DEPARTMENT OF STATE TESTIMONY ON S. 2263, A BILL TO PROTECT THE PUBLIC'S RIGHT TO RECEIVE AND COMMUNICATE INFORMATION FREELY ACROSS THE AMERICAN BORDER, AND TO ENSURE THE RIGHT OF INTERNATIONAL TRAVEL.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B01390R000901110040-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 20
• Document Creation Date: December 22, 2016
• Document Release Date: December 13, 2010
• Sequence Number: 40
• Publication Date: August 8, 1986
• Content Type: MEMO

I
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EXECUTT h ric o
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON. D.C. 10503
August 8, 1986
LEGISLATIVE REFERRAL MEMORANDUM
SEE ATTACHED DISTRIBUTION LIST
SUBJECT: Department of State testimony on S. 2263, a bill "to
protect the public's right to receive and communicate
information freely across the American border, and to
ensure the right of international travel."
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than 2:00 -- 8/8/86.
(NOTE -- A hearing on S. 2263 is schedule for 8/11/86.)
Direct your questions to Branden Blum (395-3454), the legislative
attorney in this office.
1~ ~ ) Vn
James C. urr f r
Assistant Direc
Legislative Refektence
Enclosure
cc: Peterson Wallison Tara Treacy Carol Ballew
John Cooney Sue Thau Jim Jukes
Mike Margeson Bob Howard Karen Wilson
~IC~E~fc~V't'-lfFAIRS
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DISTRIBUTION LIST
AGENCY
CONTACT
PHONE NUMBE
Department of Commerce (04)
Mike Levitt
377-3151
Department of Defense (06)
Werner Windus
697-1398
Department of Education (07)
JoAnne Durako
732-2670
Department of Energy (09)
Bob Rabben
252-6718
Department of Justice (17)
Jack Perkins
633-2113
Department of Labor (18)
Seth Zinman
523-8201
Department of the Treasury (28)
Carole Toth
566-8523
United States
Trade Representative (23)
Lynn Johnston
Natio 1 Security Council
Cen al Intelligence Agency
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TESTIMONY BY
MICHAEL B. NEWLIN
DEPUTY ASSISTANT SECRETARY OF STATE, BUREAU OF CONSULAR. AFFAIRS
DEPARTMENT OF STATE
BEFORE THE SUBCOMMITTEE ON INTERNATIONAL
ECONOMIC 80LICY, OCEANS, AND ENVIRONMENT
AUGUST 11, 1986
Mr. Chairman and distinguished members of the
Subcommittee. I am pleased to have this opportunity to testify
today about Department of State practices and policies that
affect the international flow of people and ideas, and to
explain how those practices and policies further the national
interest in significant ways while remaining true to the
Constitution and our international obligations. In particular,
I welcome this opportunity to offer the Department's views
concerning S. 2263 -- the chairman's pending bill 'To protect
the public's right to receive and communicate information
freely across the American border, and to ensure the right of
international travel.'
Before offering specific comments on S. 2263, however, I
believe it would be appropriate to make some general
observations about the first Amendment concerns that trouble
the proponents of S. 2263 and similar proposed legislation like
8. 2177 and H.R. 2361.
Freedom of expression is a fundamental freedom enshrined in
the First Amendment. I wholeheartedly concur in the
distinguished Chairman's statement of March 27 upon submission
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of S. 2263 that 'A free flow of information and ideas among
American citizens is the foundation of our democratic
society.' However, the fundamental right of free expression
must sometimes be balanced against important competing national
interests.
Much of the support for initiatives like S. 2263 is based
upon the false notion that this administration is engaged in an
ideological campaign to use existing visa and others laws to
stifle the right of American citizens to receive information.
For example, columnist Anthony Lewis recently asserted, in an
editorial titled 'Fear of Freedom,' that 'the fear of dangerous
ideologies (has) intensified ... under the Reagan
Administration.' Such assertions are totally without
foundation and could not be further from the truth.
my virtue of my position, I have intimate, first-hand
knowledge concerning both the officials who make'such decisions
and the methods by which such decisions are made. I can assure
you that I have never seen or heard of an alien having been
barred from this country solely, or even principally, because a
government official disagrees with the alien's abstract
political opinions. in fact, determinations to deny aliens
visas under section 212(a)(27),(28) and (29) of the immigration
and Nationality Act are made most thoughtfully, with the
conviction that the Department is complying fully with the
intent of Congress.
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As I make clear in my further comments, both the Secretary
of State and the Attorney General have made it absolutely clear
that it is not the policy of this Administration to deny visas
to aliens merely because of their abstract political ideology,
or because the Administration wishes to deny Americans access
to ideas with which it disagrees. In this connection, the
Department of State would not oppose, in principle, changes to
section 212(a)(28) of the INA that might ameliorate concerns
about possible-infringements on the First Amendment rights of
Americans, provided that such changewould preserve the.
Executive's existing authority to exclude certain aliens in
order to protect important national interests. We would, of
course, wish to review any-such proposal with great care.
Since the Chairman's invitation letter of July 30 also
adverts to possible conflicts between existing United states
immigration laws and the obligations of the United States under
the Helsinki Final Act, I would like to ask that the Committee
accept for the record my February 6, 1986 statement on this
subject before the Congress' Commission on Security and
Cooperation in Europe, as well as the Department's supplemental
answers that were submitted subsequent to the February 6
hearing. in summary, the Department is strongly of the view
that United States immigration laws do not in any way conflict
with our Helsinki obligations.
With the Committee's permission, I will now offer specific
comments on those sections of S. 2263 that are of particular
concern to the Department of State.
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First, the Department of State would strongly oppose
section 2(a)(1) of the bill, which would amend i U.S.C.
1182(a)(27)., if the change is intended to preclude visa denials
for foreign policy reasons. for many years, the Departments of
State and Justice have interpreted section (27) to apply not
only to 'internal security' cases, but also to cases in which
an alien's entry, presence or proposed activities in the United
States could have potentially serious adverse foreign policy
consequences. It has been the Executive's longstanding
interpretation of section (27) that, in the latter class of
cases, the alien's entry, presence or activities could properly
be said to be 'prejudicial to the public interest.' With
respect to concerns about freedom of expression, it is
important to understand that section (27) is invoked only
rarely for foreign policy reasons -- about 15 times during each
of the past several years -- and then only after personal
consideration and decision by the Secretary or one of his
immediate deputies. section (27) is never employed lightly or
to exclude aliens solely or principally because of their
abstract political views. In my experience, every country
reserves to itself the ability to exclude aliens in such cases,
and the Department believes it would be both ill-advised and
contrary to the national interest if the Congress were to deny
such power to the Executive. i should add that the Executive's
interpretation and application of section (27) is currently
under review in several pending court cases.
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Se c_, the Department opposes section 2(a)(2) of the bill,
which would eliminate 8 U.S.C. 1182(a)(28) in its, entirety.
Section (28) is the so-called 'ideological exclusion' provision
of the immigration and Nationality Act of 1952 -- the
McCarran-Walter Act. Because certain subsections of section
(28) exclude aliens merely because of their personal political
views or associations, and because of its identification with
the 'Red scares' of the 1950., section (28) has been the target
of.strong and sustained attack by civil libertarians as being
undemocratic. In the late 1970s, however, Congress devoted
careful attention to section (28) on two separate occasions and
substantially modified its effect with the specific, stated
purpose of 'achieving greater United States compliance with the
provisions of the (Helsinki Final Act).' This was the
so-called (1978) McGovern Amendment, 22 U.S.C. 2691, as
subsequently modified in amendments sponsored by congressman
Solari and Senator Baker.
In practice, however, the effect of the McGovern Amendment
was principally cosmetic, since the Secretary of State had
already been recommending waivers of ineligibility in most
cases covered by the Amendment for many years. Also, the
McGovern Amendment -- unlike S. 2263 -- applies only to
nonimmigrant aliens and only to those aliens who are excludable
under section (28) solely because of 'membership in or
affiliation with a proscribed organization.' (In practice, the
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Department doesn't refuse visas based upon an alien's personal,
abstract beliefs, although it would be theoretically possible
to do so in certain cases.) Moreover, Congress expressly
excluded from the coverage of the McGovern Amendment
'representatives of purported labor organizations in countries
where such organizations are in fact instruments of a
totalitarian state': aliens who are 'member(s], officer(s3,
official(s), representative(s), or spokesm(e)n of the Palestine
Liberation Organization': and, aliens from countries which the
Secretary of State determines 'are not in substantial
compliance with the provisions of the Helsinki Final Act,
particularly the human rights and humanitarian affairs
provisions.'
Although the McGovern Amendment has undoubtedly restricted
the secretary's ability to encourage travel reciprocity with
Communist countries, it has certainly reduced, if not totally
eradicated, the ideological force.of section (28). Thus, as
the law stands today, the only alien nonimpigrants who are
excluded under section (28) solely because of their abstract
political beliefs or associations are those affiliated with the
PLO and certain representatives of communist labor
organizations. From the Department of state's point of view,
therefore, S. 2263'. proposed elimination of section (28) is
unnecessary.
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Apart from the objection that elimination of section (28)
is unnecessary, and putting aside the fact that the section's
elimination would cover intending immigrants as well as
nonimmigranta, the Department's principal objection to this
proposal is that it would deny the United States its existing
ability to exclude under section (28)(P) aliens who we know or
have reason to believe have been personally involved in
terrorism. to this connection, it is imperative to distinguish
current section (28)(F) on the one hand and current sections
(27) and (29) on the other.
Current sections (27) and (29) direct themselves
exclusively to circumstances which the Executive believes would
occur only after the entry of the alien into the United
States. Activities in which an alien may have engaged in the
past have no bearing under either section -- except, of course,
to the extent that the alien's past conduct may provide some
indicia about his possible future behavior. Section 28(r), on
the other hand, directs itself to an alien's past associations
with terrorist organizations or past involvement in terrorist
activities, without regard to the purpose of the alien's
currently proposed travel to the United States. While, as an
abstract matter, some may believe that it is inappropriate to
hold an alien's past activities and associations against him if
his currently proposed purpose of travel is legitimate, the
Department believes it is unwise, undesirable and inappropriate
to ignore past terrorist conduct in determining an alien's
admissibility under the immigration laws.
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For example, as the Department reads S. 2263 it would
eradicate the Executive's existing authority to bar an
otherwise admissible alien from the United States solely on the
ground that the alien is a member of, or affiliated with,
terrorist organizations or has actively participated in
terrorist acts abroad over which the U.S. may not have
jurisdiction. The Department believes it would be wrong to
remove from the law -- as we read S. 2263 to do -- authority to
deny admission to otherwise admissible aliens like those, for
example, whom we know or have reason to believe may, have _
participated in the murders of Leon alinghoffer, Lord Louis
Mountbatten or Swedish Prime Minister Olaf Palms.
before leaving section (28), i should note that the
Department is cognizant of criticisms that have been lodged
against alleged 'humiliating' and 'chilling' delays that
sometimes occur in the waiver process. In this connection, I
am pleased to report that the Department of State and the
Immigration and Naturalization Service entered into an
interagency agreement on March 22 that should substantially
reduce the current waiting time in the vast majority of routine
(28) 'membership or affiliation' cases by delegating to the
Department INS's waiver authority in routine cases. This
agreement should be implemented in the near future.
Finally,. I wish to emphasize that the Department would have
no objection in principle to modifications of current
subsections 28(A) through (E) and (G) through (I) in
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nonimmigrant cases, provided that any such changes would
clearly preserve existing Executive Branch authority to exclude
aliens on purely ideological grounds for important reasons of
state, e.g., our current exclusion of communist labor
representatives and PLO affiliates. Of course, we would wish
to review any legislative proposals in this area with care.
Third, the Department opposes section 2(d) of S. 2263, not
only because it appears unnecessary, but also because the
change could be construed as intending to divest the President
of his current authority under 8 U.S.C. 1182(f) to prohibit, or
impose restrictions upon, the entry into the United States of
all aliens in time of crises.
Fourth,, the Department opposes section 2(e) of S. 2263,
which would add three new subsections to 8 U.S.C. 1182.
Proposed new section (m)(1) would prohibit the denial of a visa
to, or the exclusion from the United States of, an alien on the
basis of any past or expected speech, belief, activity,
affiliation, or membership which, if conducted or held within
the United States by a United States citizen, would be
protected by the First Amendment. This proposed new subsection
would also prohibit the denial of a visa to, or the exclusion
from the United States of, an alien because of the expected
consequences of any activity the alien might engage in, if
engaging in such activity in the United States by a United
States citizen would be constitutionally protected.
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Proposed new subsection (m)(2) would prohibit, on the same
basis, the placing of restrictions on an alien to whom a.visa
had been issued. If adopted, such a provision would, for
example, deny the txe cutive its current ability to restrict
PLO U.N. Observer (Mission personnel to the confines of the
Headquarters District.
Proposed new subsection (m)(3) would authorize any person
in the United States -- citizen or not -- who intends to
communicate with an alien in any fashion to bring a civil
action in federal court against any government official,
including presumably the president, who allegedly violates the
prohibitions contained in proposed subsections (m)(1) and/or
(m)(2).
Both the Secretary of State and the Attorney General have
recently expressed in public fora -- the Secretary in his
January 12 PEN address; the Attorney General in a February 25
address at the National Press Club -- their strong personal
opposition to the denial of nonimmigrant visas to aliens
because of their abstract political beliefs or affiliations.
The Secretary has also made clear that the United States does
not deny visas to aliens because we happen to disagree with
their political views or because they propose to express those
views in the United States. Thus, the Department is in
sympathy with the general intent and purpose of proposed
subsections (m)(1) and (2). On the other hand, we have strong
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reservations about any provisions that would treat aliens as if
they were U.S. citizens and believe that such provisions would
be extremely difficult to administer. For example, would such
provisions.require that we issue visas to aliens like Pol Pot,
Idi Amin, Mu'Ammar Qadhafi, Ayotollah Rohmehni, IRA fund
raisers, PLO activists and others whose presence the executive
or the Congress might find inimical to fundamental United
States interests, notwithstanding that such aliens were coming
for the lawful purpose of making a public speaking tour? Who
would make the decision about whether the alien's past or
intended speech, etc., would meet constitutional muster?
Of special concern to the Department are the potential
adverse consequences of proposed section (m)(3), which would
grant standing to any person in the United States -- alien or
citizen -- who claims that an alien's visa application has been
denied in violation of the prohibitions of proposed section
(m)(2), and that he intended to communicate with the alien on
any subject, public or private, iA any manner, to bring a civil
action in federal court against any official who participated
in the visa denial.
Section (m)(3) would apply without regard to the basis upon
which the alien's visa application had been denied. For
example, an alien applying for a nonimmigrant visa to visit his
relatives in the United States might be refused a visa on the
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ground that he had failed to establish an intent to return to a
foreign residence after the allegedly temporary visit (8 -U.S.C.
S 1184(b)) or that the alien participated in Nazi persecutions
(8 U.S.C. 1182(a)(33)). If that alien's relatives were to
assert, however frivously, that the alien's application had
been denied in violation of proposed section (m)(1), they would
have standing to bring a civil action in federal court against,
inter alia, the consular officer who denied the visa. The
prospects for such harrassing litigation would, the Department
believes, have Ta severe chilling effect upon the aggressive
application of our visa laws by United states consular officers.
Perhaps more significant, proposed section (m) could --
and, in the Department's judgment would -- also form a
springboard for judicial review of visa denials generally, a
development which the Department would strongly oppose. in
April, 1950, the special subcommittee of the Senate Judiciary
Committee that conducted the study which resulted in the
immigration and Nationality Act of 1952 concluded:
... to allow an appeal from a consul's denial of a
visa would be to make a judicial determination of a
right when, in fact, a right does not exist. An alien
has no right to come to the United States and the
refusal of a visa is not an invasion of his rights.
Permitting review of visa decisions would permit an
alien to get his case into United States courts,
causing a great deal of difficulty in the
administration of the immigration laws. 18. Rep. No.
1515, 1st seas. 622 (April 20, 1950)]
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The Department believes that the subcommittee's
conclusions remain valid today, and strongly opposes any
legislative initiative that might open the courthouse
doors to the more than 500,000 aliens who are denied visas
each year -- with all of the expense and additional burden
on the federal judiciary that such an eventuality would
entail.
Fifth, the Department opposes as unnecessary section 4
of S. 2263, which would amend the Passport Act, 22 U.S.C.
211a, to forbid the Secretary of State from denying,
revoking or restricting a passport based on any speech,
activity, belief, affiliation or membership of the citizen
applicant that is protected by the First Amendment.
The constitutionality of the Secretary's passport
authority as it relates to freedom of expression has been
carefully and completely explored by the Supreme Court.
Thus, in the 1958 case of Keennt V. Dulles, 357 U.S. 116,
the Court found that '(t3he right to travel is a part of
the 'liberty' of which the citizen cannot be deprived
without due process of law under the Fifth Amendment.` In
1964, in Aatthhek_ v. secretary, 378 U.S. 500, the Court
emphasized that freedom of travel "is a constitutional
liberty closely related to rights of free speech and
association.* The Court most recently revisited this
issue in its 1986 decision in Haig v. Agee, 453 U.S. 280,
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in which the Court rejected a challenge to the Secretary's
regulations which permit passport restrictions under
certain limited conditions, none of which pertains: to the
citizen's speech, beliefs or associations. Today, the
only country to which passport restrictions apply is
Libya, and even in the case of that country, exceptions
are granted for the media and for humanitarian reasons.
In short, I believe that proposed section 4 would only
muddy the watero in an area that the supreme Court has
worked so hard to clarify.
Sixth, the Department strongly opposes sections. 6 and
7 of S. 2263, which would amend section 203(b) of the
International Emergency Economic Powers Act (IEEPA), 50
U.S.C. 1702(b), and section. $ of the Trading with the
Enemy Act (TWEA), 50 U.S.C. App. 5(b)(1), by eliminating
those.provisions that currently permit the Executive to
prohibit Americans from engaging in financial transactions
incident to (i) travel to, in, or through specified
countries in time of emergency, or (ii) the importation of
informational materials from such countries.
The Department opposes these sections because of the
seriously adverse effect such changes would have on our
ability to pursue vital O.S. interests. Specifically, the
proposals would deny the President the authority during
times of war and national emergency to prevent the flow of
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U.S. currency and other benefits to states with policies
inimical to the United States. Adoption of these sections
would seriously degrade the president's ability to deprive
these states of the financial means to undertake actions
hostile to the United States and other friendly countries.
The proposed sections would also appear to apply to
existing embargoes and would, therefore, seriously
undermine our current policies, particularly with respect
to Cuba'and Libya. both Cuba and Libya would earn
substantial hard currency if travel related transactions
were no longer restricted -- hard currency which would be
used by Cuba to finance the subversion of democracy in
Latin American and the Caribbean and by Libya to carry out
its terrorist activities. Denying this hard currency is
central to U.S. policy towards these countries.
The Department recognizes and shares Congress'
concerns that restrictions on the transactions in question
be imposed only where necessary. We note that the
Administration has, where consistent with U.S. interests,
modified existing embargoes to allow such transactions.
For instance, transactions relating to travel to North
Korea, Vietnam, and Kampuchea are authorized pursuant to
general license, as are transactions relating to travel to
Cuba for, inter site, family visits and news gathering
purposes. Fully hosted travel to Cuba is also permitted.
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A general license has also been issued for humanitarian
reasons authorizing transactions related to travel to and
within Libya by immediate family members of Libyan.
nationals.. furthermore, imports of informational material
for educational or newagathering purposes from these
countries are authorized by general license, and specific
licenses are issued, subject to certain conditions, for
commercial import of such materials.
Seventh, the Department opposes section 9 of S. 2263,
which would amend section 38(a) of the Arms Export Control
Act, 22 O.S.C. I 2778(a), to require that decisions on
issuing certain export licenses take into account the
policy of the United states to sustain vigorous scientific
enterprise and to respect the ability og scientists and
other scholars freely to communicate their research and
findings by means of publication, teaching, conferences,
and other forms of scholarly exchange.'
In the Department's view, section 9 is* unnecessary,
since current law already provides more then adequate
protection to scholars. only communications which are
"directly related' to an item on the munitions list are
governed by the International Traffic in Arms Regulations
(ITAR). Thus, other communications -- including the
export of information containing general scientific,
mathematical or engineering principles as well as material
in the public domain -? are not regulated by the ITAR.
The Department's administration of the ITAR with respect
to the export of technical data 'directly related" to an
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item on the munitions list is fully consistent with
relevant court decisions relating to First Amendment
protection of free expression.
Moreover, the proposed section contains terms which
are vague, and thus potentially inconsistent with United
States policy prohibiting the export of technical data on
the munitions list to the Soviet bloc and other countries
with respect to which the United States maintains an arms
embargo. For example, to the extent that application of
-..---the term 'take into account' would tend to compel the
Department to issue licenses to scholars, the proposed
provision would be inconsistent with the Department's
responsibilities. The terms 'vigorous scientific
enterprise' and 'scholarly exchange' are similarly vague
and could conflict with established United States policy
regarding such matters.
Finally, before concluding I wish to point out that
the Department's numerous objections to S. 2263 are
neither ill-considered or transitory. Indeed, many of our
objections represent the product of more than three years
of intensive discussions and negotiations with interested
sections of the American Bar Association (i.e., the
section of Individual Rights and Responsibilities; the
section on Law and National Security= and, the section on
International Law) concerning issues addressed in the
proposed bill.
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In the face of strong opposition from the ABA sections
on International Law'and Law and National Security, the
section of Individual Rights and Responsibilities withdrew
a proposed. resolution that covered many of the visa and
travel-related matters proposed in S. 2263 and presented
instead a resolution that called only for limited
liberalization of 8 U.S.C. 1182(a)(28). That resolution
was adopted by the ABA Rouse of Delegates at its February
1986 meeting, without federal government opposition. As I
mentioned earlier in my testimony, the Department of State
would not oppose reasonable changes to section (28),
provided that such changes would not weaken the ability of
the United States to combat international terrorism or to
protect other important United States interests.
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