary may withhold or revoke a passport if the person declines to give assurances that he will not travel to the designated areas.
Congress has not given the Secretary any power to proscribe travel. His power is limited to controlling the issuance of passports and granting of diplomatic facilities. However we must recognize, as the Supreme Court did in Zemel, that denial of a passport has the undoubted practical consequence of effectively limiting travel. This may also be a legal consequence, since Section 215(b) of the Immigration and Nationality Act, 8 U.S.C. § 1185(b) (1964), which is operative because of the Presidentially declared national emergency,3 makes it a crime to leave the country without a passport -- except for travel to certain areas not within the ambit of appellants' cases.4 Taking account of these consequences and the constitutional dimension of the right to travel, the Secretary's power over passports must be construed in such a way as to minimize interference with legitimate travel.
Appellant Lynd's difficulties with the Passport Office arise out of his January 1966 self-styled "fact-finding and investigating" mission to North Vietnam to "clarify the negotiating position of the other side." He obtained a North Vietnamese visa in Czechoslovakia. Appellant Wittman, in an earlier and more modest venture, visited Cuba in 1964 with a group of American students. One of her goals was "to study the educational system." On their respective returns to the United States each appellant was informed that his passport had been "tentatively withdrawn." They individually pursued administrative remedies within the Passport Office, and hearings were held.
At Lynd's hearing two questions of chief importance were posed. He was asked:
If you are issued a passport, will you use the passport issued to you to travel in violation of the conditions or restrictions contained therein, or any subsequent restrictions imposed upon the use of the passport by the United States Government acting through the Secretary of State or other responsible official?
Lynd replied: "My answer to that question is no." He was then asked this question, which was put forward as embodying a "subtle difference."
If you are issued a passport will you travel in violation of the restrictions or conditions contained in the passport, or any subsequent restrictions or conditions imposed upon the travel of a United States citizen by the United States Government acting through the Secretary of State or other responsible official with or without using the passport?
Lynd's answer was that he agreed not to use the passport in areas restricted by the Secretary, but reserved the right to travel to those areas without using a passport.5
The record makes clear that the Secretary's action was based on Lynd's refusal to give a categorical "no" reply to this second question, phrased as a failure to provide assurances that he would not again violate area restrictions in his passport. Miss Wittman was asked similar questions. It suffices here to say that she refused to give any assurances as to her travel "with or without a passport." The hearing officer recommended final withdrawal of their passports pursuant to a regulation, since revoked, which authorized refusal of passport facilities on a finding that the traveler's "activities abroad would . . . (b) be prejudicial to the orderly conduct of foreign relations; or (c) otherwise be prejudicial to the interests of the United States," 27 Fed.Reg. 344 (1962), formerly codified as 22 C.F.R. 51.136 (1965). This recommendation and accompanying findings were adopted by the Director of the Passport Office, and subsequently this decision was upheld ...