Dayton v. Dulles

• Decision Date: 24 October 1957
• Docket Number: No. 13717.,13717.
• Parties: Weldon Bruce DAYTON, Appellant, v. John Foster DULLES, Secretary of State, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

254 F.2d 71 (1957)

Weldon Bruce DAYTON, Appellant, v. John Foster DULLES, Secretary of State, Appellee.

No. 13717.

United States Court of Appeals District of Columbia Circuit.

Argued June 28, 1957.

Decided October 24, 1957.

Writ of Certiorari Granted January 6, 1958.

Judgment Reversed June 16, 1958.

Mr. Harry I. Rand, Washington, D. C., for appellant.

Mr. B. Jenkins Middleton, Attorney, Department of Justice, with whom Asst. Atty. Gen. George C. Doub, Mr. Oliver Gasch, U. S. Atty., and Mr. Paul A. Sweeney, Attorney, Department of Justice, were on the brief, for appellee.

Mr. Nathan H. David, Washington, D. C., filed a brief on behalf of the Federation of American Scientists, as amicus curiae, urging reversal.

Before PRETTYMAN, WILBUR K. MILLER and FAHY, Circuit Judges.

Writ of Certiorari Granted January 6, 1958. See 78 S.Ct. 343.

Judgment Reversed June 16, 1958. See 78 S.Ct. 1127.

PRETTYMAN, Circuit Judge.

This controversy concerns an application for a passport. It is now here upon a second appeal. Upon the first appeal¹ we applied the rule we had laid down in the Boudin case² and remanded. The Secretary had rested his denial of the passport upon Section 51.135 of his Regulations³ but without specification or findings sufficient to identify the subsection within which he classified Dayton. We held he must make such findings if his denial of the passport was to be sustained. Quoting from Boudin we further said that if the Secretary relied upon confidential information he must explain with such particularity as the circumstances permitted the nature of the reasons why this information might not be disclosed.

Upon the remand the Secretary rendered a Decision and Findings and again denied the passport. Upon representation the District Court granted the Secretary's motion for summary judgment and dismissed the complaint.⁴ This appeal followed.

The decision and findings of the Secretary were divided into six sections. Each of the first four sections dealt with a specific activity of Dayton. They were similar in format. The first section, for example, dealt with his activity in a Science for Victory Committee and his association with two named persons in that organization. The Secretary found, on the open record, that this activity and association existed. Then he found, on the basis of confidential information in the files of the Department, that this Committee had been organized by Communist Party officials as a front for propaganda and espionage activities and that the named persons were Communist Party members. In the second section of his findings the Secretary dealt in precisely similar fashion with Dayton's association and relationship with another named person, "an active member of the Communist Party * * * involved in the espionage apparatus of Julius Rosenberg." In the third section he recited his finding that Dayton was present on more than one occasion in the apartment building in which was the apartment used by 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." In the fourth section the Secretary found "a close association and relationship" with a person who "has engaged in numerous Communist activities both in this country and abroad; and is suspected of being a Communist espionage agent."

In Section V of his findings the Secretary said:

"I have reason to believe, on the balance of all the evidence, that the applicant is going abroad to engage in activities which will advance the Communist movement for the purpose, knowingly and wilfully of advancing that movement. I have reached this conclusion on the basis of the foregoing findings together with the confidential information contained in the files of the Department of State, the disclosure of which might prejudice the conduct of United States foreign relations."

Section VI of the findings is:

"The confidential information referred to in paragraphs I(b), II(b), III(b) and IV(b) above relates to the internal security of the United States. The substance of this confidential information was disclosed to the applicant during the consideration of his passport application. To disclose publicly the sources and details of this information would, in my judgment, 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 relationships 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 conclusion of the Secretary was:

"The passport application of Weldon Bruce Dayton is therefore denied under Section 51.135(c) of the Passport Regulations (22 CFR 51.135(c)), and because the issuance of a passport would be contrary to the national interest."

The validity of the Regulations of the Secretary in respect to passports has been upheld by us in Briehl v. Dulles, decided June 27, 1957.⁵ In the present case the Secretary conformed strictly to the requirements laid down by us in Boudin v. Dulles and upon the original appeal in this case. He made findings and identified the precise provision of the Regulations within which he found Dayton.⁶ He said the substance of the confidential information relied on in Sections I, II, III and IV had been disclosed to Dayton.

The Secretary stated, clearly and succinctly, that he denied the passport because he had reason to believe, partly from the open record and partly from confidential information, that Dayton was going abroad to engage in activities which would advance the Communist movement. The issuance of the passport, said the Secretary, would be contrary to the national interest. Further the Secretary stated, also clearly and succinctly, his confidential information relates to the internal security of the United States and to disclose it would be detrimental to the national interest in respect to internal security and might prejudice our foreign relations.

Thus the case falls into two parts. The first question is whether the grounds stated by the Secretary are sufficient to support the denial of the passport. If it be true that Dayton was going abroad knowingly and wilfully to advance the Communist movement, could the Secretary refuse him a passport? That question was answered fully in Briehl. We there held he could refuse upon that ground.

It is true that the Secretary did not here say in specific terms that he denied the passport because to grant it would be detrimental to internal security or foreign relations. But surely, after all that has been said and done about the Communist movement by this Government, described by us in Briehl, it is obvious that the advance of that movement is detrimental to the internal security of this country and to its foreign relations. Clearly, when the Secretary, having made the finding as to Dayton's purpose, said that issuance of the passport would be contrary to the public interest, he meant the public interest in internal security and in foreign affairs. In the context of the record as it now is, in the light of the finding as to Dayton's purpose, "national interest" clearly means "internal security and foreign affairs". Any difference in meaning between those terms is of no moment here.

The second question is whether the Secretary could base his conclusion in this matter partly upon confidential information. Even if the ground for denial is valid, is the denial valid if the evidence which establishes the ground is confidential? The Secretary stated, as we have pointed out, that disclosure of this information would be detrimental to the national interest in respect to internal security and the conduct of our foreign affairs. Our view is that upon that basis he need not disclose the information but he may act upon it.

The Supreme Court has not passed upon the precise question here before us, i. e., the permissible reliance upon confidential information in a passport case. But we find helpful guideposts in the principles laid down by the Court in different fields. The right to engage in business and the right to enter into contracts are parts of the liberty protected by the Fifth and Fourteenth Amendments. No person can be deprived of those rights except by due process of law. The guiding principle in respect to them is well set out in the West Coast Hotel case.⁷ There the Court had before it a minimum wage act. The attack was that the statute was a deprivation of freedom of contract, a part of the liberty protected by due process of law. "The principle which must control our decision is not in doubt," the Court said. "Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process."⁸ (Italics supplied.) Quoting from its own opinion in Chicago, B. & Quincy R. Co. v. McGuire,⁹ and referring to the freedom of contract, the Court said, "Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community."¹⁰ The Court upheld a limitation upon the freedom of contract, upon the ground that community interest required protection of the health of women and of a relatively helpless class of workers.

In respect to contracts in foreign trade and doing business abroad, the Court has consistently held that the right can be denied by the President upon the basis of confidential information, that he need not disclose that information, and that the courts have no authority to inquire into...