 Section 26 of Whom We Shall Welcome. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Patrick McAfee, Evanston. Whom We Shall Welcome. Report of the President's Commission on Immigration and Naturalization. Section 26. Part 5. Chapter 15A. Security Protections. Chapter 15. Security Protections. Since the earliest days of the Republic, Congress has expressed concern over the activities of subversive aliens in our midst. The Alien Act of 1798 authorized the President to order the departure of any alien whom he deemed dangerous to the United States. The Alien Enemy Act of 1798 passed two weeks later, permitted the apprehension, restraint and removal of alien enemies if deemed necessary for the public safety. The first law was so unpopular and violated such fundamental American principles that it was allowed to expire after two years. The second, limited in application to time of war or threatened invasion, is still in effect. It was not, however, until 1903 that the law barred the entry of aliens who were regarded as inimical to the safety and security of the country. By a 1903 statute, anarchists and those who believed in or advocated the forcible overthrow of the government of the United States, or of all forms of government, or the assassination of public officials, were denied admission to the United States. These provisions were continued and strengthened in 1907 and 1917. The Anarchist Act of 1918, as amended in 1920, enlarged the description of aliens classed as subversive. It barred from the United States, aliens who write, publish or cause to be written or published, or circulate, distribute or display, or possess for such purposes any written or printed matter advising, advocating or teaching opposition to organized forms of government, or the overthrow by force, or violence of government, or the killing of officers generally, or unlawful damage to or destruction of property or sabotage. The Supreme Court in 1939 had occasion to interpret the laws which authorized the exclusion of aliens deemed subversive, and the deportation of those in the United States who were members of or affiliated with subversive organizations. The Supreme Court's decision required a finding by the government of present membership or affiliation in order to support the exclusion or deportation of an alien. However, the Congress reversed this situation in the Alien Registration Act of 1940, which made such membership at any time a ground for exclusion and deportation. Other enactments between 1940 and 1950 generally strengthened and to some extent enlarged the description of classes to be excluded or deported from the United States as subversives, and authorized the denial of visas to and the exclusion of aliens seeking to enter the United States for the purpose of engaging in activities which would endanger public safety. In the years immediately following the close of hostilities of World War II, a growing awareness developed of the inadequacies of existing law to cope with communism's drive for world domination. To meet this increasing threat, Congress enacted the Internal Security Act of 1950. This act greatly enlarged the proscribed classes of subversive aliens. For the first time, the Communist Party was mentioned by name. The terms communism, communist organization, communist front organization, totalitarianism, advocates, and doctrine were defined by statute. Moreover, the act makes membership, association, or affiliation with an organization required to register as a subversive organization under the Subversive Activities Control Act of 1950, a ground for exclusion and deportation. In addition, the discretion of the Attorney General to admit subversive aliens under pre-existing legislation was completely eliminated with respect to aliens returning to the United States to resume a permanent residence after a temporary absence abroad. Subversive aliens seeking temporary admission could do so only under a severely curtailed discretion of the Attorney General, and where exercised, the Attorney General was required to make a detailed report to Congress. Many provisions of the Internal Security Act of 1950 were attacked at the time as being unnecessarily harsh, improper, and not in the best interests of the country. The provisions of the Internal Security Act of 1950 have been carried forward into the Immigration and Nationality Act of 1952 without substantial change. The only significant difference in the treatment of subversive aliens under the 1952 Act is that the definition of totalitarian party is limited to an organization which advocates the establishment of a totalitarian dictatorship or totalitarianism in the United States. This would bar admission of members of the Communist Party, but some have expressed concern that it would not bar from the United States members of the Nazi, fascist, or phalange parties. Security Screening Process The various administrative agencies have endeavored to establish effective processes to screen out and bar subversive people. The State Department has devised an elaborate screening process in an attempt to ascertain whether applicants for visas come within the statutory designations of subversives. The law requires each applicant for a visa to prepare a lengthy documented application. In addition, the consular officers usually require the alien to submit a questionnaire designed when completed to provide a basis for a background check of the alien from a security point of view. After an examination of the papers submitted by the alien, sources of information available in the local Foreign Service posts of the United States and so-called Lookout Notices from the Department of State and the Department of Justice are checked. American officers at the Foreign Service post, such as the military, naval, air, or economic attachés are consulted to ascertain whether their respective spheres of operation have uncovered any information which might have a bearing on the alien's admissibility. Checks with other sources of information available abroad are utilized wherever practicable. The alien is invited to appear at the consular establishment to be examined under oath concerning his background and other factors bearing upon his eligibility for admission to the United States. If any derogatory information is uncovered, further action on the alien's application is suspended pending additional examination or pending reference of the application to the Department of State. Should the derogatory information indicate that the alien falls within one of the prescribed subversive classes, the interrogation is usually conducted more thoroughly in order firmly to establish the facts relating to the alien's admissibility. The alien may or may not be given an opportunity to rebut the derogatory information on file. The consular officer may, of course, refuse to issue a visa at any stage of the investigation. But if he entertains any doubt as to the alien's admissibility from a security standpoint, he is required by regulation to refer the case to the Department of State for an advisory opinion. For former voluntary members of proscribed organizations, no visa may be issued without an advisory opinion. If an advisory opinion from the Department of State is unfavorable, no visa may be issued. However, even if the Department of State renders a favorable advisory opinion, the consular officer may still refuse a visa as he sees fit. Wherever possible, the Department of State conducts an independent and supplemental security check utilizing various intelligence facilities of our government. Special provisions of law which relate to accredited officials of foreign governments or representatives of foreign governments to international organizations generally make impossible the application of normal screening processes to them. On the other hand, classes of aliens who, because of their profession, occupation, or previous status, present special problems are subjected to even closer scrutiny and additional checks. Possession of a visa does not entitle an alien to enter the United States. A visa is, in effect, a permit to apply for admission. An alien with a visa who applies for admission to the United States is required to satisfy the Attorney General that he is eligible under the immigration laws for admission. The Immigration and Naturalization Service has authority to make a completely independent security check upon an alien presenting a visa. Immigration officials at this point have the benefit of advice and information from various intelligence sources in the United States and elsewhere. Once an alien is in the United States, he may be deported for subversive activities. The investigations proceeding the arrest in deportation and the consequent hearing may have been made by one or more of the several intelligence agencies of the United States government, or may have been conducted by the Immigration and Naturalization Service. Thus, at each stage of the immigration process, the issuance of a visa, the admission at ports of entry, or deportation, the facilities for the detection or apprehension of the subversive alien represent the combined efforts of many intelligence and investigating agencies in addition to the agencies administering the immigration law. The commission made efforts to learn whether security agencies and those responsible for the administration of the immigration laws had any specific recommendations to make in order to strengthen the security provisions of such and related laws. At the time these efforts were made, the act of 1952 had not become effective. However, the commission is able to report that as of the time of its inquiry, the security measures in the laws and regulations were believed to be adequate. The sole exception was the suggestion that the commission recommend provisions to enable immigration authorities to exclude applicants for visas who are active members of or believe in the principles advocated by Nazi, fascist, and other such totalitarian organizations. Generally speaking, the immigration laws deal with three groups of subversives. One, spies and saboteurs. Two, present members and affiliates of subversive organizations. And three, former members or affiliates of subversive organizations. Spies and saboteurs. The act of 1952 makes ineligible to receive a visa and requires the exclusion of quote, aliens who the consular officer or the attorney general knows or has reason to believe seek to enter the United States solely principally or incidentally to engage in activities which would be prejudicial to the public interest or endanger the welfare, safety, or security of the United States. Aliens with respect to Hume, the consular officer, or the attorney general knows or has reasonable ground to believe probably would, after entry A, engage in activities which would be prohibited by the laws of the United States relating to espionage, sabotage, public disorder, or in other activity subversive to the national security. B, engage in any activity a purpose of which is the opposition to or the control or overthrow of the government of the United States by force, violence, or other unconstitutional means. Or C, join, affiliate with, or participate in the activities of any organization which is registered or required to be registered under section 7 of the subversive activities control act of 1950, end quote. Such aliens, even if they are permanent residents returning after a temporary absence abroad are specifically denied the benefits of the exercise of discretion. Provisions relating to the parole of aliens into the United States or to the waiver of documents for non-immigrant aliens are not intended by Congress to include these subversive aliens save for the possible purpose of prosecution for crime. Such aliens may be deported at any time without regard to when they entered the United States. Legislation which establishes an absolute bar against admission to the United States of those whose purpose in entering is to engage in activities which violate our laws relating to espionage, sabotage, public disorder, or national security must remain on our statute books and be strictly enforced. These statutory provisions give authority to deal with spies and saboteurs. However the act of 1952 gives a consular officer the absolute and unreviewable power to bar aliens whom he, quote, knows or has reason to believe, seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, end quote. Or with respect to whom the consular officer, quote, knows or has reasonable ground to believe, probably would, after entry, end quote, engage in subversive activities. Elsewhere, Chapter 11, the Commission discusses unreviewable administrative action. The difficulties are here aggravated because the statutory language is so undefined. It is susceptible of as many different interpretations as there are men applying it. Such absolute and unreviewable discretion is not necessary for the protection of the security of the United States. The statute should, without doubt, leave ample room for the exercise of discretion for the protection of the national security, but it should contain definite standards to guide administrative action so as to guard against abuse. The vague language of the act of 1952 does not meet this need, and it should be revised so as to specify that it applies to aliens who seek to enter or who are believed to be seeking to enter for the purpose of violating the criminal laws of the United States, relating to espionage, sabotage, and public order, or violating the laws relating to the protection of the conduct of military and foreign affairs, and relating to the protection of other activities and functions of the government and other public agencies, national, state, and local, upon which the national security depends. The administrative review elsewhere recommended for visa denial, exclusion, and deportation actions should be applicable here, Chapter 11. Present Members and Affiliates of Subversive Organizations The law forbids entry to aliens who are anarchists, or who are members or affiliates of the Communist Party or other totalitarian organizations, or who advocate or teach opposition to or violent overthrow of all organized government, or who write, publish, display, or circulate, or who possess for circulation any written or printed matter which teaches or advocates world communism, opposition to or forceful overthrow of government, the killing of officers of government, the destruction of property, or sabotage. Subversive aliens barred from admission to the United States are not limited to those who are members of the proscribed organizations, but also includes those who are affiliated with such groups. With respect to all classes of subversive aliens, except anarchists, the law authorizes the issuance of a visa to such an alien if he establishes to the satisfaction of a consular officer and the consular officer finds that the membership or affiliation of the alien in a subversive organization is involuntary, or occurred when the alien was under 16 years of age. It is necessary, in addition, however, that at the time the alien applies for admission to the United States, the Attorney General must independently be satisfied and also find that the alien to whom a visa was so issued was involuntarily a member of or affiliated with any of the enumerated subversive classes. The law authorizes the deportation of any alien who at the time of entry was within any of the classes excluded by law. It also provides for the deportation of any member of each of the categories of subversive aliens who is or at any time after entry has become a member of any of the proscribed classes of subversive aliens. Discretionary relief in connection with deportation is denied to aliens who are present members of subversive groups. There can be no doubt that present members or affiliates of subversive organizations should be excluded from the United States. The issue is what is to be regarded as member, affiliate, or a subversive organization. In these respects, the Commission believes that our present laws are not adequate. In part, the difficulty is that the Act of 1952 is lengthy, complex, repetitive, and obscure. As to membership, the Commission believes that the provision of the present law exempting involuntary members is desirable and sound. The purpose of the immigration law should be to bar only those aliens who, by their membership or affiliation with subversive groups, have identified themselves with the aims and principles of those groups. These exemptions should be interpreted broadly so that the statutory injunction will encompass only those who were subversives at heart and will not reach those who were merely nominal members or as a result of compulsion or mistake. Such involuntary membership or affiliation merits the exception which the statute gives it. Affiliation is not fully defined in the 1952 Act and the statute merely states, quote, The giving, loaning, or promising of support, or of money, or any other thing of value for any purpose to any organization shall be presumed to constitute affiliation therewith. But nothing in this paragraph shall be construed as an exclusive definition of affiliation, end quote. This definition is an improvement over the similar one contained in the Internal Security Act of 1950 which made the giving, loaning, or promising of support or of money a conclusive presumption of affiliation. Nevertheless, even this improved definition should be read in the light of the congressional expression of need for legislation controlling subversive activities contained in the Internal Security Act of 1950. Quote, In carrying on the activities referred to in paragraph 6, Establishment of Communist Totalitarian Dictatorship as part of the World Communist Movement, Such communist organizations in various countries are organized on a secret conspiratorial basis and operate to a substantial extent through organizations commonly known as communist fronts, which in most instances are created and maintained or used in such manner as to conceal the facts as to their true character and purposes and their membership. One result of this method of operation is that such affiliated organizations are able to obtain financial and other support from persons who would not extend such support if they knew the true purposes of and the actual nature of the control and influence exerted upon such communist fronts. End quote. The security of the United States must be protected against aliens guilty of true affiliation with subversive organizations. However, the statutory definition of affiliation condemns those who give support to front organizations for any purpose and thus may reach the innocent as well as the guilty. The definition of affiliation should make it clear that the law bars those aliens who by their support or contribution or other form of affiliation knowingly and willingly seek to further the subversive aims and principles of the organizations. This proposal is in keeping with the present law's provision authorizing the admission to the United States and the naturalization of aliens who became affiliated with a communist organization without knowledge of its character. In one respect, the act of 1952 leaves a security loophole and so does not go far enough to protect the national security. Although the statute attempts to encompass every activity and belief that might be deemed subversive, it fails to ban members or affiliates of foreign totalitarian organizations other than communists. It bars admission to quote aliens who are members of or affiliated with for the communist or any other totalitarian party of any state of the United States of any foreign state or of any political or geographical subdivision of any foreign state end quote. Comprehensive, though it sounds, this subsection may not bar Nazis, fascists, or other totalitarian groups who are not communists. This clause was carried forward verbatim from the Internal Security Act of 1950. But whereas the Internal Security Act defines the terms totalitarian dictatorship and totalitarianism as quote systems of government not representative in fact characterized by a the existence of a single political party organized on a dictatorial basis with as close an identity between such party and its policies and the governmental policies of the country in which it exists that the party and the government constitute an indistinguishable unit and be the forcible suppression of opposition to such party end quote. The act of 1952 adds to the above definition the following quote the term totalitarian party means an organization which advocates the establishment in the United States of a totalitarian dictatorship or totalitarianism end quote. Both the Senate and House Committee reports are silent on the significance of the definition limiting a totalitarian party to one which advocates the establishment of totalitarianism quote in the United States end quote. It would appear, however, that the new definition is intended to exclude from the ban of the immigration laws totalitarian parties such as the Nazis, fascists and phalanges who are believed not to advocate the establishment of a totalitarian dictatorship in the United States. No less than communism, other forms of totalitarianism degrade the dignity of man and deprive him of those rights which are declaration of independence holds to be unalienable. It is contended that the law should make a distinction between present membership in the Communist Party and present membership in other totalitarian parties on the ground that communism is the only present menace. While such a distinction appears plausible in the light of the eminence of the communist peril, the resurgence of neo-nazism and neo-fascism in Germany and Italy underlines the danger of treating such totalitarian movements too lightly. Nazi and fascists and other advocates of totalitarianism may not be developing plans today to overthrow the government of the United States or any other democratic government by force and violence. There was a period, however, when they did attempt to dominate the world. The cost of stopping that effort was the heaviest ever paid in the history of the world. The millions of graves of those who died that democracy might survive or who perished as victims of mass murder, the hundreds of thousands who were maimed, the millions who were stripped of their possessions and forced to undergo undescribable suffering, privation and misery, the destruction of the economic resources of once prosperous and happy peoples. These results of the evil ambitions, the cruelties of Nazism and fascism should keep the United States alert forevermore to the danger from that source. The communists and the Nazis pooled their ideologies and their plans for world conquest to begin World War II. The subsequent disintegration of that unholy partnership was fortunate for the democracies, but we shall be inviting disaster if we receive the disciples of one form of totalitarianism while arming for defense against the other. The commission deems the present adherence of all forms of totalitarianism to be hostile to our way of life and believes they should be banned from the United States. A problem that has troubled the commission has been the undesirable alien who is a product of our own society. Elsewhere, the commission has urged that such aliens not be deported. Where such an alien is a present subversive, a special issue arises. Apart from the fact that such an alien is a product of our society, the difficulty, as pointed out to the commission by the Immigration and Naturalization Service, is that deportation orders for subversives often prove futile. Mr. Justice Jackson succinctly stated the problem in his dissenting opinion in United States vs. Specter 343 U.S. 169 at pages 179 through 180. A deportation policy can be successful only to the extent that some other state is willing to receive those we expel. But, except selected individuals who can do us more harm abroad than here, what communist power will cooperate with our deportation policy by receiving our expelled communist aliens? And what non-communist power feels such confidence in its own domestic security that it can risk taking in persons this stable and powerful republic finds dangerous to its security? World conditions seem to frustrate the policy of deportation of subversives. Once they gain admission here, they are our problem and one that cannot be shipped off to some other part of the world. A law which cannot be enforced brings the entire administration of justice into disrepute. The commission requested the Immigration and Naturalization Service for advice and recommendations to meet the problem of aliens who are under orders of deportation but cannot be deported because no country will accept them. The answer was that the Internal Security Act of 1950 had provided and the Act of 1952 had contained certain limited sanctions to aid in effectuating an order of deportation against persons in the subversive, criminal and other undesirable groups and that no other methods of dealing with this matter had been devised. Under such circumstances, therefore, the commission believes that this country should accept as its own responsibility all those aliens who are the product of our own society. The commission recommends that, one, present members of subversive or totalitarian organizations or persons who, by their present affiliation with such organizations, manifest their belief in or sympathy with the aims and principles of such organizations should be denied visas and should be excluded from admission to the United States. Present membership or affiliation should create a presumption of such belief or sympathy subject to countervailing evidence to prove that such membership or affiliation was involuntary. 2. The definition of totalitarian party, totalitarian dictatorship and totalitarianism should be clarified so that it embraces all aliens in sympathy with the governmental theories and policies of totalitarianism as that word is defined in the Internal Security Act of 1950. 3. Affiliation, as used in the immigration laws, should be defined so that it embraces only those aliens who, by their action and conduct, have demonstrated an association with totalitarian groups because of sympathy for or agreement with the subversive aims and principles of such groups. 4. Alien members or affiliates of subversive organizations who were lawfully admitted to the United States for permanent residence prior to reaching the age of 16 years or who were lawfully admitted for permanent residence and have resided in the United States continuously for at least 20 years should not be subject to deportation but should be dealt with in the same manner as subversive citizens. End of Section 26. Recording by Patrick McAfee, Evanston. Section 27. Of Whom We Shall Welcome. Section 27. Recording by Andy Glover. Section 27. Recording by Andy Glover. Section 27. Recording by Andy Glover. Section 27. Recording by Andy Glover. Section 27. Recording by Andy Glover. Section 28. Recording by Andy Glover. Section 29. Recording by Andy Glover. Section 29. Recording by Andy Glover. Section 30. Recording by Andy Glover. Each case in this last category must be reported to the Congress. The deportation of former members or affiliates of subversive classes is, as in the case of present members, provided for by the law. However, unlike present members, former members or affiliates of subversive groups are eligible under severely limited conditions to receive discretionary relief by way of suspension of deportation. The problem of past membership or affiliation is obviously a difficult one. If there is merely a severance of formal bonds of association without a corresponding repudiation of sympathetic belief in the aims and principles of the subversive group, such aliens continue to be threats to our security. A former member who has made a genuine break with subversive ideology offers no threat to our security. Indeed, experience has shown that such converts may represent very stable adherents to the principles of democracy because they are less likely again to succumb to the false blandishments of totalitarianism. The removal of the absolute bar against former and now reformed subversive aliens strengthens our own internal and external security and advances our foreign policy. However, the act of 1952 contains other important defects. For example, the requirement of five year active opposition to a formerly held totalitarian ideology may defeat important objectives of our intelligence and foreign policy agencies. Escapies who come out from behind the iron curtain or defectors from communism elsewhere may be of vital and immediate importance to our security and defense as well as to our foreign policy, and yet they must wait five years, although there may be conclusive proof of complete reformation in a shorter period of time. Indeed, retention of an inflexible five year bar against former subversives might seriously impair the commission's proposals to grant priority to refugees from communism. The genuineness of their opposition to totalitarianism cannot be measured by the loudness of their disclaimers. There is an inconsistency in our laws relating to former membership or affiliation in subversive organizations. The act of 1952 carries forward the previous law's failure to coordinate the naturalization and deportation directives aimed at former members of subversive organizations. The naturalization law permits the admission to citizenship of former subversives whose membership in the prescribed organization ended more than 10 years earlier. But the deportation statute apparently permits the expulsion of such former subversives at any time, even after 10 years has expired since the membership or association with the subversive group terminated. It would seem reasonable to suppose that if a former member of a subversive group is eligible for naturalization after 10 years, he should by the same token be able to avoid deportation. There are also the grossly inconsistent provisions to the effect that a former member of a subversive organization who actively opposed that subversive organization for a period of five years may now be admitted into the United States, although he was never here before. While a longtime resident alien, who 30 years ago resigned from membership in a subversive organization, left it and has since actively opposed it, must be deported. The commission believes that the provisions of the act of 1952 to the effect that membership in or affiliation with subversive organizations should not necessarily be a bar to entry into the United States are sound. And the commission recommends that these same provisions be extended to cover deportation procedures so that former membership in or affiliation with subversive organizations, genuinely repudiated over a period of at least five years, should not be a ground for deportation. The commission recommends that the requirement of active opposition should be amended by deleting the word active, thus making its benefits available to all opponents of totalitarianism. The commission recommends that the requirement of five years opposition should be subject to waiver in appropriate cases, after thorough screening and approval by the appropriate security agencies of the United States. This would make possible the admission of bona fide escapees and defectors. The commission recommends that the immigration law apply the same conditions to former members and affiliates of all totalitarian parties, whether they were communist, Nazi, fascist, or other such parties. It should be noted too that the law requires a finding by both the consular officer and the attorney general that the admission of the alien would be in the public interest. Without criteria under which in the public interest may be measured, the phrase seems too vague for effective administration. It is quite conceivable that administrative officers might seldom, if ever, find that the admission of a former, communist, Nazi, or fascist would affirmatively be in the public interest. The commission recommends that the law should require a finding that the admission of a former subversive would not be contrary to the public interest. Exclusion without hearing. Security considerations sometimes create special problems in connection with otherwise normal immigration procedures. At least for the past 60 years, an alien has been entitled to a hearing before he can be excluded at a port of entry. However, when the ground for his exclusion involves confidential information, the disclosure of which would be detrimental to the best interests of the United States, there is a conflict between two important values. On the one side is the security of the United States. On the other is the fundamental concept of American law that a person is entitled to a fair hearing before the government takes action affecting him. From at least 1893 until 1941, no alien, not even a subversive, could be excluded without a hearing. In 1941, such provision was made. The Passport Act of 1918 authorized the President in time of war or national emergency to impose additional restrictions and prohibitions on entry into and departure from the United States upon a finding that the interests of the United States so required. The President issued a proclamation on November 14, 1941, reciting the existence of a national emergency and declaring that no alien should be permitted to enter the United States if it appears to the satisfaction of the Secretary of State that such entry would be prejudicial to the interests of the United States. As provided in regulations issued by the Secretary of State with the concurrence of the Attorney General, these regulations authorized the Attorney General to deny hearings when a person is excludable on the basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest. From the evidence before the Commission, including testimony before congressional committees and various United States government briefs in the Supreme Court, this measure was intended to have only limited application. It seems that this procedure was designed to provide a legal sanction for denying access to the United States during war or national emergency, only in those special cases where disclosure of the information or the source of the information on the basis of which the exclusion is ordered for security reasons would be contrary to the national interest. During the war years, this new procedure was sparingly used. The Immigration and Naturalization Service reports that only a negligible number of aliens were excluded without a hearing. However, with the end of hostilities, immigration to the United States was resumed on a larger scale. In addition, the nation became increasingly aware of the threat to its security by world communism. These two circumstances resulted in an enlarged application of the hitherto limited measure of denying entry without a hearing because of confidential information. Aliens who had been or were associated with communist activities and those suspected of such affiliation were excluded without hearing in substantial numbers at seaports and to a much larger extent at land ports of entry. From December 1948 to July 1st 1952, approximately 2,000 aliens, other than seamen, were temporarily excluded without a hearing, and in about 500 cases the exclusion without hearing was made permanent. The constitutionality of exclusions of aliens without hearing was upheld by the Supreme Court. The Internal Security Act of 1950 provided the first express statutory authority for excluding an alien without a hearing in security cases. Unlike the Passport Act, however, the Internal Security Act of 1950 does not limit the exercise of the power to exclude without hearing to time of war or national emergency. These provisions of the Internal Security Act of 1950 are carried forward into the Act of 1952. The consideration of exclusions without hearing cannot be isolated from the larger problems created by the efforts of the United States to safeguard its security during the current era of international tensions. At many levels in our national life we have been confronted with the dilemma of attempting to resolve apparent conflicts between our national safety and traditional concepts of freedom. The attempt to discover a precise line of demarcation is a quest that has led us in many directions and has not yet resulted in any satisfactory solution. The Commission believes that the present situation in connection with exclusions without hearing is unsatisfactory. The protection of the right to a fair hearing is essential to a democracy. Any legal process which affects people's rights without giving them a chance to be heard is ordinarily regarded as being repugnant to the American sense of fair play. It denies a person the opportunity to defend himself against what may be false accusations. It encourages slanders by people whose stories may be generated by malice, misinformation, or the desire for self advancement. However, in time of crisis there may be need for extreme measures to protect the national security and even perhaps for some relaxation of our traditional safeguards for individual rights. Under present world circumstances it may be necessary for the United States government to have authority to bar, without a hearing, aliens whose admission would directly menace the national safety. However, such a power should not be exercised except in the extreme and unusual case where the national security, or the lives, welfare, or continued usefulness of our intelligence agents and informants are immediately affected by the fact that the very holding of a hearing will cause disclosure of highly secret information. The officials who have exercised the extraordinary power to exclude aliens from the United States without hearing have been motivated, the Commission believes, by a sincere desire to protect the nation. However, there is some public belief that this unusual power has been or may be used to excess and without adequate safeguards. And there is some evidence, including testimony of a responsible immigration official, before a congressional committee, to substantiate this belief. The law should provide measures to avoid abuse of this extraordinary power and to limit its exercise to those few and rare cases in which the security of the United States is actually involved. The Commission recommends that determination, as to whether an alien should be excluded without a hearing, on the basis of confidential information, should be made by the proposed Board of Immigration and Visa Appeals, recommended in Chapter 10. Each alien affected should, unless the proposed Board of Immigration and Visa Appeals decides to the contrary, receive notice of the nature of the charges against him, and such other information as the Board may determine, after consultation with intelligence agencies, will not prejudice the public interest. Any such alien should have the opportunity, before any such determination is made, to testify and to present in person, or by counsel, any information or evidence or argument he may desire to submit on his own behalf. These procedural safeguards should be incorporated into the statute or in regulations issued there under. A determination to exclude without a hearing should be supported by strong and convincing evidence, not mere rumor or unsustained suspicion. It should be reached only after every effort is made to investigate the charges and evaluate the confidential information. It should never be used because evidence is not easily obtainable. In this way, the Commission believes that the security of the United States would be protected and a procedure established to preserve the American concept of fair dealing, non-immigrants. During its hearings, the Commission was advised of the serious problems raised by denial or delays in the granting of visitors visas to distinguished scientists, scholars, and other leaders in the arts, professions, and business. The Commission believes that no special rule should be made for visitors or non-immigrants who are present members or affiliates of subversive organizations. However, the problem seems to have arisen because of former association with such organizations. In discussing the subject of visas for immigrants who wish to come for permanent residence and who were former members of subversive organizations, the Commission expressed doubt as to the wisdom of a rule in the Act of 1952, which set an inflexible five-year period between renunciation of such membership and eligibility for such visas. There seems to be no necessity for applying such a five-year rule to temporary visitors. If the visa-issuing officers have authority to issue a non-immigrant or visitor's visa to a former member of a subversive organization, without regard to a five-year period of renunciation, their decisions can be made on the basis of the facts in each particular case. The length of time since repudiation of the subversive ideology, the nature of subsequent opposition to such views, the purpose and length of the proposed visit to the United States, the aliens' field of activity and background, and the character of his sponsorship are all factors relevant in such considerations. Some of the complaints during the Commission's hearings concerning non-immigrant visas relate to administration. It was said that the consular offices are understaffed and cannot act rapidly enough to serve the needs of American universities and other institutions which sponsor and invite distinguished visitors for symposia, conferences, or other meetings. Another suggestion arose out of the embarrassment suffered by leading American institutions which invite foreign guests and make preparations for their reception, only to find that they are refused visas. The Commission was requested to recommend that the law provide a pre-clearance system for professional and scientific persons invited to the United States by universities and scientific or other institutions. The purpose of this suggestion is to obtain a binding commitment in advance from the Department of State that a particular scientist or professor would be issued a visa upon application. In this way, invitations would be extended only to those whose admissibility to the United States was assured and the embarrassments of the present situations could be eliminated. The Commission believes that this suggestion should be given a trial unless some more effective procedure is devised. A matter of great importance to the United States is the status of defectors. These generally are official representatives of a totalitarian government who, while officially in the United States, defect and request asylum here. Such persons normally were admitted only because of their diplomatic status. Having lost such status, the law requires that, as former subversives, they be deported. Temporary arrangements now are made to bridge the gap. If the defection of such former official is genuine, his contribution to the cause of democracy in combating the ideologies which he formally embraced is usually invaluable according to the highly reliable advice given to the Commission. The law should permit adjustment of the status of such a person so that he may remain in this country and aid in the cause of democracy. The Commission recommends that arrangements be made to expedite the granting of visas to distinguished scientists, scholars and other leaders in the arts, professions and business invited to the United States for temporary visits by responsible institutions and that consideration be given to the inauguration of a pre-clearance system so that it could be determined in advance whether particular individuals would be admitted as temporary visitors. The Commission recommends that aliens should be permitted to enter the United States for temporary visits, regardless of former membership or affiliation with subversive organizations. If the purpose of their visit is legitimate and if there is no reason to believe that they will engage in activities inimical to the United States. The Commission recommends that bonafide official defectors from totalitarianism be permitted to adjust their status to permit them to remain in the United States. End of Section 27 Section 28 of Whom We Shall Welcome This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Patrick McAfee, Merritt Island. Whom We Shall Welcome Report of the President's Commission on Immigration and Naturalization. Part 5. Chapter 16A. Citizenship. Chapter 16. Citizenship. American citizenship is one of the most valuable rights in the world today. The manner in which it can be acquired or lost is a matter of deep concern to all Americans. It is important that the establishment of such a basic right shall be clearly defined, and that unreasonable conditions shall not defeat the creation and maintenance of citizenship status. American citizenship may be acquired through birth or naturalization. All persons born in continental United States, Alaska, Hawaii, Puerto Rico, Virgin Islands, and Guam, with a few exceptions, are citizens of the United States at birth. Persons born abroad to American citizen parents derive citizenship through their parents. If only one parent is a citizen of the United States, citizenship may, subject to certain limitations, be transmitted to the child at birth. The privilege of naturalization is open to all resident aliens who can prove five years' lawful residence, good moral character, and attachment to the principles of the Constitution of the United States. By law, special benefits such as waiver of some of the residence requirements are provided to certain groups. Among these special groups are spouses and children of citizens and aliens with military and maritime service. The Immigration and Naturalization Service exercises administrative supervision over the naturalization process, but naturalization can be granted only by a naturalization court. Citizenship can be lost in two ways. The first is denaturalization, which applies only to naturalized citizens and subjects them to revocation of citizenship by court order. The second is called expatriation and applies to all citizens native-born and naturalized, making them subject to loss of citizenship for certain acts deemed inconsistent with the duties and obligations of citizenship. There are 10 such types of conduct, now specified by statute, which cause expatriation, including obtaining naturalization in a foreign state, taking a foreign oath of allegiance, renunciation of American citizenship, serving in a foreign army, and voting in a foreign election. In certain respects, the Act of 1952 made significant improvements in the nationality laws. Among these were the complete abolition of the racial disqualifications, confirmation of the right to naturalization of conscientious objectors on religious scruples, elimination of the formal declaration of intention as a prerequisite for citizenship and removal of the literacy requirement for older people. However, there are some undesirable substantive and procedural provisions in the Act of 1952 relating to nationality problems. It is in the national interest to encourage qualified aliens to become American citizens. Naturalization requirements or procedures which unreasonably restrict the full integration of qualified aliens into the American community are unwise. Obviously, provisions which unreasonably subject American citizens to loss of their citizenship, or which discriminate among American citizens by failing to treat them all equally are not in our country's best interest. Second Class Citizenship Many witnesses before the commission were critical of what they characterized as Second Class Citizenship. The complaint concerned provisions of the Act of 1952 which give naturalized citizens an inferior status to native-born citizens. This situation arises in relation to the status of naturalized Americans and the rights of Native Americans who have acquired dual nationality at birth. Conduct subsequent to naturalization Since 1906, the naturalization laws have authorized revocation of naturalization after it has become final and fully effective. Denaturalization has no counterpart in the status of the native-born American. Naturalization is a judicial function. In passing upon an application for citizenship, the naturalization court must determine whether the applicant has met qualifications prescribed by Congress. If the applicant has deceived the court, it seems entirely appropriate that the benefits he has improperly obtained should be taken away. A safeguard against hasty or ill-advised action is the requirement that denaturalization can be accomplished only upon order of a naturalization court. Fraud or illegality in the naturalization proceeding directly affects the propriety of the naturalization itself and justifies its cancellation. However, what happens after the court has granted naturalization is another matter. The Act of 1952 has introduced new provisions which have gone beyond the protection of the naturalization process and have created the possibility of denaturalization on the basis of conduct occurring after naturalization. These innovations in the Act of 1952 were deplored in testimony during the commission's hearings. They were characterized as devices which, if extended, would jeopardize the status of millions of naturalized citizens. It was pointed out that since native-born citizens were not subject to such penalties, the statute tended to make the naturalized American a second-class citizen. There are several examples of this type of provision in the statutes. An illustration is the statutory presumption of fraud which authorizes denaturalization in the absence of countervailing evidence because of a naturalized citizen's residence in a foreign country. Such residence, subject to naturalization, is related back to the naturalization itself. This category of presumptive fraud applies to naturalized citizens who, within five years after naturalization, established residence in a foreign country. In applying for citizenship, an applicant must swear that he intends to reside permanently in the United States. Since 1906, the naturalization statute has designated as presumptively fraudulent the naturalizations of persons who establish residence in a foreign state within five years after naturalization and has made their naturalizations subject to revocation in the absence of other evidence. Approximately 95% of revocations of naturalization have been on this ground. In 1951, out of an aggregate of 403 denaturalizations, 384 were for presumptive fraud in establishing residence abroad within five years after naturalization and the remaining 19 were for actual fraud or illegality. The Act of 1952 introduces a new ground for denaturalization for presumptive fraud specifying that, if within five years after naturalization, a naturalized citizen joins or affiliates with a subversive organization, membership in which would have barred the grant of citizenship. His naturalization is subject to revocation as presumptively fraudulent. In such cases, it is presumed in the absence of contrary evidence that the naturalized person was not attached to the principles of the Constitution of the United States or well-disposed to the good order and happiness of the United States. Another example of such a provision is the new one in the Act of 1952 which subjects to denaturalization an alien who is convicted of contempt of Congress for refusing within 10 years after his naturalization to testify before a congressional committee concerning his subversive activities. These three illustrations differ in one important respect. The former two are presumptions which relate to whether the original naturalization was obtained by fraud through concealment of material facts. Both relate to the naturalized person's intentions at the time of applying for naturalization and thus present formidable difficulties of proof. In the two presumptions mentioned in the statute, the conduct which follows after the naturalization appears to negate the declarations as to intention and belief made by the naturalized person when he sought citizenship. Although the loss of citizenship through presumption is undesirable, it seems reasonable to assume until further proof is presented that a naturalized person swore falsely in stating that he intended to reside permanently in the United States when he actually became a permanent resident of a foreign country soon after his naturalization. This presumption can be rebutted and often is, by evidence, submitted to consular officers or to a naturalization court indicating that the representations in the naturalization application were bona fide. So too, it does not appear unreasonable to assume that a naturalized person sworn falsely in declaring that he was attached to the principles of the Constitution when he joined a subversive organization within a short period after his naturalization. Here, too, the opportunity is offered to the naturalized person to prove that he is not guilty of deception in connection with his naturalization. Although these two directives for loss of citizenship through presumptive fraud are aimed only at naturalized citizens, the commission concludes that they relate to the propriety of the naturalization itself and represent a reasonable measure of control against fraudulent naturalizations. The provision relating to contempt of Congress is of another character. As undesirable as the conduct may be, it does not necessarily relate to the legality of the original naturalization. The punishment of proved subversives is necessary to our national security. But where there is no evidence of fraud in the original naturalization, the use of denaturalization as such a punishment is dangerous to our welfare as a nation because such legislation is a disturbing step in the direction of insecure citizenship status. The threat today to the citizenship of naturalized citizens who defy Congress may tomorrow menace the status of all naturalized Americans. The naturalized citizen who violates the law should be punished, but his punishment should be no different from that applicable to a native-born citizen. Denaturalization should not be used as an additional penalty for discrimination between native and naturalized citizens. The Commission recommends that a naturalized citizen should not be subject to denaturalization for conduct subsequent to his naturalization unless such subsequent conduct proves that he obtained his citizenship by fraud or illegality. Residents in a foreign country In 1907, Congress provided that any naturalized citizen who resides for two years in the foreign state from which he came or five years in any foreign state shall be presumed to have lost American citizenship. The 1907 Act was designed to deal with the difficulty experienced by the State Department in affording protection to American citizens resident in foreign lands, particularly naturalized citizens who returned to their countries of origin. The presumption was used only to relieve the State Department of the obligation to extend diplomatic protection to those naturalized citizens who remained abroad for a described period of time. Citizenship was not lost there under, however, since the courts construed the presumption of loss of nationality as one easy to overcome, for example, by returning to the United States, regardless of the length or cause of absence. In 1940, Congress abolished the presumption and provided absolute loss of citizenship by a naturalized citizen by reason of mere residence abroad, residing for two years in the country of birth or former nationality if by such residence he acquires nationality of such state, residing for three years in the country of birth or former nationality or residing five years in any foreign country. The Act of 1952 retains the three and five-year residence periods for loss of nationality. These provisions for loss of nationality limited to naturalized citizens create a second-class citizenship status. Native-born citizens have an unrestricted right to travel and remain abroad as long as they please. A naturalized citizen may remain abroad no longer than five years. The loss of citizenship under this law is now automatic. It is no longer a mere presumption subject to rebuttal. It has been urged upon Congress that naturalized citizens who return to their countries of origin or former nationality are apt to renew old associations and ways of living and thus lose to a large degree if not completely their American ties. Furthermore, it is objected such naturalized citizens although wholly divorced from American life by reason of resumption of former residents and ways transmit their American citizenship to their foreign-born and reared children. This argument, however, does not apply to the provision for loss of nationality by naturalized citizens who go to a third country. In this respect, the situation posed by protracted foreign residents is the same for the native-born as it is for the naturalized citizen. Neither goes back to a former culture or way of life. The foreign-born children of both are equally removed from customs, traditions, and ways of life. There is no reasonable distinction between native and foreign-born citizens under such circumstances. These provisions are detrimental for several reasons. By attaching strings to a naturalization order they create a body of citizens unable to do except on penalty what other citizens may do. Secondly, they undo a judicial determination without the benefit and protection of court action. Naturalization is obtained through a formal judicial proceeding determined by the entry of a formal judgment. All judgments should be clothed with that degree of finality necessary to the orderly process of judicial administration. Judgments in naturalization should similarly be vested with finality. If fraud in obtaining naturalization is suspected, a judicial proceeding to set aside the judgment is necessary. The loss of naturalized citizenship by reason of mere residence abroad should not result from legislative fiat. The commission recommends that a naturalized citizen may lose citizenship by three years residence in a foreign country only if the country be the one of his birth or former nationality and that in such case the foreign residence should create a presumption of the loss of citizenship which, unless rebutted in an appropriate judicial proceeding may result in the entry of a judgment terminating his citizenship. Dual Nationality at Birth Under the laws of some countries the nationality of parents is vested in the children no matter where they are born. Consequently, if born in the United States of aliens who are citizens of such a country children would have citizenship in the United States and also in the country of their parents. Likewise, if they were born in a country where their parents were native or naturalized citizens of the United States maintained residence they would be citizens of the country of their birth and also of the United States. Such persons are known as dual nationals. The Act of 1952 incorporates a new provision the purpose of which is to cause the loss of nationality of a native born citizen in birth also acquired a foreign citizenship if he should reside for three years in the state of his foreign citizenship at any time after attaining the age of 22 years and seek or claim the benefits of such foreign nationality. The full force of this provision is lessened by exempting from its operation those dual nationals who are abroad for certain specified purposes and who prior to the expiration of the three year period of residence take an oath of allegiance to the United States before an American diplomatic or consular officer. Witnesses at the commission's hearing criticized this provision stating that it improperly curtailed the rights of native born Americans and that such dual nationals should be subject to loss of their citizenship only for the same causes that apply to other native citizens. The purpose of this statutory provision is to eliminate a status of dual nationality in which a person who resides in a foreign country and is not in fact identified with the United States uses his American citizenship only when it suits his purposes. It is not in the national interest to permit retention of dual nationality by a person to whom American citizenship is only a matter of convenience and who has no real tie with the United States. Consequently there is merit in the principle which requires the dual national under certain circumstances to make an election between his nationalities. However, the commission believes the present statute should be revised in several respects. The statute does not distinguish between dual nationals who were born in the United States to American parents who live in this country virtually their entire lives and dual nationals who have been abroad to American citizens and have never been in the United States. Americans born here or abroad who have spent their formative years in the United States and who reside in this country when they reach the age of 21 should be deemed to have elected American citizenship and should not be treated differently than any other citizens. There is no limitation on the purposes for which Native Americans can reside in a foreign country provided they have elected to retain their American citizenship. The statute should provide greater assurance against retention of two citizenships by dual nationals residing abroad by requiring them to renounce their foreign nationality when they take an oath of allegiance to the United States. Birth in territories or possessions All persons now born in Alaska, Hawaii, Puerto Rico, Virgin Islands, and Guam subject to the jurisdiction of the United States acquire United States citizenship at birth. However, the status of persons previously born in those possessions is not clear. Former statutes wove a patchwork pattern which left obscure and uncertain the status of many inhabitants of such territories, particularly Puerto Rico. The Act of 1952 did not clarify these obscurities. The Commission recommends that the citizenship status of persons born in the territories and possessions of the United States be clarified by explicit statutory provisions. The Commission recommends also that legislation be enacted to confer citizenship benefits upon the indigenous inhabitants of American Samoa. The last major possession of the United States to which the protections of American citizenship have not been extended. Statelessness It is commonly accepted that every person should have a nationality and that statelessness should be avoided. Yet our laws today contain many grounds for the loss of American citizenship which have no relationship to the acquisition of another nationality. One informed witness before the Commission stated that we have more grounds for evoking citizenship through expatriation than any other country. Under our laws a person may lose his American citizenship although he has no wish to give it up and although he does not at the same time acquire citizenship in another country. As a result he becomes a stateless person. There is a valid and important difference between giving up one's nationality by voluntary expatriation and becoming stateless by virtue of legislative mandate. In the early days of the country the United States was the international champion of every individual's right to expatriate himself. In 1868 Congress declared by statute that the right of expatriation is a natural and inherent right of all people. We were then welcoming and seeking immigrants from the old world and the refusal of European rulers to recognize American naturalization of its former subjects was a matter of concern to us. But although the United States recognized and espoused the inherent right of all persons to expatriate themselves our own laws were silent as to what actions by our citizenry would result in voluntary expatriation or involuntary forfeiture of citizenship. The courts and administrative officers solved such issues as they arose. In 1907 Congress declared that any American citizen shall be deemed to have expatriated himself when he has been naturalized in a foreign state or has taken an oath of allegiance to any foreign state. Except for statutes providing for loss of the rights of citizenship in time of war by deserters or draft evaders the law remained unchanged until enactment of the Nationality Act of 1940. This greatly increased the kinds of actions and conduct on the part of American citizens which would affect their expatriation or loss of nationality. The Act of 1952 continued in the framework of the Nationality Act of 1940 with some modifications. The 1952 Act lists 10 grounds upon which both a native born or naturalized citizen may lose his nationality in addition to the provisions that deal especially with naturalized citizens and dual nationals. Experience under the 1940 Act according to informed observers has shown that some of the grounds of expatriation have deprived American citizens of citizenship as a result of acts committed under circumstances which do not warrant such a loss. Perhaps the most serious objection to the inclusion of so many grounds for expatriation is that the law thus enlarges the class of stateless people. Some of the many examples which illustrate this characteristic of the law are as follows. Service in Foreign Armed Forces Prior to 1952 service in the armed forces of a foreign state without express authorization by the laws of the United States caused expatriation and loss of American citizenship only if the person had or acquired the nationality of such foreign state. The Act of 1952 makes mere service itself an act of expatriation without regard to whether it involved an oath of allegiance to such foreign state or any act or course of conduct inconsistent with the duties and obligations of American citizenship. Unless prior to entry into such armed forces such service has been officially authorized in writing by the Secretary of State and Defense. Service in foreign armies by American citizens can be motivated by many purposes entirely consistent with allegiance to the United States. Thus before entry of the United States into World War II many Americans volunteered for service in the armies of Canada, Great Britain and other nations later allied with the United States. Other young Americans serving in foreign armies because of a spirit of adventure still others may serve as technicians. No sound national purpose is served by imposing the loss of citizenship unless the service is accompanied by an oath of allegiance or is undertaken by one who has or acquires the citizenship of the foreign nation in whose army he serves. The Commission recommends that the law in this respect be restored to what it was prior to the Act of 1952. Voting in Foreign Political Election The Act of 1952 continues without change the provision of the Nationality Act of 1940 that voting in a political election of a foreign state is a ground for expatriation. Although exercise of the franchise in a foreign country ordinarily denotes allegiance to that country experience with this provision has proved troublesome. Congress has found it necessary to pass legislation excusing such voting in certain elections in Italy. The fact is that voting in political elections is not always restricted by the laws of foreign countries to their own citizens. In the Italian elections a few years ago for example, a campaign was waged from the United States to urge all qualified persons to vote. A similar situation occurred in occupied Japan and Germany. Furthermore, both the courts and administrative officials of the government have had difficulty in determining what is a political election. This cause for expatriation also creates or may create a group of stateless persons. In such cases where eligibility to vote in a foreign state even in political elections is dependent only upon the ownership of property in the foreign jurisdiction the act of voting is not inconsistent with allegiance to the United States. The Commission recommends that citizenship be lost by virtue of voting in the political elections of a foreign state only where eligibility to participate in such elections is by the laws of such foreign state restricted to its own citizens and where the person who so voted had or acquired the nationality of such foreign state. End of section 28 Recording by Patrick McAfee Merritt Island