For a Fundamental Freedom

Since 1950, more than 460 Americans (including Paul Robeson and Playwright Arthur Miller) have been refused passports to go abroad. Last week a three-man U.S. Court of Appeals ruled that the Government may not arbitrarily deprive Americans of a fundamental freedom, the right to travel.

The decision was made in the case of Polish-born U.S. Citizen Max Shachtman, 51, onetime friend and agent of Leon Trotsky, national chairman of a U.S. leftist faction: the anticapitalist, anti-Soviet Independent Socialist League. In 1953 Shachtman applied for a passport in order to get material for articles and lectures. During months of tilting with the State Department, he was granted an interview, refused a formal hearing before the Board of Passport Appeals and refused the passport itself. Reason: his league was on the Attorney General's list of subversive organizations. When a U.S. District Court dismissed his complaint last August, Shachtman appealed.

The Government's brief contained some amazing arguments. Samples:

P: "The judiciary has neither control nor review power" over the passport function of the State Department.

P: "The Secretary of State has plenary, complete and unreviewable authority in this field."

P: "It matters not for what reason he refused appellant a passport."

P: "It is he, and he alone, who should have the power to decide the issue."

When the judges asked who could be denied passports, U.S. Attorney Harold Greene hedged: "There is a point where such exercises of power by the Secretary would be considered frivolous . . . for example, if he decided on no passports to anyone who attends baseball games. I couldn't tell you where I would draw the line."

Last week the court drew the line itself. Unanimously, the court struck down the executive claim to plenary powers. "The Government may not arbitrarily restrain the liberty of a citizen to travel," said the decision, written by Circuit Judge Charles Fahy, onetime U.S. Solicitor General. "Discretionary power does not carry with it the right of its arbitrary exercise."

The decision outlined the limits of federal control: "The right to travel . . . is a natural right subject to the rights of others and to reasonable regulation under law. A restraint imposed by the Government of the United States upon this liberty therefore must conform with the provision of the Fifth Amendment that 'No person shall be . . . deprived of . . . liberty . . . without due process of law.' "

This file is automatically generated by a robot program, so reader's discretion is required.