Chapter XXV: Section 349: (a) states, "From and after the effective date of this Act, (5)

Mr. DULLES. That is, lookout cards might well be put in in borderline cases, but when you came to consider the case on all the facts, you would decide in favor of issuance of the passport rather than refusal?

Mr. CHAYES. Yes; that is the same thing with the expatriation card which should have been made out for Oswald in 1960. It should have been made out because there was a possibility that he had expatriated himself. But then when he came to apply for the passport, all the lookout card would do is say, "Investigate this carefully and determine this issue."

And as you say, when you got all the facts as in the expatriation situation, you might determine that he had not expatriated himself.

Representative FORD. At least in this case if there had been a lookout card, there would have been a delay.

Mr. CHAYES. Yes.

Representative FORD. That is the very least that would have happened.

Mr. CHAYES. There would have been a delay of a couple of days probably.

Representative FORD. And in this case time might have been important.

Mr. CHAYES. No; if you are talking about this case as it actually happened, time wasn't important at all. He applied for the passport in June of 1963. He got it in June of 1963, and he made no effort to use the passport, nor did he have any occasion to use it, until he died.

Mr. DULLES. It would have been a blessing for us if he had used it, say, in the sense that the assassination might not have taken place, if he had taken the passport and gone to China as he may have contemplated.

Mr. COLEMAN. Mr. Chayes, is it your testimony that when the Department knows a person went abroad in 1959, attempted to defect to the Soviet Union, stated that he had information on radar which he was going to turn over to the Soviet, and the difficulty that we had to get him back, it is your opinion that it would not be prejudicial to the interests of the United States for him to be given a passport to go abroad the second time?

Mr. CHAYES. Well, I think that is correct without knowing any more about what he intended to do this time on his travels abroad.

You have got to remember that the discretion that the Secretary can exercise under 51.136, is as the Supreme Court said in the Kent case, a limited discretion, although it is phrased in very broad terms.

For example, we have people who are going abroad all the time and making the nastiest kinds of speeches about the United States, or who go abroad for political activity that is completely at odds with the policy of the United States, and may be even directed against our policy. But we could not deny a passport on the grounds of political activities, political associations, speech, things of that kind. So the Kent case says, as I read it and as most others do. I think you have to, in order to apply this section, there are some fairly regular categories, fugitives from justice.

Mr. DULLES. Just one question. If there had been a lookout card in, and then you would reconsider the case in June 1963, when he applied, would you not then normally have notified the FBI and the CIA that here was a returned defector?

Mr. CHAYES. No.

Mr. DULLES. Who was going abroad again?

Mr. CHAYES. No; not unless the FBI and the CIA had asked us to notify them. However, what we might have done would be to use FBI facilities to make a further investigation of the situation. That is possible.

Mr. COLEMAN. Mr. Chayes informed us prior to the commencement of his testimony that he would have to leave at 4 p.m., but would return tomorrow morning to complete it. He will now be excused. Thank you, sir.

Mr. DULLES. Thank you very much.

TESTIMONY OF JOHN A. McVICKAR RESUMED

Mr. COLEMAN. Do you recall, Mr. McVickar, we were trying to determine whether Mrs. Oswald came into the Embassy in July or in August 1961, and you said that if you had an opportunity to look at the State Department file that you might find something which would aid you in recollecting.

Have you had such opportunity.

Mr. McVICKAR. Yes; I have. I observe two items in here. There is a despatch prepared by Mr. Snyder which says that Mrs. Oswald was expected to come in very shortly. This despatch was prepared I believe on the same day that Mr. Oswald was in the office.

Mr. COLEMAN. Is that despatch dated July 11, 1961?

Mr. McVICKAR. Yes.

Mr. COLEMAN. The record shows it is Commission Exhibit No. 935.

Mr. McVICKAR. And the item is on page 2, and it says, "He is attempting to arrange for his wife to join him in Moscow so she can appear at the Embassy for a visa interview in the next day or two."

And then there is a later despatch dated October 12, 1961, which encloses the text of certain letters addressed to the Embassy by Oswald, and one of them is a letter dated July 15, 1961.

Mr. DULLES. Moscow?

Mr. McVICKAR. No; apparently from Minsk after he had returned.

Mr. DULLES. Oh, Minsk.

Mr. McVICKAR. And it says that; "While we were still in Moscow the foreman at her place of work was notified that she and I went to the Embassy for the purpose of visas."

Well now, it seems clear that she did in fact go to the Embassy in early July, and that this interview that I had with her undoubtedly took place then approximately the 12th or 13th of July.

Mr. COLEMAN. Wouldn't you say that it took place, sir, on the 11th of July?

Mr. McVICKAR. It probably took place then on the 11th of July, except that this despatch here, which was dated the 11th, said that she was coming in, in the next couple of days.

No, no; this says that he appeared at the Embassy on July 8, and so this was probably prepared on the 8th of July.

I would say then it must have taken place on the 11th of July.

Mr. COLEMAN. It is your testimony, therefore, that Commission Exhibit No. 959, which is the petition to classify status of alien for issuance of immigrant visa, was prepared on July 11, 1961?

Mr. McVICKAR. Oh, yes; that is correct.

Mr. COLEMAN. That was probably the day that Marina came into the Embassy?

Mr. McVICKAR. Probably the day she came into the Embassy, and probably the day on which I interviewed her.

Mr. COLEMAN. And, therefore, the notes, Commission Exhibit No. 945, were apparently made on July 11?

Mr. McVICKAR. Yes; apparently made then on July 11. They formed the basis of this later communication of August 28, and I now think that the reason that this was not done sooner, was because it was not an urgent matter, because they had not yet received exit visas, and we were in the process of processing cases that had received exit visas, and were ready to go, and no one could tell when they might get Soviet exit visas.

Mr. DULLES. Which is the chicken and which is the egg here? I mean, do you get your exit visas before you know whether you are going to get into the country of destination, or do you get your permission to go to the United States before you get your exit visa?

Mr. McVICKAR. In an ordinary country you would apply for your American visa, and then apply for your exit visa, or permission to depart from the country, after you had your American visa.

But in this case, in the Soviet Union, it was reversed because it was so difficult to get exit visas.

The American Government never bothered with any of its papers other than to just take record of the interest of the people, until after they had received permission to depart from the Soviet Union at which point we processed their papers expeditiously.

But usually there was very little done in the American documentation until after they had received an exit visa from the Soviet Union.

Mr. COLEMAN. Sir, you then on August 28, 1961, prepared the Operations Memorandum which has been given Commission Exhibit No. 944; is that correct?

Mr. McVICKAR. Yes; that was the date of the memorandum.

Mr. COLEMAN. Now in that memorandum you indicated that Marina had been in to see you; is that correct?

Mr. McVICKAR. The memorandum does not specifically state that. It merely gives data necessary to the determination by the Department of State of the legal status of this individual.

Mr. COLEMAN. Now as the wife of an American citizen, I take it Marina would have the right to come into the country under a nonquota status?

Mr. McVICKAR. Yes; that is correct.

Mr. COLEMAN. What were the sanctions imposed by section 243(g), which you referred to in the memorandum?

Mr. McVICKAR. There is a provision 243(g), section 243(g) of the Immigration and Nationality Act, which provides that countries which--and I am just taking this from memory now--which do not accept either at all or readily, I suppose, deportees from the United States may not be granted, the nationals of those countries may not be granted immigration visas.

There is, however, a procedure for waiving these sanctions in individual cases, and as I recall the regulations, there was a procedure for waiving these sanctions in the cases of relatives of American citizens, and in the case of Soviet citizens who wanted to go to the United States.

So Soviet citizens who were relatives of American citizens could receive a waiver of these sanctions.

Is that clear?

Mr. COLEMAN. If the sanctions had not been waived, what would be the effect of refusing to waive the sanctions?

Mr. McVICKAR. If the sanction was not waived, the effect would be a denial, in effect, by the Immigration and Naturalization Service of the Department of Justice, of authority to issue the visa.

The exact legality of this I am not sure, but I know that we couldn't issue the immigration visa because she would not be admitted at the port of entry.

Mr. COLEMAN. Would that mean that Marina could not have come to the United States?

Mr. McVICKAR. It would mean that she could not enter the United States, but it would not mean that she could not depart from the Soviet Union if she had a Soviet visa. And, presumably, maybe at some later time this----

Mr. COLEMAN. Couldn't she have gone to say, Brussels, for example, in Belgium?

Mr. McVICKAR. And then applied for a visa there? This may be.

Mr. COLEMAN. Did you have any discussions when you were in the Embassy as to whether if the sanctions imposed by section 243(g) were not waived, that you should send her to Brussels and let her get a visa there?

Mr. McVICKAR. I think that the record shows that there were such discussions, but they did not take place during the time I was there.

Mr. COLEMAN. When did you leave?

Mr. McVICKAR. I left on September the 1st of 1961.

Mr. COLEMAN. In this memorandum which is Commission Exhibit No. 944, you indicated that you thought a favorable advisory opinion and approval of the petition is recommended, together with a waiver of the sanctions.

Mr. McVICKAR. Imposed by section 243(g) of the act, yes. This was a routine request which would have been made in any similar case using almost exactly that type of language.

In short, this was the two actions that we had to receive from Washington in order to be in a position to issue this visa.

Mr. COLEMAN. The first action to get the petition granted, that depended upon whether she was ineligible, because she belonged to a Communist organization, didn't it?

Mr. McVICKAR. Yes; that is exactly right.

Mr. COLEMAN. As to that in your memorandum you indicated that since she belonged to the Soviet trade union for medical workers, because she had to belong to that to get a job, that you would recommend that the membership be considered involuntary.

Mr. McVICKAR. Yes.

Mr. COLEMAN. Under section 212(A)(28)(i) of the act?

Mr. McVICKAR. Yes; that is correct.

Mr. COLEMAN. Is it the general practice to indicate that such membership is involuntary when it is connected with employment?

Mr. McVICKAR. Yes; there are instructions from the Department giving guidance to officers in general terms, that indicate that membership in mass organizations, such as a membership in a trade union, in connection with one's work, that this membership is ordinarily considered to be involuntary, may be considered involuntary.

However, the instructions are also that all of these cases must be referred to Washington with the facts for a determination to be made, and, of course, it might well be that under some unusual circumstances if there was some indication of voluntariness, that, you know, such a membership would render the person excludable.

Mr. COLEMAN. Now you referred to Department instructions. Are those instructions found in the confidential appendix, appendix A to the visa regulations of the Department in 22 CFR 42.91A28 note 3, last issued on December 9, 1960?

Mr. McVICKAR. Yes; I believe so.

Mr. COLEMAN. Would you be kind enough to read into the record the instruction referred to?

Mr. McVICKAR. I am reading here from the Department of State's report to the Commission, and it cites the text of that. Do you wish me to read it over?

Mr. COLEMAN. Yes.

Mr. McVICKAR. All right, it says this looks like it is "Note 3.3. Membership in mass organizations rank and file membership in proscribed mass organizations, in Communist and Communist controlled countries may in general, if police repression or political or economic discrimination is or was the coercive factor bringing about such membership, be considered involuntary within the meaning of section 212(a)28I(i) of the act unless the alien actively participated in the organization's activities or joined or remained connected with it because of political or ideological conviction. When an alien is refused a visa because of voluntary membership in a proscribed organization of this type the report submitted to the Department pursuant to appendix A22 CFR 42.13 on note 1 should show the circumstances leading to the decision."

I should note that the text of that is confidential, as a part of confidential appendix A.

Mr. COLEMAN. After you interviewed Marina and took the facts, that you determined that her membership in the Soviet Trade Union for Medical Workers was involuntary?

Mr. McVICKAR. It appeared to be involuntary.

Mr. COLEMAN. Suppose Marina had told you that she was a member of the Komsomol, what would you have done then?

Mr. McVICKAR. That comes under a more complicated type of instruction. The membership in the Komsomol may be found to be involuntary and is on occasion found involuntary. But you have to investigate more carefully under the regulations into the nature of the membership, because whereas if a person is a member, works in a factory, everybody in the factory belongs to the trade union.

But if you are going to the university, not everybody is a member of the Komsomol, although a high percentage of them are.

If you are going to say high school, why their membership in the Komsomol is even more in the nature of a minority, and so I had experience in this same matter considering visas for a number of different wives of American citizens, and when the Komsomol was involved, why the results varied considerably.

In some cases it was found that membership in the Komsomol was completely routine and merely because the people really were hoping to get a decent education and a good job and didn't participate in it actively.

In another case I recall, particularly a girl who had been one of the leaders in the Komsomol, and this was clearly beyond the definition of involuntary, and this was part of, was a consideration which entered into the denial of her visa in Washington.

Representative FORD. In that case, the latter one, there was a denial?

Mr. McVICKAR. There was a denial, yes, but this was because--and it is a difficult thing to be in a position to say that somebody's wife shouldn't go with him to the States, but this was the law and the question was looked into with a great deal of detail, and based largely upon this particular other person's statements in a number of interviews, why it is clear, the facts.

Mr. COLEMAN. Sir, after the memorandum of August 28, 1961, which is Commission Exhibit No. 944, did you have anything else to do with Lee Oswald or his wife Marina?

Mr. McVICKAR. No; I don't think so, because I left almost immediately afterward, and I had nothing more to do with the case.

Mr. COLEMAN. When you made the decision: (1) That Marina's petition for immigration should be granted, and (2) recommended that there should be a waiver of the sanction provided by section 243(g), did anyone tell you or request that you make this decision?

Mr. McVICKAR. Now one thing. I want to be sure we are accurate on my function. I was merely recommending these things. I was not making a decision. I was recommending a favorable advisory opinion from the security point of view from the Department of State. I was recommending the approval of the visa petition to grant her the status under the quota system of the wife of an American citizen, and I was recommending that the immigration service waive the sanctions imposed by 243(g), principally because she was the wife of an American citizen.

But this was my responsibility to make these recommendations, and I did so of my own free will as the officer-in-charge of this particular aspect of the case.

Mr. COLEMAN. No one called you and asked you to do it?

Mr. McVICKAR. No, no; it was my responsibility to look into the matter and make the recommendation and I did.

Mr. COLEMAN. And did you have any other facts in your possession or in your knowledge other than those which were set forth in the memorandum dated August 28, 1961, concerning whether Marina was eligible for admission as a nonquota immigrant?

Mr. McVICKAR. No; as far as I know the facts are as stated right there, and these facts were obtained from here on the basis of an interview with her, a personal interview.

Mr. COLEMAN. I have no other questions.

Representative FORD. Mr. McVickar, in your memorandum dated April 7, 1964, in the first paragraph you say: "Although I now regret that I made no notes on this even then unusual case, the following points seem to me to lend weight to my suggestion especially considering the youth and relative inexperience of the subject."

Was the Oswald case in October of 1959 a then unusual case?

Mr. McVICKAR. Yes; because we had had only a few people in the category of defectors, and at that point I think we might have had--this was the third one that had come up since I had been there, and the other two were much less aggressive, much less determined, and much less self-possessed people.

One of them turned out to be suffering from various mental diseases, and another one was a very weak individual who had been sort of lead astray by some Russian female agent, but this was a man who had, you know, he came directly and walked in, slammed his passport down. It was an unusual case from the very beginning.

Representative FORD. In the next paragraph you discuss in this memorandum the entry of Oswald into the Soviet Union through Helsinki. Is there any other port of entry into the Soviet Union that is comparable to Helsinki in the context you are using it here?

Mr. McVICKAR. Well, yes; there are a number of other ways to get into the Soviet Union. I would think by far the most used one is to arrive at the airport in Moscow. And then frequently used by people who have not very much means, would be to come by rail from Western Europe by way of Warsaw and the port of entry in that case is Brest. One could also come by sea into Odessa. It would not be unusual to arrive by air in Leningrad.

Representative FORD. But in this memorandum in that paragraph you say, "He would have to have known the not too obvious fact that Helsinki is an unusual and relatively uncomplicated point of entry to the Soviet Union (one that the Soviets might well choose, for example, if arranging the passage themselves)."

Mr. McVICKAR. Yes.

Representative FORD. Is there any other port such as Helsinki, in the context you are using it?

Mr. McVICKAR. I am sorry, I hope I haven't confused the record. Of course, when you are actually talking about a port of entry, Helsinki is not a port of entry. It is a point of departure for the Soviet Union, and you could come in and land at the Moscow airport from Helsinki.

What I think--what I was referring to is a point of departure for the Soviet Union which would then be more likely to be Copenhagen, for example, or Warsaw or Vienna. Helsinki is a frequently used one, but it is way up north and it is----

Mr. DULLES. Wasn't he traveling by boat, however?

Mr. McVICKAR. He traveled by boat to Helsinki.

Mr. DULLES. That is where the boat went?

Mr. McVICKAR. That is right.

Mr. COLEMAN. No; he traveled by boat to Le Havre, France. He then went by boat from there to London but then he flew by plane from London to Helsinki.

Mr. DULLES. He did? He went by plane?

Mr. McVICKAR. I didn't realize that. But he flew from London to Helsinki and then entered the Soviet Union from Helsinki.

Mr. COLEMAN. By rail?

Mr. McVICKAR. By rail.

Representative FORD. What is so unusual and relatively uncomplicated about Helsinki as a point of entry?

Mr. McVICKAR. Well, I was thinking of this in the terms of a person who didn't know the situation and wasn't very familiar with it, and I think that it might be more logical to try to fly into the Soviet Union from Copenhagen or directly from London.

It might be more logical for some people to take the train into the Soviet Union through Warsaw.

Mr. DULLES. Where did he get his visa?

Mr. McVICKAR. He got his visa in Helsinki.

Mr. DULLES. That is it then. I think that is the answer to the thing. It is much easier to get a visa right there than go through the mill of a great place like London or Paris or any of the other places.

Representative FORD. So it is the ease of getting the visa.

Mr. DULLES. I would think the ease of getting a visa there. If you could get it at all, you could get somebody to pay some attention to you. There, in London, you would have a much bigger problem, I think.

Mr. McVICKAR. And it may be that the Soviet Embassy in Helsinki is accustomed to processing unusual cases or something. But my point is that if a completely ignorant person might well apply for his visa in Paris or in London, and then go in from there, but you have to know a little bit about what you are doing if you go straight to Helsinki and get your visa there. I am afraid this is a rather marginal point, but I thought it was worth mentioning.

Mr. DULLES. Had he made any attempt to get a visa or to announce that he was going to try to pick up a visa in Helsinki? Do you know if he took any steps at all with the Soviet authorities prior to arriving in Helsinki?

Mr. McVICKAR. This I do not know what is known about that. It did seem to me that he moved very quickly, if he could arrive in Helsinki and then get his visa and go right into the Soviet Union.

Mr. COLEMAN. Sir, the fact that he didn't go by ship from New Orleans to Helsinki but he went to Le Havre by boat and then to London but then flew to Helsinki, doesn't that change somewhat the thrust of your paragraph?

Mr. McVICKAR. Yes; I must say that it explains a little bit more clearly how he was able to get all this done in such a relatively short time, because he would have saved himself, oh, at least a week of time, I should think, if he got off in France and flew from there on.

Mr. DULLES. Can any ordinary tourist, unknown tourist, just go to Helsinki and get a visa there and pick it up and get into Russia?

Mr. McVICKAR. Yes; I think an ordinary tourist can go to any one of their Embassies and get a visa.

Mr. DULLES. Do they have authority, do you know, to do that without referring back to Moscow?

Mr. McVICKAR. Yes; for tourist visas they do, and in fact they can go and get their visas at travel agencies. But it still takes a little time ordinarily to arrange it.

Representative FORD. On page 3 of your memorandum of April 7, 1964, paragraph 8, you say:

"My impression was that in the Soviet Union such a privilege would not have been usual."

You are referring, of course, to the allegations made that he had been a member of a rifle club and did target shooting?

Mr. McVICKAR. Yes.

Representative FORD. Why do you have that impression?

Mr. McVICKAR. Well, I was thinking particularly in terms of his having been a foreigner, and of course strictly on the assumption that he did belong to a rifle club, and I don't know that to be a fact.

Representative FORD. Let's assume the fact that he did.

Mr. McVICKAR. Yes; and this again is only based on the impression that I gathered from such contacts as I may have had while I was there, and I had the impression that sporting activities in the Soviet Union are organized as a part of the state effort, and that there might have to be some good purpose to be served by the state for a person to participate in such a club.

And that the usual purpose would be international competition, and that people who are sportsmen in the Soviet Union generally do this, they are given time off from their work to do this kind of thing.

I have heard it said that sometimes they are really almost full time engaged in whatever the sport is, and that they only have another job to be able to say that they have amateur status.

Representative FORD. Have you ever been to Minsk?

Mr. McVICKAR. I have only passed through Minsk on the train several times going back and forth to Poland.

Representative FORD. Do you feel from your experiences in the Soviet Union it was unusual for Oswald to be sent or permitted to go to Minsk?

Mr. McVICKAR. No; I don't think that is particularly unusual. I have a feeling that what they were trying to do probably was, at least a part of what they were trying to do, was to take advantage of his competence and knowledge in the electronic field, and so they probably sent him to a place where they would have technicians qualified to learn from him.

The same thing was done in the case of the immediately previous defector, Mr. Webster, who was a glass expert--what do they call that kind of glass, foam glass?

No, fiber glass. At any rate, he was employed at the fair that we had in the Soviet Union in the summer of 1959, and he more or less defected and he was sent to a glass factory, to work at a glass factory in Leningrad, and it was logical for them to send him there because he could do that kind of work and he could teach them something about how it was done in the United States.

Representative FORD. Do you know of any special kind of schools that might be in Minsk, any particular schools that they might send a person like Oswald to?

Mr. McVICKAR. I only had the impression without being sure of my facts, that he went to a factory where they manufactured electronic equipment. I don't know of any particular school that he might have been going to.

Mr. DULLES. I want to straighten out if I can this question of the delay in the issuance of an exit visa for Mrs. Oswald.

Representative FORD. Mr. Dulles, I do have to leave. Would you take over and preside as chairman.

Mr. DULLES. I want to raise this question. Now the record here in this memorandum indicates that the exit visa to Marina was issued at least 2 months before the State Department gave the entry permit. It seems to me to be contrary to the testimony we have previously had, because in a letter dated March 16--what is this exhibit number?

Mr. COLEMAN. That is Commission Document No. 2. It hasn't been marked as an exhibit yet.

Mr. DULLES. Oh, it has not been marked. I don't understand what that number can be.

Mr. COLEMAN. That is the number, Commission Document No. 2.

Mr. DULLES. Commission Document No. 2 prepared by the State Department. It is stated here that on March 16th the Soviet Affairs Office of the State Department advised the Visa Office of the Department of State, and in that it said that the Soviet had already issued an exit visa. So Marina had the exit visa some time before March 16, 1962.

Do you know the date when the exit visa was granted?

Mr. McVICKAR. Well, sir, I left in September of 1961, and so I don't know the details of this part of the case, but I think it is consistent because--in fact, I did see in the record that the exit visa was received by the Embassy on about January the 12th, as I recall it.

Mr. COLEMAN. 1962?

Mr. McVICKAR. Of 1962, and that, therefore, the Embassy would then have proceeded with the documentation and the processing, some of which had already been initiated to get them out.

Mr. DULLES. So that 5 months of the delay in their getting out was American regulations?

Mr. McVICKAR. Sir, I cannot speak for that part of it because I don't know about that personally. I think it is possible that it may have had something to do with Oswald's personal arrangements and that sort of thing, or maybe the Soviet--I just don't know. I do know that it was our policy to expedite these operations as quickly as possible after these exit visas took place.

Mr. DULLES. I only know that this exhibit that I referred to states, if I can take your date of January 12, 1962, for the date that the exit visa was issued to Mrs. Oswald, the Immigration and Naturalization Service did not agree to the waiver of section 243 (g) until May 9, 1962.

Mr. McVICKAR. That would have been something that had been going on in Washington then, and I just don't know. It may be. I don't know what considerations would have taken place.

Mr. DULLES. So that if we take the time it took them to get their exit visas, you have got to subtract really 5 months for American regulations.

I am not criticizing the regulations or the study that was given to it or whether they did or did not grant it. I am just referring to the question of the time, so that in considering the remarkably short time it took these two to get out, 5 months were American regulations, or approximately 5 months, if the January 12 date is correct. No; it would be 4 months, wouldn't it, February, March, April, May, 4 months were American regulations.

Mr. McVICKAR. It does look as though at that time there was a certain amount of consideration.

Mr. DULLES. I am not blaming anyone for giving this the fullest possible consideration. That is all I have.

Representative FORD. Do you have some exhibits?

Mr. COLEMAN. For the record, Commission Exhibit No. 911 which is the McVickar memorandum of November 17, 1959.

Representative FORD. It may be admitted.

(The document referred to, previously marked as Commission Exhibit No. 911 for identification, was received in evidence.)

Mr. COLEMAN. Commission Exhibit No. 941, which is the McVickar memorandum of November 27, 1963.

Representative FORD. It may be admitted.

(The document referred to, previously marked as Commission Exhibit No. 941 for identification, was received in evidence.)

Mr. COLEMAN. Commission Exhibit No. 942, which is the note which Mr. McVickar wrote for the Oswald file on November 9, 1959.

Representative FORD. It may be admitted.

(The document referred to, previously marked as Commission Exhibit No. 942 for identification, was received in evidence.)

Mr. COLEMAN. Commission Exhibit No. 943, which is a copy of the telegram from John E. Pic to Lee Oswald in care of the American Embassy in Moscow.

Representative FORD. It may be admitted.

(The document referred to, previously marked as Commission Exhibit No. 943 for identification, was received in evidence.)

Mr. COLEMAN. Commission Exhibit No. 944, which is the Operations Memorandum, dated August 28, 1961.

Representative FORD. It may be admitted.

(The document referred to, previously marked as Commission Exhibit No. 944 for identification, was received in evidence.)

Mr. COLEMAN. Commission Exhibit No. 945, which is a photostatic copy of the handwritten notes which Mr. McVickar made when he interviewed Marina Oswald in the Embassy on July 10 or July 11, 1961.

Representative FORD. It may be admitted.

(The document referred to, previously marked as Commission Exhibit No. 945 for identification, was received in evidence.)

Mr. COLEMAN. Commission Exhibit No. 959, which is a copy of the petition to classify status of alien for issuance of immigrant visa filled out by Lee Oswald on behalf of Marina Oswald in July 1961.

Representative FORD. It may be admitted.

(The document referred to, previously marked as Commission Exhibit No. 959 for identification, was received in evidence.)

Mr. COLEMAN. And also Commission Exhibit No. 958, which is the memorandum of Mr. McVickar, dated April 7, 1964.

Representative FORD. It may be admitted.

(The document referred to, previously marked as Commission Exhibit No. 958 for identification, was received in evidence.)

Representative FORD. Are we going to admit as exhibits this State Department answer?

Mr. COLEMAN. Yes; I thought when we finished with Mr. Chayes then we will offer all the exhibits, and during that time I was going to identify the State Department earlier memorandum and the other documents.

Mr. DULLES. All this will then go in.

Mr. COLEMAN. Oh, yes; that is all going in.

Representative FORD. I think it is well to get that one document paraphrased, but I think from what Mr. Chayes said the other one, there shouldn't be any problem.

Unless there is something else the Commission will recess until 9 o'clock tomorrow morning.

(Whereupon, at 6:20 p.m., the President's Commission recessed.)

_Wednesday, June 10, 1964_

TESTIMONY OF ABRAM CHAYES, BERNICE WATERMAN, HON. DEAN RUSK, SECRETARY OF STATE, AND FRANCES G. KNIGHT

The President's Commission met at 9:10 a.m., on June 10, 1964, at 200 Maryland Avenue NE., Washington, D.C.

Present were Chief Justice Earl Warren, Chairman; Senator John Sherman Cooper, Representative Gerald Ford, and Allen W. Dulles, members.

Also present were J. Lee Rankin, general counsel; William T. Coleman, Jr., assistant counsel; W. David Slawson, assistant counsel; Thomas Ehrlich, special assistant, Department of State; Leon Jaworski, special counsel to the attorney general of Texas; Robert D. Johnson, Legal Department, Passport Division, Department of State; and Charles Murray, observer.

TESTIMONY OF ABRAM CHAYES RESUMED

The CHAIRMAN. The Commission will come to order. Mr. Chayes is on the stand. Mr. Coleman, you may continue the examination.

Mr. COLEMAN. Mr. Chayes, at the adjournment of your testimony yesterday, we were talking about section 51.136, State Department regulations dealing with the issuance of passports.

Mr. CHAYES. Yes; Mr. Coleman.

Mr. COLEMAN. Could you tell us the circumstances in which the State Department feels it can refuse a passport based upon the regulations?

Mr. CHAYES. Yes; there are some fairly regular categories of refusals under that section. The first is a violation of a travel restriction. As you know, the section has from time to time placed certain areas out of bounds for travel by U.S. citizens without a specially validated passport.

I think, yesterday, Mr. Dulles read into the record, from the Oswald passport, the then applicable area restrictions. And if a person having a passport violates these restrictions, let's say travels to Communist China without a specifically validated passport, we regard that as warranting the withdrawal of the passport under section 51.136.

Now I have to say that I think in one case, the case of William Worthy, a withdrawal of a passport under those circumstances was sustained. However, when he later traveled without a passport, and then reentered the country without a passport, which is a violation of the passport laws as they read on the books, he was indicted and prosecuted in the district court, convicted, and on appeal the conviction was reversed on the ground that it was unconstitutional to make reentry, without a passport, an offense. That case has not been appealed to the Supreme Court.

Mr. COLEMAN. Is that the case that was in the Fifth Circuit?

Mr. CHAYES. I think so.

Mr. COLEMAN. It came up from the Federal District Court in Florida?

Mr. CHAYES. New Orleans, it came up from New Orleans.

Mr. DULLES. This applies to American citizens of course?

Mr. CHAYES. American citizens. Only American citizens can get passports. When we are dealing with aliens, we are in the visa area.

Mr. DULLES. Yes.

Mr. CHAYES. Now the travel restrictions, the area restrictions are under attack in a number of other cases, that come up in different procedural ways. But we have in the past, and will continue to do so until we are told otherwise, withdrawn passports under 51.136 from people who have violated travel restrictions.

The next category is fugitives from justice. There if a person is under indictment or even if there is a warrant for his arrest, certainly if he has been convicted, we will not issue a passport to him to permit him to depart. In the Kent case, the Supreme Court recognized this as one of the well-defined categories in which the Secretary's discretion to withhold a passport was confirmed by practice and experience.

As I say, the fugitive from justice category is one that operates on the whole within the United States. If a man is abroad and is indicted, we will not ordinarily withdraw his passport abroad or mark his passport good only for direct return to the United States. We never articulated the rationale for that, but essentially it doesn't really fall within our notion of (a), (b), or (c) of 51.136, and our motion is that the remedy against persons abroad who are charged with crime is extradition rather than the use of the passport power to get them returned.

Now, a third category is passport fraud, where someone has in fact acted in one way or another to make fraudulent use of the passport itself. We have withdrawn passports under those circumstances.

Then there is a miscellaneous category, which doesn't include too many. For instance, in one case a man was convicted in the Federal Republic of Germany for attempting to acquire knowledge of state secrets. Another man had been involved in a number of fraudulent schemes in various countries, issued worthless checks. He was arrested in Australia for fraud and subsequently convicted and sentenced to jail there.

Another one paid for his passport renewal with a worthless check. That in itself is perhaps in the passport fraud category. Left the United States paying for his passage with a worthless check. He represented himself to be an employee of the U.S. Government on leave and continued to put out worthless checks, using his passport for identification. We have summarized these actions under these categories in a letter which I sent to Mr. Rankin, on June 6. It contains a list of the actions in these categories in the years 1962-64--through March of 1964.

Mr. COLEMAN. Can the record note that the original of that letter has been given Commission Exhibit No. 949?

Mr. CHAYES. Very good. Now it should be said that there is one category here that does not appear in the list that we have attached to the letter, although it is explained in a paragraph, the third paragraph of the letter, and that is in fact the category that Oswald himself was in, in 1961, when he wanted to come back. That is where there is a person abroad who is in some kind of trouble at the time, or who is anxious to leave where he is and come right back to the United States, as Oswald did.

We issue a passport as the regulation says, for direct and immediate return to the United States. And that action is taken under section 136. But since it is taken abroad, heretofore there has been no central list of the actions of that kind in the Department's files. As a result of the Commission's inquiry a list is being maintained from here on out, but it is not possible without going through a million passport files, to find when action of that kind was taken in the past. I know of a number of cases of my own knowledge where this happened.

For example, one or two, a man and his wife, of the students who went to Cuba last year went on to Morocco, and got into trouble with the Moroccan police and so on, and we marked their passport for immediate return. I am told that the names of those two students are listed under category (a), in 1963 on the list. Their passports were withdrawn because they had violated the travel restrictions, but also, for most of the students we didn't do anything about the passports until they got back to the United States when we withdrew them, but in their particular case, because they got in trouble with the Moroccan authorities and were pretty obstreperous about it, we marked their passport good only for direct and immediate return.

Another case that I remember, in my own experience, was a case of a notorious gun runner in the Congo, who was running guns to the Katangese rebels during the Congo operation, and he was apprehended by the Congolese authorities. We didn't want him to be tried, and the Congolese didn't want to try him if we didn't want him to be tried. On the other hand they didn't want him around there either.

So we marked his passport good for direct and immediate return. In other words, those cases are cases where you can find either some form of trouble which makes the applicant, the passport holder want to go directly home, and us want to make him go directly home, or some very immediate and direct relation to our relations with that particular country. And as I said yesterday, we have taken the view that it can never be done solely, because of political activities or political associations or the exercise of speech. It has to be something beyond that.

Mr. COLEMAN. I take it that judgment is effected in part by the holding of the Supreme Court in the _Kent_ v. _Dulles_ case.

Mr. CHAYES. Yes; it derives from that. The Kent case said that the Secretary was not entitled without statutory authorization, at least as we have read the case, was not entitled in the absence of statute, to withhold a passport on grounds related to political association and beliefs.

Mr. COLEMAN. Yesterday you testified that you had reviewed all of the State Department files dealing with Oswald, and you paid attention to those files as they existed as of June 1963, and that it was your judgment that the Passport Office could not have refused to issue a passport to Oswald in June 1963.

Mr. CHAYES. It is my judgment that the passport was properly issued in June of 1963; yes, sir.

Mr. COLEMAN. You know that in October 1963, the Passport Office received information that Mr. Oswald had been at the Russian Embassy in Mexico. Would that information have changed the result at all, in your judgment?

Mr. CHAYES. No, sir; that information by itself could not have affected the result. As a matter of fact, as you know, the passport application itself indicated that Oswald wanted to travel to Russia, and the mere fact that he had gone to the Russian Embassy in Mexico, would not of itself have been a disqualifying event.

Representative FORD. Even despite the past history?

Mr. CHAYES. I think that is correct. In other words, by itself it doesn't disqualify the applicant because there is no suggestion here that even--first of all could I review the message that came in on October 16, to the Department. I think I may have it in my own document here.

(Discussion off the record.)

Mr. CHAYES. All that is suggested here is that he was in the Embassy and he contacted the Soviet Embassy about a telegram which had been sent. Now, there is nothing from that, I don't think, that adds anything or permits us to infer in any way that his travel abroad would be inimical to the foreign policy of the United States or otherwise harmful to the national interest, or that he was going abroad to violate U.S. law.

I think this can be said, and I don't think it should be said in criticism of the people who made the decision at the time, because I think the decision at the time and on the basis of our procedures and on the basis of our experience was proper.

Mr. DULLES. May I ask at that point----

The CHAIRMAN. May he finish? He hadn't finished that statement.

Mr. CHAYES. I was going to say looking at it in retrospect and knowing what we now know, it seems to me it would have been desirable to have had some means for triggering off a further investigation of this kind, of a passport applicant, or a passport holder, on the basis of that kind of information. If the further investigation had turned nothing else up, it seems to me clear that he was entitled to a passport on the state of the file as it then existed.

The only issue is whether the state of the file showed enough to start or to instigate a further investigation of the purpose and plans for his travel abroad. What you could have done is hard to speculate about. You might have called him in and asked him about his travel plans. You might have made inquiries among friends and relatives about his plans, and so on, and that might have turned up evidence that would have suggested that his proposed travel abroad fell within one of these categories and it would have warranted the withdrawal of his passport.

Because of our review of these procedures, in the light of what happened, as we said yesterday, we now have established a defector category in the lookout card file, and people of this kind who apply for passports now won't get them routinely, even though the state of the file as it then exists would warrant the issuance of a passport. But there will be a review of the file and any necessary further or any indicated further investigatory steps, if a defector does apply for a passport. You say why didn't you have those procedures before?

Why did it take this kind of a thing to do it? To stimulate a new procedure? The answer is simply that nothing in our past experience at all suggested anything like this kind of trouble. Of course the ultimate result, the ultimate assassination wasn't related in any way to the passport decisions. But it has drawn our attention more closely to the problem of defectors in this connection.

I should add one general point, and that is when we talk about passports in this context, we tend to emphasize the very, very few bad apples of one kind or another, and they are very few, who are not entitled to passports. But the fact is that the function of the Passport Office is not to deny passports to people. It is to get passports to people. The Passport Office puts out 1 million passports a year. The great overwhelming majority of those people are ordinary American citizens who want to get abroad for business or pleasure, and the ability of the Passport Office to furnish them with passport facilities, in very short order, is of tremendous service, and tremendous convenience to them.

That is the primary function of the Passport Office. It has of course the duty of administering these denial and withdrawal statutes. But that is not its primary function. Its primary function is to get passport facilities to the great bulk of Americans who have legitimate business abroad. It is dealing with a million or more applications a year, and millions of bits of information, like this piece we have just been talking about. I think when you see things in that perspective it is perhaps easier to evaluate some of the decisions and some of the actions taken here.

Representative FORD. But I think you have to turn the coin over. There are millions of passport applications, or a million plus. But there are only very few such as Mr. Oswald, or people in the defector category. So the problem there I don't think is as serious an administrative one as you would tend to imply.

Mr. CHAYES. No; I am not suggesting it is, and in fact I think we have by a relatively simple administrative action taken the steps which will assure that in the future applications from this kind of person will receive a more elaborate review.

All I am saying is that if you ask why that wasn't done before, it is because the experience didn't indicate that there was a problem, and that is because that isn't the main business of the Passport Office. Its main business is not the business of a security agency which goes around focusing or is supposed to be focusing on security problems. Its main business is that of a processing agency.

Representative FORD. But we have vast resources of people in the Government who are, or who do have security as a main business, and it seems to me that it is vitally important that those people and those vast resources somehow tie into the administrative process of denying or refusing passports under unique circumstances.

Mr. CHAYES. They do. That is any of those agencies can levy a request on the Passport Office for notification when a passport is issued to any person. If the FBI or the CIA or the Secret Service or any other security or law enforcement agency is interested, or the U.S. court, the Federal district court or the district attorney's office, any agency of that kind which is interested in knowing whether a particular person has applied for passport facilities may levy a request. That request would be serviced by placing a lookout card in the file which would then automatically involve notification of that agency when that person applied for a passport.

Mr. DULLES. Isn't there a broader point than that though, because the security agencies don't know in all cases what requirements to levy. Now if in this case, for example, in the Oswald case, if there had been this lookout card, and you had notified let's say the FBI and the CIA that the former defector had applied for a passport and might be going abroad, then they can put in a card, and then they can be helpful in following that situation abroad. But they don't know, if they don't know that Oswald is going to apply, they have no way of putting in their requirements.

In certain cases they can. But in a great many cases they cannot.

Mr. CHAYES. Well, let me make two points. First, now under the new memorandum as to defectors, the FBI and CIA and other security agencies will automatically be notified whether they have made a request or not.

Second, as to most people who have lookout cards, the FBI and the other security agencies couldn't care less about whether they apply for passports. Most of the lookout cards relate to loss of nationality, not security issues at all. So that there is a problem both ways. We can't, the Department can't--it could notify the security agencies whenever a lookout card, a person as to whom there was a lookout card applied for a passport.