Chapter LXII: Section 215: of the Immigration and Nationality Act provides that, while

a Presidential proclamation of national emergency is in force,

* * * it shall, except as otherwise provided by the President,
* * * be unlawful for any citizen of the United States to
depart from or enter * * * the United States unless he bears a
valid passport.[A15-273]

Because a proclamation of national emergency issued by President Truman during the Korean war had not been revoked by 1963, the Government has taken the position that the statute remains in force.[A15-274] Pursuant to section 215, the State Department has issued regulations setting forth the circumstances under which it will refuse a passport:

In order to promote and safeguard the interests of the United
States, passport facilities, except for direct and immediate
return to the United States, shall be refused to a person when
it appears to the satisfaction of the Secretary of State that
the person’s activity abroad would: (a) violate the laws of
the United States; (b) be prejudicial to the orderly conduct
of foreign relations; or (c) otherwise be prejudicial to the
interests of the United States.[A15-275]

The State Department takes the position that its authority under this regulation is severely limited. In a report submitted to the Commission, the Department concluded that “there were no grounds consonant with the passport regulations to take adverse passport action against Oswald prior to November 22, 1963.”[A15-276] Although Oswald’s statement in 1959 that he would furnish the Russians with information he had obtained in the Marine Corps may have indicated that he would disclose classified information if he possessed any such information, there was no indication in 1963 that he had any valuable information.[A15-277] Moreover, Oswald’s 1959 statement had been brought to the attention of the Department of the Navy[A15-278] and the FBI[A15-279] and neither organization had initiated criminal proceedings. The Department therefore had no basis for concluding that Oswald’s 1959 statement was anything more than rash talk.[A15-280] And the State Department’s files contained no other information which might reasonably have led it to expect that Oswald would violate the laws of the United States when he went abroad.

The most likely ground for denying Oswald a passport in 1963, however, was provided by subsection (c) of the regulation quoted above, which requires the denial of a passport when the Secretary of State is satisfied that the applicant’s “activity abroad would * * * otherwise be prejudicial to the interests of the United States.” In 1957 the State Department described to the Senate Foreign Relations Committee one category of persons to whom it denied passports under this provision:

Persons whose previous conduct abroad has been such as to bring
discredit on the United States and cause difficulty for other
Americans (gave bad checks, left unpaid debts, had difficulties
with police, etc.).[A15-281]

In light of the adverse publicity caused the United States by Oswald’s prior defection to the Soviet Union, he could have been considered a person “whose previous conduct abroad had been such as to bring discredit on the United States.” Indeed, the State Department itself had previously been of the opinion that Oswald’s continued presence in Russia was damaging to the prestige of the United States because of his unstable character and prior criticisms of the United States.[A15-282]

However, in 1958 the Supreme Court had decided two cases which restricted the Secretary of State’s authority to deny passports. In _Kent_ v. _Dulles_[A15-283] and _Dayton_ v. _Dulles_,[A15-284] the Supreme Court invalidated a State Department regulation permitting the denial of passports to Communists and to those “who are going abroad to engage in activities which will advance the Communist movement for the purpose, knowingly and willfully of advancing that movement,” on the ground that the regulation exceeded the authority Congress had granted the Secretary. The _Kent_ opinion stressed the importance to be attached to an individual’s ability to travel beyond the borders of the United States:

The right to travel is a part of the “liberty” of which the
citizen cannot be deprived without due process of law under the
Fifth Amendment * * * Freedom of movement across frontiers in
either direction, and inside frontiers as well, was a part of
our heritage. Travel abroad, like travel within the country,
may be necessary for a livelihood. It may be as close to the
heart of the individual as the choice of what he eats, or
wears, or reads. Freedom of movement is basic in our scheme of
values.[A15-285]

The _Kent_ opinion also suggested that grounds relating to citizenship and allegiance to illegal conduct might be the only two upon which the Department could validly deny a passport application.

The Department, though publicly declaring that these decisions had little effect upon its broadly worded regulation,[A15-286] in practice denied passports only in limited situations. In 1963 the Department denied passports only to those who violated the Department’s travel restrictions, to fugitives from justice, to those involved in using passports fraudulently, and to those engaged in illegal activity abroad or in conduct directly affecting our relations with a particular country.[A15-287] Passports were granted to people who the Department might have anticipated would go abroad to denounce the United States, and to a prior defector.[A15-288] State Department officials believed that in view of the Supreme Court decisions, the Department was not empowered to deny anyone a passport on grounds related to freedom of speech or to political association and beliefs.[A15-289]

Since Oswald’s citizenship was not in question and since there was no indication that he would be involved in illegal activity abroad, the only grounds upon which a passport might have been denied Oswald would have fallen within the area of speech or political belief and association. The Commission therefore concludes that the Department was justified in granting a passport to Oswald on June 25, 1963.

VISIT TO THE RUSSIAN EMBASSY IN MEXICO CITY

In October 1963, the Passport Office of the State Department received a report from the Central Intelligence Agency that Oswald had visited the Soviet Embassy in Mexico City.[A15-290] The report said nothing about Oswald’s having visited the Cuban Embassy in Mexico City, a fact which was not known until after the assassination. Upon receipt of the information the passport file on Lee Harvey Oswald was reviewed by the Passport Office.[A15-291] The CIA communication and the passport file were read by an attorney and a supervisory attorney in that office who found no basis for revoking Oswald’s passport or for notifying the FBI or CIA that Oswald had been issued a new passport in June 1963.[A15-292] The Department has informed the Commission that, “since the report indicated no grounds for determining Oswald was ineligible for a passport, a determination was made that no action by the passport office was required.”[A15-293] Travel to Russia was not proscribed in 1963. Moreover, the Soviet Union was one of the countries Oswald had listed on his passport application. Hence, the Commission agrees that Oswald’s taking steps to enter the Soviet Union in 1963 was not a sufficient reason to revoke his passport.

Later, on November 14, 1963, the FBI sent the Department a report on Oswald’s arrest in New Orleans, La. during August in connection with a fistfight in which he became engaged when passing out pamphlets entitled “Hands Off Cuba.” No action was taken on the basis of the Bureau’s report.[A15-294] The Commission agrees that this incident was not grounds for revoking Oswald’s passport.