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Albert Gates

Notes of the Month

The Shachtman Passport Case

(March 1954)


From The New International, Vol. XX No. 1, January-February 1954, pp. 3–7.
Transcribed & marked up by Einde O’Callaghan for the Encyclopaedia of Trotskyism On-Line (ETOL).


On February 10, 1953, Max Shachtman, national chairman of the Independent Socialist League and editor of the New International, applied at the State Department Passport Office for a passport to travel to Europe. The application, made on the stationery of the ISL, stated the purpose of the trip to collect material and information for lectures and articles to be given and written in the United States.

The passport has been denied, but it has taken a year and a month of unceasing pressure to get the Passport Office to make a final and clear decision. For the first six months of this period the State Department was completely silent: it neither acknowledged the application, nor answered any correspondence. Now, the denial has been made on such tricky grounds that no recourse is possible on an administrative level and Shachtman is preparing a suit against the State Department in the Federal Court. This suit will have been filed when this issue of the magazine appears.

Following is the text of the last communication received from the Passport Offic of the State Department, dated March 8, denying Shachtman the right to appeal to the Passport Appeals Board:

My dear Mr. Shachtman:

The Department has received your petition for appeal, dated January 2, 1954, of the decision of the Department refusing you passport facilities.

You are informed that the Department's refusal of a passport to you was not based on the findings that such issue was precluded under the provisions of Section 51.135 or 51.136 of the Passport Regulations. The authority for the refusal is set forth in Section 51.75 of Title 22 of the Code of Federal Regulations which reads as follows: “The Secretory of State is authorized in this direction to refuse to issue a passport ...”

In this connection it may be stated that Sections 51.135 and 51.136 do not limit the authority contained in Section 51.75 but merely prescribe certain categories of persons to whom passports must be refused. No regulations have been promulgated providing appeal procedures for persons who are refused passports for reasons other than those set forth in Sections 51.135 and 51.136 of the Passport Regulations since normally these refusals, in effect, are temporary and conditional and further consideration will be given to the application upon removal of the conditions which caused the refusal. As stated in my letter of January 21, further consideration will be given to the issue of a passport to you if there should be a change in the findings of the attorney general respecting your organization. You were granted an informal hearing in the Passport Office similar to that provided in Section 51.137 and your case thereafter carefully considered by the Department. In the circumstances there does not appear to be any further procedure which you can follow in connection with the passport application at this time.

 

Sincerely yours,
(Signed) R.B. Shipley
Director Passport Office

We are presumably indebted for this situation to the principle under which passports are granted in this country. The granting of passports to citizens of the United States is considered a privilege in sharp contrast to other countries where a passport is regarded as a right of citizenship. We can think of at least one other country, Stalinist Russia, where a passport to travel abroad is granted as a privilege—and then only to the ruling bureaucracy. There, the internal passport does exist, neither as privilege nor right, but as a necessity. Ironically, too, its purpose is to prevent the free movement of its citizens.

If granting a passport in the United States is a privilege, then criteria have to be established to determine when that privilege is granted or denied. Once such a condition exists, however, it is clear that abuse must accompany the rules where decision depends entirely on bureaucratic, administrative whim. In the specific case of Shachtman’s application, we were confronted with a failure or refusal, it amounted to the same thing, of the Passport Office to acknowledge the application or to answer communications. How does one go about remedying such a situation? One writes letters again and again, or telephones, in the hope that the administrative powers will take note of the efforts to establish communication with the office. And if there is no response, as there was not in this case for six months? Either surrender or continue to make demands upon the responsible persons.

In any case, there exist at least three regulations under which passports are not granted to applicants. They are, not necessarily in their order, as follows:

It was assumed in advance by us, given the above fact, that the Passport Office was having difficulty in making up its mind because it had its eyes cocked on the attorney general’s list. There was clearly no ground upon which to deny a passport to Shachtman under Sections 51.135 and 51.136. But in these times we could not be certain of that.
 

Through the intervention of Shachtman’s counsel, Attorney Joseph L. Rauh, of Washington, D.C., a hearing was finally obtained from the Passport Office. More accurately, on November 3, ten months after Shachtman’s application, an “informal” hearing was held with Mr. Ashley G. Nicholas of the Passport Office. Mr. Nicholas went through the farce of trying to establish the identity of Max Shachtman, even as he sat there with an endless number of documents and “confidential reports.” The hearing was brought down to earth with material presented by Shachtman, and Gates for the ISL, and the demand of Mr. Rauh that the Passport Office either grant a passport immediately or state what Communist movement Shachtman was supporting or what laws of the United States he was likely to violate abroad.

It was with some difficulty that we learned that the Passport Office did not believe that Shachtman was connected with any Communist movement, or that he would violate any law of the United States. But we were advised that the difficulty lay in the existence of the attorney general’s list of “subversive organizations.” Wasn’t there anything we could do to settle the matter with Mr. Brownell! It was obviously proving embarrassing to the State Department, since it could not, or would not grant a passport to anyone prominently associated with an organization on the list. At the same time, it would be hard put to defend the denial of a passport on such a flimsy ground without proof that any law, principle, or perhaps, person, would be violated.

Following this hearing, Shachtman was promised an immediate decision. A decision had in fact already been made when the Passport Office refused to acknowledge the application and failed to answer any letters. Its first confirmation came in writing two weeks before the hearing when Mrs. R. B. Shipley, Director of the Passport Office, wrote to Shachtman denying him a passport on the grounds of membership in an organization on the attorney general’s list. But no specific code was cited for this action. That is why Attorney Rauh asked Mr. Nicholas the specific questions mentioned above.

The reader should remember that sometime before, the new administration had promised to establish an Appeals Board in the State Department to hear cases of passport denials.

This was the result of considerable pressure put on the administration. But after almost the whole year had passed, no board was in existence. Only the threat of suit against the de­ partment by other parties forced the Secretary of State to establish such a board.

When the board was publicly announced, Shachtman at once appealed to it under Sections 51.135 and 51.136. The Appeals Board replied that it had no record of any denial of a passport to him under these sections and therefore no case was before it.
 

A sharp communication to Mrs. Shipley finally brought the answer to the above riddle. Mrs. Shipley stated that the denial of a passport to Shachtman was not based on Sections 51.135 and 51.136 which would make the denial mandatory and appealable, but under Section 51.75, which placed the matter within the discretionary powers of the Secretary of State. We were informed that there was no appeal possible from a denial of a passport under that section. Why?

Because the denial of a passport under that section was temporary, since the removal of the condition under which the passport was denied would then permit the issuance of a passport. And the condition? The attorney general’s list. Why don’t you settle your case with Mr. Brownell, we were advised informally. It would save the fearful State Department, already under so much attack, a great deal of trouble.

There’s the rub, as our readers know. How do you get the attorney general to do anything? A year ago, when the new administration came into power and it was rumored that Mr. Herbert Brownell would become the new attorney general, many genuine liberals and democratics sighed with relief. They believed that Mr. Brownell was democratic (with a small “d”) and that the attorney general’s office would become a true Department of Justice under him, in sharp contrast to the conduct of Mr. Truman’s ward heelers. It didn’t take very long for the country to learn that the new attorney general was, above all, a politician, and not on a very high level either. His assaults on essential democratic procedures and policies are even more threatening than anything done under the old administration.

Although the new administration set up procedures which seemed to guarantee certain rights to organizations listed and to be listed, few of them have been carried out. Mr. Brownell is far too busy trying to set up his own telephone company by seeking the passage of a wire tapping bill to be used under his own discretionary powers, to pay much attention to the new procedures under Executive Order 10450.

Under this order a “subversive list” was to be set up but supposedly with this difference: No organizations would, could or should be placed on it without a prior hearing. But Mr. Brownell proceeded to relist every organization, none of which ever had a hearing, from Mr. Truman’s list. In his mind, the important provision of the new order applied only to new organizations which his office might contemplate listing. Precisely what this meant to Mr. Brownell was shown when he publicly convicted the National Lawyers Guild as “subversive” without any hearing whatever.

When the new order was announced, the ISL immediately protested to the attorney general and demanded an immediate hearing. That was in May, 1953. In accordance with the new procedures, the attorney general, for the first time in five years, presented the ISL its statement of grounds and interrogatories (the reasons for the listing) to which the ISL replied in full (See Labor Action for Sept. 3, 1953). The monstrous nature of the grounds and interrogatories brought a number of protests from all quarters, including Norman Thomas, John J. Finerty, Francis Heisler, the Weekly People, The Reading Labor Advocate, and the Socialist Call among others.
 

In submitting its replies in proper form and within the time limits provided for in the new procedures, the ISL renewed its demand for an immediate hearing which was mandatory. No reply was received from the attorney general. This is a chronic bureaucratic disease in Washington. Another letter finally brought a response from Assistant Attorney General Warren Olney III that the request was received; no need to worry, for if and when a hearing would be granted, we would be notified in time to prepare for it? If and when! What about the procedures which stated that upon a reply to the interrogatories the attorney general “will” set a date for a hearing? No reply! And that’s exactly where the matter stands now.

The State Department refuses a passport to Shachtman under the “discretionary powers” of the Secretary of State. The Passport Office “suggests” that we settle our case with the attorney general. And the august and pompous attorney general sits on his royal seat in the Department of Justice office and does not answer mail; he simply does nothing.

On October 29, 1953, the ISL replied to Mr. Olney pointing out that the matter of a hearing was mandatory; that with the reply to the interrogatories, the attorney general must set a date for a hearing. Six months have passed and not one word has been received from the attorney general.

We leave to the philosophers the speculation over the meaning of this situation from the moral and democratic point of view; perhaps they can enlighten us further on the significance of “ends and means.” For, nothing is more conducive to understanding than the process of life itself!

We do know this: the attorney general’s list had its origin as a guide to government employment. It has long since passed far beyond that point to become a national index. That it has no legal standing is quite beside the point. It has all the power it needs without legal standing. The bureaucratic administrative system has operated to avoid a legal test of the listing and the administration, past and present, has achieved its objective just the same.

When in January, 1951, it was pointed out to a Mr. Raymond P. Whearty, then assistant attorney general, that the list has ceased to be a guide to government employment, and that the government itself was responsible for this by its wide publication of the list and by inciting its use in private industry, the professions and the entertainment world, he merely shrugged his shoulders and said: “Well, it is too bad; but that is not what it was intended for!”

We have gone a long way since then. The attorney general’s list still has no legal standing; the attorney general has still zealously avoided a legal test of his action. Yet the list has an incalculable power to do harm to organizations and individuals who have no recourse for legal redress.

The Shachtman passport case is in point. Why should the attorney general’s list, which formally, at least, is an employment guide for the government, be used by the State Department as a guide for the issuance of passports, particularly when the Passport Office does not use Sections 51.135 and 51.136 as its criteria? Nevertheless it is. And it is used everywhere whether or not it has legal standing. The attorney general’s office prefers it that way; it is not required to test its actions legally while at the same time it achieves its purposes nevertheless.

The Shachtman passport case is important not only because it challenges the bureaucratic actions of the State Department Passport Office, but above all, because it will permit the first fight to be made against the attorney general’s list. It needs the widest labor and socialist support.


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