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Oswald stated at once that he was there to renounce hiscitizenship 13 and that "his allegiance was to the Soviet Union." 14He said he had already applied for Soviet citizenship.15 He said heknew the provisions of American law on loss of citizenship and did notwant to hear them reviewed by Snyder.16 Having taken his passport backfrom the receptionist, Oswald put it on Snyder's desk.17 Snydernoticed that Oswald had inked out the portion which would have shownhis address in the United States.18 Oswald also presented Snyder witha note 19 which he had prepared in advance, which reads:
Oswald gave as his "principal reason" for wanting to renounce hiscitizenship, "I am a Marxist." 23 He stated that he admired the systemand policies of the Soviet Union and desired to serve the Soviet
Page 748
State, and that his intent to defect to the Soviet Union had beenformed long before he was discharged from the Marine Corps.24 Shortlyafter the interview, Snyder observed that Oswald had "displayed allthe airs of a new sophomore partyliner." 25 At one point, Oswaldalluded to hardships endured by his mother as a "worker" and said hedid not intend to let this happen to him.26 He stated that his Marineservice in Okinawa and elsewhere had given him a chance "to observeAmerican imperialism," and he displayed some resentment at not havingbeen given a higher rank in the Marine Corps.27 Oswald stated toSnyder that he had voluntarily told Soviet officials that he wouldmake known to them all information concerning the Marine Corps and hisspecialty therein, radar operation, as he possessed.28
Snyder did not permit Oswald to renounce his citizenship at thattime. He told Oswald that his renunciation could not be effected on aSaturday, but that if he would return on a day when the Embassy wasopen for business, the transaction could then be completed.29 Snydertestified that his real reason for delaying Oswald was that hebelieved, as a matter of sound professional practice, that no oneshould be permitted to renounce his American citizenshipprecipitously; such an act has extremely serious consequences, and,once accomplished, it is irrevocable.30 Snyder noticed that Oswald wasyoung, apparently not well educated and obviously in a highlyemotional state.31 Snyder testified: "particularly in the case of aminor, I could not imagine myself writing out the renunciation form,and having him sign it, on the spot, without making him leave myoffice and come back at some other time, even if it is only a fewhours intervening." 32 Snyder's decision was also influenced by hisfamiliarity with a recent unfavorable incident in which an Americancitizen by the name of Petrulli had been allowed to renounce hiscitizenship hastily, without awareness that Petrulli was mentally illat the time.33 Snyder was able to persuade Oswald to tell him his homeaddress and the name of his mother, however, by saying that noprogress on his renunciation could be made without this information.34The State Department has advised that Snyder's treatment of Oswald"was in line ... with the general policy of the Department todiscourage expatriation of American citizens." 35
The same day, the Embassy sent a telegram to the Department ofState, advising that Oswald had appeared there in an attempt torenounce his American citizenship, and setting out most of the detailsof the interview with Snyder.36 Copies were immediately furnished tothe FBI 37 and the CIA.38 The telegram was followed on November 2,1959, by an Embassy report addressed to the Department of State,39which concluded:
Oswald never returned to the Embassy.45 On November 6, 1959, theEmbassy received 46 a handwritten letter from Oswald on the stationeryof the Metropole Hotel, dated November 8, 1959, which read:
On November 16, 1959, Priscilla Johnson, an Americannewspaper-woman stationed in Moscow, interviewed Oswald at theMetropole
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Hotel.52 On November 17, 1959, she informed the Embassy of herinterviews and the information was recorded in a file memorandum.53Oswald told Miss Johnson that he was scheduled to leave Moscow withina few days. She thought that Oswald "may have purposely not carriedthrough his original intent to renounce [citizenship] in order toleave a crack open." 54 The Embassy accordingly informed theDepartment of State about 2 weeks later that Oswald had departed fromthe Hotel Metropole within the last few days.55 According to his"Historic Diary" 56 and other records available to the Commission,57however, Oswald probably did not in fact leave Moscow for Minsk untilabout January 4, 1960. Miss Johnson's report of her interview withOswald was the last information about him which the U.S. Governmentwas to receive until February 13, 1961 58
On March 6, 1960, Oswald's mother asked Representative James C.Wright, Jr., of Texas to help her locate her son. The Congressmanforwarded her inquiry to the Department of State which in turn sentit to the Embassy.59 In response, the Embassy in Moscow informed theDepartment on March 28, 1960, that they had no contact with Oswaldsince November 9, 1959.60 The Embassy went on to say that it had noevidence that Oswald had expatriated himself "other than his announcedintention to do so." It believed, therefore, that since Oswald waspresumably still an American citizen, the American Government couldproperly make inquiry concerning him through a note to the SovietForeign Office. The Embassy went on to suggest, however, that it wouldbe preferable if Oswald's mother wrote a letter to her son which couldthen be forwarded by the Department to the Soviet Government.61
The Department replied on May 10, 1960, that no action should betaken in the case other than on a request voluntarily submitted bymember of Oswald's family.62 On June 22, a second communication wasdispatched, asking whether the Embassy had been able to contactOswald.63 On July 6, 1960, the Embassy replied that it had received nofurther communication with anyone on the subject of Oswald and that inview of the Department's memorandum of May 10, 1960, intended to takeno further action in the matter.64 Mrs. Oswald apparently took nosteps to follow up on her original inquiry.
Under the procedures in effect in 1960, a "refusal sheet" wasprepared in the Department of State Passport Office whenevercircumstances created the possibility that a prospective applicantwould not be entitled to receive an American passport.65 The recordssection of the Passport Office, on the basis of the refusal sheetswould prepare what was known as a lookout card 66 and file it in thelookout file in the Passport Office. Whenever anyone applied for apassport from any city in the world, his application was immediatelyforwarded to this office, and his name and date of birth checkedagainst the lookout file. If a lookout card was found, appropriateaction, including the possible refusal of a passport, was taken.68Passport Office procedures
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also provided that the lookout card would be removed from aprospective applicant's file whenever facts warranted an unquestionedpassport, grant. 69
On March 25, 1960, the Passport Office had made up a "refusalsheet" on Lee Harvey Oswald, typed across which was the explanationthat Oswald "may have been naturalized in the Soviet Union orotherwise ... expatriated himself." 70 An Operations Memorandumstating the reasons for which the card had been prepared was drawn upon March 28 and also put on file 71 and a copy sent to the Embassy. Itadvised the Embassy to take no further action on the Oswald caseunless it came into possession of evidence upon which to base thepreparation of a certificate of loss of nationality. Included in theoperations memorandum was the following:
The State Department has advised the Commission that as of October1959 the Department had "developed information which might reasonablyhave caused it to prepare ... a lookout card for Lee Harvey Oswald."74 The Passport Office employee who prepared the refusal sheet, forOswald has suggested as a possible explanation of the failure toprepare a lookout card that between the day she prepared the refusalsheet and the time the records section would normally have preparedthe lookout card, Oswald's file was temporarily pulled from its placebecause the Department received some additional correspondence fromthe Embassy. When the file was returned, she suggested, it may havebeen assumed that the card had already been prepared. 75
Had a lookout card been prepared on the ground of possibleexpatriation, it would have been removed and destroyed after thedecision was made in 1961 that Oswald had not expatriated himself andthus prior to the time that he applied for a second passport in June1963. Hence, the Department's apparent failure to prepare a lookoutcard on Oswald had no effect on its future actions. As of February 20,1964, the Department issued additional regulations regarding themanner in which the lookout file is to be handled. 76 On March 14,1964, a category was established for returned defectors, so that thesepersons automatically have lookout cards in their files, and on July27, 1964, the Office of Security of the Department of State issued aprocedural study of the lookout-card system, with recommendations. 77RETURN AND RENEWAL OF OSWALD'S 1959 PASSPORT
Negotiations Between Oswald and the Embassy
On February 1, 1961, as a result of a visit by Oswald's mother tothe Department of State on January 25, 1961,78 the Department sent arequest to the Moscow Embassy as follows:
The Embassy is requested to inform the [Soviet] Ministry ofForeign Affairs that Mr. Oswald's mother is worried as to his presentsafety, and is anxious to hear from him.79
The inquiry went to the Embassy by diplomatic pouch and was receivedin Moscow on February 10 or 11.80 On February 13, before the Embassyhad acted on the Department's request,81 the Embassy received anundated letter from Oswald postmarked Minsk, February 5. The letterstated:
On February 28, 1961, the Embassy wrote Oswald that he would haveto come to Moscow to discuss the passport and expatriation matters.85Then on March 20, 1961, a second letter from Oswald, dated March 12,was received by the Embassy. It read:
In the meantime, the State Department was considering the Embassydespatch of February 28, 1961. 70 Although a different, response wasoriginally recommended by a staff member in the Passport Office,91 theDepartment instructed the Embassy on April 13 that for securityreasons Oswald's passport should be given to him only if he personallyappeared at the Embassy and that even then he was to receive thedocument only after a full investigation had been made and the Embassywas satisfied that he had not, renounced his American citizenship.Also, he was to present evidence that he had made arrangements todepart from the Soviet Union to travel to the United States, and hispassport was to be stamped valid for direct return to the UnitedStates only. The Department also told the Embassy that Oswald couldnot be advised whether or not he would be prosecuted for any possibleoffenses should he return to the United States.92 Matters remained inthis posture for over a month. During the interim, Oswald met andmarried Marina Nikolaevna Prusakova.93
On May 26, 1961, the Embassy sent a despatch to the Department 94advising that on May 25, 1961, it had received a letter from Oswald
Page 754
postmarked Moscow, May 16, 1961.95 In his latest letter Oswald said hewanted "to make it clear"" that he was asking for full guarantees thathe would not be prosecuted "under any circumstances" should he returnto the United States. Oswald went on to say that if the Embassy couldnot give him these assurances, he would "endeavor to use my relativesin the United States, to see about getting something done inWashington" He also informed the Embassy that he was married to aRussian woman who would want to accompany him back to his nativecountry, and he once again repeated his reluctance to come to Moscow.The Embassy suggested that it reply to Oswald by repeating that thequestion of citizenship could only be made on the basis of a personalinterview, and by advising Oswald of the requirements and procedurespertaining to his wife's immigration. The despatch noted that Oswald'sletter referred to his present Soviet internal passport in which heclaimed to be designated as "without citizenship," and observed: "Itwould appear on this basis that Oswald has not yet expatriated himselfunder Section 349(a)(1) of the Immigration and Nationality Act." TheEmbassy inquired whether the Department considered Oswald entitled "tothe protection of the United States Government while he continues toreside abroad under present circumstances in the absence of reasonableevidence that he has committed an expatriating act?"
The Department answered the despatch under date of July 11, 1961.It said that it was not entirely clear what the description "withoutcitizenship" means, i.e., "whether he is without Soviet citizenship orwithout any citizenship." The instructions continued:
Page 755
According to a memorandum which Snyder prepared shortly afterwards:
During the course of the interview Oswald filled out anapplication for renewal of his American passport.101 The renewalapplication was required since Oswald's existing passport wouldexpire on September 10, 1961,102 and it was extremely unlikely that hewould be able to obtain the requisite Soviet departure documentsbefore that time. The renewal application contained a printedstatement which set forth, in the disjunctive, a series of acts which,if committed by the applicant, would either automatically disqualifyhim from receiving a passport on the ground that he had lost hisAmerican citizenship, or would raise a question whether he might be sodisqualified. The printed statement was preceded by two phrases,"have," and, "have not," the first phrase being printed directly abovethe second. One carbon copy of the application indicates Oswald signedthe document after the second phrase, "have not," had been typed over,thereby apparently admitting that he had committed one or more of theacts which would at least raise a question as to whether he hadexpatriated himself. Snyder was not able to remember with certainty towhich of the acts listed on the statement Oswald's mark was intendedto refer, but believed it may have been to "swearing allegiance to aforeign state." 103 He points out that the strikeout of "have not" mayalso have been a clerical error.104 On the actual signed copy of theapplication kept in the
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files of the Moscow Embassy, which is not a carbon copy of the copysent to the Department, the strikeout is slightly above the "have;"therefore, since the "have" is itself printed above the "have not,"the strikeout may have been intended to obliterate the "have." 105
In any event, Oswald filled out the supplementary questionnairewhich was required to be completed if the applicant admitted he hadperformed one or more of the possibly expatriating acts. He signed thequestionnaire under oath.106 Snyder testified that it was routine forany kind of "problem case" to fill out the supplementaryquestionnaire.107 The Passport Office employee who processed theOswald case in Washington testified that she routinely regarded thequestionnaire rather than the application itself as the controllingdocument for expatriation purposes, so that she probably paid noattention to the strikeout.108
The pertinent questions included on the questionnaire, withOswald's answers, read as follows:
On the basis of these answers, and on the basis of the statementsOswald made orally during the interview, Snyder concluded that Oswaldhad not lost his citizenship. Snyder therefore handed him back hispassport. Pursuant to the instructions from Washington, it wasstamped, "This passport is valid only for direct travel to the UnitedStates." 110
In a despatch dated July 11, 1961,111 the Embassy informed theDepartment of State of its conclusion that Oswald had not lost hisAmerican citizenship and requested that, if Washington agreed with theconclusion, "the Embassy be authorized to renew Oswald's passport atits discretion." The despatch, with which Oswald's application andsupplemental questionnaire 112 were enclosed, informed the Departmentthat Oswald was questioned at length at the Embassy and that noevidence was revealed of any act which might be considered as havingcaused the loss of his American citizenship.
The Embassy added in the despatch--
Based upon Snyder's recommendation and the information in itsfiles, the passport Office on August 18, 1961, concluded that Oswaldhad not expatriated himself.116 Therefore, on that date, theDepartment of State sent a despatch to the Embassy in Moscow statingthat they concurred in the Embassy's recommendation of July 11, 1961,with respect to Oswald's citizenship:
The decision that Oswald was entitled to a new passport because hehad not expatriated himself was made for the Embassy by the consul,Richard E. Snyder.123 For the Department it was made initially by MissBernice L. Waterman, a worker in the Passport Office for 36 years, andwas then approved by her area chief, by the head of the ForeignOperations Division, and by the Legal Division of the PassportOffice.124 Snyder and Miss Waterman have both testified that theyreached their decisions independently and without influence from anyother person.125 The Director of the Passport Office and the LegalAdviser to the State Department both stated that after a review of therecord they concluded that Oswald had not expatriated himself and thatSnyder and Waterman, therefore, acted correctly.126
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Legal Justification for the Return and Reissue of Oswald's Passport
Since he was born in the United States, Oswald was an Americancitizen.127 However, Congress has provided that by performing certainacts, a person may forfeit his American citizenship. Thus Oswald wouldhave become expatriated while in Russia if he obtained naturalizationin the Soviet Union, renounced U.S. nationality, took an oath ofallegiance to the Soviet Union, or voluntarily worked for the SovietGovernment in a post requiring that the employee take an oath ofallegiance.
Naturalization in a foreign state.--Section 349(a)(1) of theImmigration and Nationality Act of 1952 provides that a U.S. citizenshall lose his nationality by "obtaining naturalization in a foreignstate upon his own application ... " 128 Although Oswald appliedfor Soviet citizenship, he never received it.129 Thus, Oswald did notexpatriate himself under section 349 (a) ( 1 ).
Formal renunciation of U.S. nationality.--Section 349 (a) (6) ofthe act provides that a U.S. citizen shall lose his citizenship by:
Though in 1959 Oswald clearly stated to officials at the AmericanEmbassy, both orally and in writing, that he desired to renounce hisU.S. citizenship, he at no time took the steps required by the statuteand regulations to effect his renunciation. Oswald did not execute theproper forms, he did not sign his letter of October 31 or November 3,1959, in the presence of a consular official, and neither letter wassigned by such an official.133 Because section 349 (a) (6) in termsrequires compliance with the form prescribed by the Secretary ofState, Oswald did not expatriate himself under that section.
Oath of allegiance to a foreign state.--Section 349(a)(2) of the actprovides that a U.S. citizen shall lose his nationality by:
In his letter of October 31, 1959, Oswald wrote: "I affirm that myallegiance is to the union of Soviet Socialist Republics." 135 Both inthis letter and in his letter of November 3, 1959, he stated that hisapplication for citizenship in the Soviet Union was pending before theSupreme Soviet of the U.S.S.R.136
Oswald's letters no doubt were intended to express allegiance tothe Soviet Union in a manner inconsistent with continued allegiance tothe United States, as the statute has been held to require.137However, since 1940, it has been well established that in order for anoath of allegiance to a foreign state to work an expatriation from theUnited States, it must, be given to an official of the foreign state,and not to a party unconnected with the foreign state.138 Thisrequirement can be viewed as a necessary corollary of the broader, butless clearly established, principle that the oath must be taken inaccord with the requirements of the foreign state.139 Although LeeHarvey Oswald wrote that his allegiance was to the Soviet Union,140there is no indication that he had ever actually taken an oath ordeclaration or that any such oath was taken before an official of theSoviet Government. He, therefore, did not expatriate himself undersection 349 (a) (2).
Employment under the government of a foreign state.--Section349(a) (4) of the Immigration and Nationality Act of 1952 providesthat a U.S. citizen shall lose his nationality by:
The Commission therefore concludes that Lee Harvey Oswald had notexpatriated himself by any acts performed between October 16, 1959,and May 1962, and concurs in the opinion of the State Department thathis passport was properly returned to him in July 1961 and properlyreissued in May 1962.
Page 761AUTHORIZATION FOR MARINA OSWALD TO ENTER THE UNITED STATES
Negotiations Between Oswald and the Embassy
On July 11, 1961, Oswald and his wife appeared at the Embassy inMoscow before John A. McVickar.145 Together they executed papers toset in motion the procedures for her admittance to the United Statesas a nonquota immigrant under the provisions applicable to the wife ofan American citizen.146 The interview was routine. McVickar askedMarina whether she was a member of any Communist organization and shereplied that she was a member of the Trade Union of Medical Workers147 but she denied she was or ever had been a member of theKomsomol,148 the Communist youth organization, or any other Communistorganization.149 Marina Oswald has since admitted to the Commissionthat at one time she was a member of the Komsomol, but was expelled,according to her testimony, when it was learned that she intended toaccompany her husband to the United States.150 The Embassy forwardedthe papers pertaining to her application to the State Department onAugust 28, 1961.151
Marina Oswald's ability to obtain a nonquota immigrant visadepended on the favorable resolution of 3 questions. First, it had tobe determined that she was the wife of an American citizen,152 whichdepended on whether her husband had expatriated himself. Second, itwas necessary to determine that she was not and had not beenaffiliated with a Communist organization on other than an involuntarybasis.153 Third, it had to be determined that she was not likely tobecome a public charge after she was admitted to the United States.154Section 243 (g) of the Immigration and Nationality Act 155 presented afourth issue. This section of the act prohibits the issuance ofimmigrant visas by American Consuls stationed in countries which haverefused to accept or have unduly delayed accepting the return ofpersons sought to be deported from the United States. The Soviet Unionhad been designated as such a country in 1953. However, the sanctionsof section 243 (g) are often waived; and even if they were not waivedin Marina's case, she could obtain her visa at an American Embassy insome other country on her way from the soviet Union to the UnitedStates, if she were otherwise entitled to the visa.156
In a despatch dated August 28, 1961, the Embassy requested fromthe Department a security advisory opinion on Marina Oswald'sapplication to enter the United States. The Embassy wrote:
The Department initiated a check on Marina Oswald with the CIA, theFBI, the Department's own Office of Security, and Passport Office.158The security check turned up no derogatory information on her, so thatin early October 1961 the Department cabled Moscow that theavailable information concerning the applicant established hereligibility to enter the country as a nonquota immigrant.159
The Department's decision assumed that prior to obtaining her visato enter the United States, Marina Oswald would provide somereasonable assurance that she was not likely to become a publiccharge after she had arrived there. The Department later encounteredsome difficulty in deciding that she had met this requirement. Sheknew no one in the United States other than the members of herhusband's family, and they lacked the means to furnish any substantialfinancial guarantees. After considerable correspondence on the matterwith Oswald 160 and with the Department,161 the Embassy decided toaccept Oswald's own affidavit to support his wife as sufficientassurance that she would not become a public charge. The Embassy'sreasons were set forth in a memorandum dated March 16, 1962:
By law the Attorney General must also pass upon an app1icant'seligibility, and this responsibility has been delegated to theDistrict Directors of the Immigration and Naturalization Service.164The machinery to get approval of the Immigration and NaturalizationService for Marina Oswald's admission to the United States was set inmotion on October 6, 1961. On that date the Visa Office of theDepartment of State sent a letter to the District Director of theImmigration and Naturalization Service in Dallas, Tex., requesting theService to take action on her immigrant visa.165 The lettertransmitted her marriage certificate, a check for $10 from Lee HarveyOswald, and a "Petition to Classify Status of Alien For Issuance ofImmigrant Visa." The petition was signed by Oswald and was on
Page 763
behalf of Marina, asking that she be classified in "the status of thealien beneficiary for issuance of an immigrant visa as ... thespouse of a United States citizen." 166 The letter from the VisaOffice stated:
On January 25, 1962, the results of the field investigation inDallas were consolidated in a report 172 which, with a coveringmemorandum,173 was sent to the District Director of the Service in SanAntonio the next day. The accompanying memorandum noted that theimmigrant inspector who processed the case had endorsed it "approved,"but the author of the memorandum overruled the decision of theinspector on the grounds that the sanctions under section 243(g)should not be waived.174 The reasons for denying the waiver werestated as follows:
San Antonio forwarded its decision to Washington in a letter datedJanuary 31, 1962, in which Marina Oswald's petition and all the
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aforementioned memoranda and reports were included.178 However,because Washington had previously indicated its impatience at not yethaving received anything on the Oswald case, the San Antonio officealso telegraphed its decision to Washington about a week later,179 thetelegram presumably being received by Washington before the letter ofJanuary 31. The Washington copy of this telegram has a handwrittennote on the lower portion which indicates that on February 12 anofficer in the Visa Office of the State Department informed theImmigration and Naturalization Service by telephone: "Political deskof opinion, we're better off with subject in U.S. than in Russia."
Nonetheless, the Washington office of the Service concurred in thefield decision that the provisions of section 243(g) should not bewaived.181 However, the Washington office pointed out that thecorrect disposition should be not to deny the visa petition as the field offices had proposed, but to grant the petition and indorse itto read, "Waiver of sanctions imposed under section 243 (g) of the Actis not authorized." 182
On February 28, 1962, the Dallas office of the Immigration andNaturalization Service notified the Department of State in Washingtonand the American Embassy in Moscow of this disposition. Thecommunication from the Dallas office noted that Oswald "has beennotified at his Minsk, Russia, address of the approval of the petitionin his wife's behalf." 183 Oswald later told the Embassy that he hadreceived the notice on March 15.184 On March 9, 1962, the Departmentof State also notified the Embassy in Moscow that Oswald's wife wasentitled to nonquota status but that the Immigration andNaturalization Service would not waive section 243 (g) of the Act. TheEmbassy was told to inform Oswald of this fact if he asked about it.The memorandum indicated that the Embassy might suggest that Marinacould proceed to some other country to file her visa application andthus avoid the sanction.185
The Moscow Embassy on March 16, 1962, asked the Embassy atBrussels if Mrs. Oswald could obtain her visa in Brussels.186 TheBrussels Embassy replied affirmatively and said a visa could be issuedto Marina within 2 or 3 days of her arrival.187 The Marina Oswald fileaccordingly was sent to the Embassy at Brussels.188
The plan to obtain the visa in Belgium was rendered unnecessary,however, when the Immigration and Naturalization Service reversed itsposition regarding the waiver of section 243(g). On March 16, theSoviet desk at the Department of State took initial action to attemptto secure such a change by sending a memorandum to the Visa Officewithin the Department, urging that the Immigration and NaturalizationService be asked to reconsider its decision.189 According to thismemorandum:
The Visa Office first contacted the Washington office of theImmigration and Naturalization Service informally, and was advised,cording to a contemporaneous notation:
from the Soviet Union as soon as possible, I request that the section243 (g) sanction be waived in Mrs. Oswald's case.193
The Immigration and Naturalization Service ultimately reversed itsoriginal position and granted the waiver on May 9, 1962. The letterreversing its initial decision states that the matter has been"carefully reviewed in this office" and that "in view of the strongrepresentations" made in the letter of March 27, the sanctions imposedpursuant to section 243 (g) were thereby waived in behalf of Mrs.Oswald.194
Actually, the Office of Soviet Affairs had informally learned onMay 8 that the May 9 letter would be signed by the Immigration andNaturalization Service.195 On the strength of the assurance that awritten reversal would be forthcoming immediately, the StateDepartment quickly telegraphed the Moscow Embassy reporting that thewaiver had been granted.196 Marina Oswald completed her processingwhen she, her husband, and daughter came to Moscow in May 1962 ontheir way from Minsk to the United States.197
Legal Justification for the Decisions Affecting Marina Oswald
Wife of a citizen of the United States.--Section 205 of theImmigration and Nationality Act of 1952 provides for the admissioninto the United States of persons married to American citizens.198Once it was determined that Lee Harvey Oswald was born in the UnitedStates 199 and had not expatriated himself, his American citizenshipwas established. Marina Oswald submitted a marriage certificate toshow that she was his wife.200 This requirement was, therefore,satisfied.
Assurance that Marina Oswald would not become a publiccharge.--Section 212(a) (15) of the act provides that aliens will notbe admitted to the United States if, in the opinion of the responsibleGovernment official, they "are likely at any time to become publiccharges." 201 The pertinent Department of State regulations providethat a determination to exclude an alien for this reason must be"predicated upon circumstances which indicate that the alien willprobably become a charge upon the public after entry into the UnitedStates." 202
In 1962, Oswald was 22 years old and in good health. He had livedin the United States for 17 years before joining the Marine Corps andwas, therefore, familiar with its language and customs. He had gainedjob experience by working 2½ years in a factory which producedelectronic equipment. Under these circumstances the Department was notunreasonable in concluding that Oswald's own affidavit that he wouldsupport his wife was sufficient assurance that she was not likely tobecome a charge upon the public after her entry into the UnitedStates. The receipt of the affidavit from Marguerite Oswald's employerprovided a possible alternative basis for reaching this decision, butsince a favorable ruling had already been made on the basis ofOswald's affidavit, the Embassy had no reason to consider thesufficiency of the second affidavit.
Page 767
Membership in a Communist organizationn.--Under section 212(a) (28)of the Immigration and Nationality Act, an alien will not be admittedto the United States if he is or was a member of, or affiliated with,a Communist organization unless:
Although Marina Oswald declared that she was not a member of theKomsomol or any other Communist organization, she was in fact a memberof the Komsomol, the Communist youth organization.206 If this fact hadbeen known to the State Department, Marina Oswald would notnecessarily have been denied a visa, although a careful investigationinto the nature of the membership would have been required.207However, had her membership in the Komsomol become known to theDepartment after her denial of such membership, it is possible thatshe would have been excluded from the United States on the ground ofhaving willfully misrepresented a material fact.208
Judicial decisions are not in agreement as to what constitutes a"material fact" such that its intentional misrepresentation warrantsexclusion of the alien.209 Some cases indicate that amisrepresentation in an application for a visa involves a materialfact even if the alien would not definitely have been excluded on thetrue facts; 210 others hold that a misstatement is material only if itreferred to such facts as would have justified refusing the visa hadthey been disclosed.211 The Visa Office of the Department of State hasannounced that it applies a "rule of probability" under which amisstatement will be deemed ma-
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terial only if it concealed facts which probably would have resultedin a denial of a visa.212
Waiver of the provisions of section 243 (g).--Section 243 (g) ofthe Immigration and Nationality Act of 1952, by its terms, preventedissuance of a visa to Marina Oswald by the Moscow Embassy. The sectionprovides that upon notification of the Secretary of State by theAttorney General that a country has refused or unduly delayed theacceptance of a deportable alien from the United States who is asubject or was a resident of that country, consular officers in suchcountry are not to issue visas to citizens of the country. The sectionhad been invoked against Russia on May 26, 1953. Nonetheless, althoughsection 243 (g) does not contain an express provision for waiver, theJustice Department has concluded that the Attorney General possessessuch waiver powers.213 Pursuant to this decision, the Department hasgranted waivers in over 600 cases from the Soviet Union since 1953.214The waiver procedures followed in 1962 were prescribed by theImmigration and Naturalization Service. The relevant provision reads:
Because Lee Harvey Oswald signed the petition on Marina's behalf,his character was relevant to whether the sanctions of section 243 (g)could be waived for her. The file on Lee Harvey Oswald which wasmaintained by the Department of State and made available to theDepartment of Justice for purposes of passing on his wife'sapplication contained the facts relating to Oswald's attemptedexpatriation. However, despite the derogatory material in the Oswaldfile, the Im-
Page 769
migration and Naturalization Service regulations did not requireautomatic denial of the waiver; they provided only that if adversesecurity information were developed, "the visa petition shall beprocessed on its merits and certified to the regional commissioner fordetermination whether the sanctions should be waived." This procedurewas followed in Marina's case and the factors considered in reachingthe decision do not appear to be inappropriate. The State Departmentsuccessfully urged that the original decision of the Immigration andNaturalization Service be reversed because this would be in the bestinterests of future United States dealings with the Soviet Union onbehalf of American citizens, and because it seemed unfair to punishLee Harvey Oswald's wife and baby for his own earlier errors.218Prevention of the separation of families is among the most commonreasons underlying the frequent waivers of section 243 (g).219OSWALD'S LETTER TO SENATOR TOWER
Sometime shortly before January 26, 1962, an undated letter fromLee Harvey Oswald was received in the office of the U.S. Senator fromTexas, John G. Tower.220 The letter reads as follows:
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with the caseworker on the Oswald case. She made a memorandum of thecall which notes, "Senator should not become involved in suchcase--therefore State will report to us the course which they followregarding Lee Harvey Oswalt [sic]." 223 About a week later theDepartment of State forwarded to Senator Tower copies of some of thecorrespondence which the Department had with Oswald and informedthe Senator that if he wished to be kept informed on furtherdevelopments regarding Oswald he could contact the Department ofState.224 Neither the Senator nor any member of his staff contactedthe Department again nor did they take any other action in respect tothe matter.225
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THE LOAN FROM THE STATE DEPARTMENT
In a letter dated January 5, 1962, Oswald said that he would liketo make arrangements for a loan from the Embassy or some privateorganization for part of the airplane fares.226 The Embassy onFebruary 6, 1962, replied that he would have to supply certainpersonal and financial data.227 The letter also said that afterrepatriation he would not be furnished a passport for travel abroaduntil he had repaid the money.
Between February 6, 1962, and May 1, 1962, Oswald attempted tosecure a loan from the Red Cross 228 and the International RescueCommittee 229 in the United States. The State Department on February 1 wrote Oswald's mother a letter asking whether she could advance themoney.230 Oswald later wrote both his mother and the Departmentadvising each that his mother should not be bothered in reference tothe loan.231 Ultimately, after an exchange of communications betweenthe Embassy and Washington,232 the Department approved a loan toOswald for passage to New York only, directing the Embassy to "Keepcost minimum." 233 On June 1 Oswald signed a promissory note for$435.71.234
Statutory authority for making such a loan was conferred by title5, section 170 (a), of the U.S. Code, which authorizes the Secretaryof State to "make expenditures, from such amounts as may bespecifically appropriated therefore, for unforeseen emergencies arisingin the diplomatic and consular service." Since 1947, the Department ofState's annual appropriation act has included a sum for expensesnecessary "to enable the Secretary of State to meet unforeseenemergencies arising in the Diplomatic and Consular Service." 235In recent years, the accompanying reports submitted by theAppropriations Committee of the House of Representatives have stated,"These funds are used for relief and repatriation loans to the U.S.citizens abroad and for other emergencies of the Department." 236 Outof the amount appropriated to meet unforeseen emergencies arising inthe Diplomatic and Consular Service, the Secretary of State hasannually allotted approximately $100,000 to meet the expenses ofindigent U.S. nationals, including those in the Soviet Union, whorequest
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repatriation loans. From 1959 to 1963, 2,343 such loans weregranted.237
Section 423.2-1 of the Department's regulations provides thatrepatriation loans may be granted only to destitute U.S. nationals:
Regulations further provide that repatriation loans are authorizedfor the alien, wife, and children of the U.S. national receiving arepatriation loan in order to avoid the division of families.242However, loans are limited
According to its own procedures the Department of State shouldhave prepared a lookout card for Oswald in June 1962 when he receivedthe proceeds of the loan.246 The promissory note which he signedcontained a provision stating,
On June 1, 1962, the same day that Oswald received his loan fromthe State Department, he and his family left Moscow by train destinedfor Rotterdam, The Netherlands.249 They boarded the SS Maasdam atRotterdam on June 4 and arrived in New York on June 13, 1962.250 TheEmbassy sent word of the Oswalds' departure to the Department of Statein Washington on May 31.251 Consistent with its prior practice ofkeeping the Federal security agencies informed of Oswald'sactivity,252 the Department notified the FBI.253
Frederick J. Wiedersheim, an officer of the Immigration andNaturalization Service in New York, interviewed the Oswalds upon theirentry into the United States at Hoboken, N.J., on June 13, 1962, butmade no written report. Mr. Wiedersheim recalled that he asked theOswalds various questions which would determine the eligibility ofboth Oswald and Marina to enter the United States. The questionsincluded whether Oswald had expatriated himself and whether Marinabelonged to any Communist organization which would bar her entry.These questions were answered in ways which did not appear to raiseany problems and therefore the Oswalds were admitted.254
After his reentry, Oswald repaid his loan without having to bereminded by the Department to do so. The early payments were verysmall because he first repaid the approximately $200 he had borrowedfrom his brother Robert to apply against the expenses of his travelfrom New York to Fort Worth, Tex.255 The schedule of payments is asfollows:
ISSUANCE OF A PASSPORT IN JUNE 1963
On June 24, 1963, Oswald applied for a U.S. passport at thePassport Office in New Orleans, La.257 He said he was planning tovisit England, France, Holland, U.S.S.R., Finland, Italy, and Poland,and that he intended to leave the country sometime during November orDecember 1963 by ship from New Orleans.258 He stated further that
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he was married to a person born in Russia who was not an Americancitizen. For occupation, The word "Photographer" was inserted on theapplication.259
On the same day a teletype was sent to Washington containing thenames of 25 of the persons who applied for passports on that date inNew Orleans, Oswald's name among them. On the right side of theWashington Passport Office copy of the teletype message, approximatelyparallel to his name, are the letters, "NO," written in red pencil.260Oswald was issued a passport on June 25, 1963.261
Since there was no lookout card on Oswald, the passport wasprocessed routinely. Twenty-four hours is the usual time for routinelygranted passports to be issued.262 The handwritten notation, "NO,"which appeared beside Oswald's name on the list of applicants from NewOrleans, is a symbol for the New Orleans Passport Office that isroutinely placed on incoming teletype messages by anyone of a group ofpersons in the teletype section of the Passport Office.263 No onelooked at Oswald's file previously established with the Department.264The Department, however, has informed the Commission that at the timethe passport was issued there was no information in its passport orsecurity files which would have permitted it to deny a passport toOswald.265 No lookout card should have been in the file based uponthe Moscow Embassy's memorandum of March 28, 1960, which drewattention to Oswald's intention to expatriate himself, because thesubsequent determination that Oswald had not expatriated himself wouldremove expatriation as a possible ground for denying him apassport.266 And by January 29, 1963, the repatriation loan had beenrepaid, so a lookout card should not have been in the file on thatbasis.267
Oswald was entitled to receive a passport in 1963 unless he camewithin one of the two statutory provisions authorizing the Secretaryof State to refuse to issue it.268 Section 6 of the SubversiveActivities Control Act of 1950, which has recently been declaredunconstitutional,269 then provided:
Since there is no evidence that Lee Harvey Oswald was a member of theAmerican Communist Party or any other organization which had beenrequired to register under section 7 of the Subversive ActivitiesControl Act,272 a passport could not have been denied him undersection 6.
Section 215 of the Immigration and Nationality Act provides that,while a Presidential proclamation of national emergency is in force,
The most likely ground for denying Oswald a passport in 1963,however, was provided by subsection (c) of the regulation quotedabove, which requires the denial of a passport when the Secretary of
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State is satisfied that the applicant's "activity abroad would ...otherwise be prejudicial to the interests of the United States." In1957 the State Department described to the Senate Foreign RelationsCommittee one category of persons to whom it denied passports underthis provision:
However, in 1958 the Supreme Court had decided two cases whichrestricted the Secretary of State's authority to deny passports. InKent v. Dulles 283 and Dayton v. Dulles,284 the Supreme Courtinvalidated a State Department regulation permitting the denial ofpassports to Communists and to those "who are going abroad to engagein activities which will advance the Communist movement for thepurpose, knowingly and willfully of advancing that movement," on theground that the regulation exceeded the authority Congress had grantedthe Secretary. The Kent opinion stressed the importance to be attachedto an individual's ability to travel beyond the borders of the UnitedStates:
The Department, though publicly declaring that these decisions hadlittle effect upon its broadly worded regulation,286 in practicedenied passports only in limited situations. In 1963 the Departmentdenied passports only to those who violated the Department's travelrestrictions, to fugitives from justice, to those involved in usingpassports fraudulently, and to those engaged in illegal activityabroad or in conduct directly affecting our relations with aparticular coun-
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try.287 Passports were granted to people who the Department might haveanticipated would go abroad to denounce the United States, and to aprior defector.288 State Department officials believed that in view ofthe Supreme Court decisions, the Department was not empowered to denyanyone a passport on grounds related to freedom of speech or topolitical association and beliefs.289
Since Oswald's citizenship was not in question and since there wasno indication that he would be involved in illegal activity abroad,the only grounds upon which a passport might have been denied Oswaldwould have fallen within the area of speech or political belief andassociation. The Commission therefore concludes that the Departmentwas justified in granting a passport to Oswald on June 25, 1963.
Return to Top
VISIT TO THE RUSSIAN EMBASSY IN MEXICO CITY
In October 1963, the Passport Office of the State Departmentreceived a report from the Central Intelligence Agency that Oswald hadvisited the Soviet Embassy in Mexico City.290 The report said nothingabout Oswald's having visited the Cuban Embassy in Mexico City, a factwhich was not known until after the assassination. Upon receipt of theinformation the passport file on lee Harvey Oswald was reviewed by thePassport Office.291 The CIA communication and the passport file wereread by an attorney and a supervisory attorney in that office whofound no basis for revoking Oswald's passport or for notifying the FBIor CIA that Oswald had been issued a new passport in June 1963.292 TheDepartment has informed the Commission that, "since the reportindicated no grounds for determining Oswald was ineligible for apassport, a determination was made that no action by the passportoffice was required." 293 Travel to Russia was not proscribed in 1963.Moreover, the Soviet Union was one of the countries Oswald had listedon his passport application. Hence, the Commission agrees thatOswald's taking steps to enter the Soviet Union in 1963 was not asufficient reason to revoke his passport.
Investigation of Oswald's complete dealings with the Department ofState and the Immigration and Naturalization Service reveals noirregularity suggesting any illegal actions or impropriety on the partof government officials. The Commission believes, however, that in ap-
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plying its own regulations the Department should in all cases exercisegreat care in the return to this country of defectors such as Oswaldwho have evidenced disloyalty or hostility to this country or who haveexpressed a desire to renounce their U.S. citizenship and that, whensuch persons are returned, procedures should be adopted for the betterdissemination of information concerning them to the intelligenceagencies of the Government. The operation of the "lookout card" systemin the Department of State was obviously deficient, but since thesedeficiencies did not affect Oswald or reflect any favoritism orimpropriety, the Commission considers them beyond the scope of itsinquiry.
Especially while he was in the Soviet Union, Oswald's manner toGovernment personnel was frequently insulting and offensive. As one1962 communication between the Embassy and the Department of Stateobserved, "It is not that our hearts are breaking for Oswald. Hisimpertinence knows no bounds." 295 Nonetheless, the officials of theU.S. Government respected Oswald as a troubled American citizen andextended to him the services and assistance for which the agencies ofgovernment have been created. Though Oswald was known to be "anunstable character, whose actions are highly unpredictable," 296 therewas no reasonable basis in 1961 and 1962 for suspecting that upon hisreadmittance to the country he would resort to violence against itspublic officials. The officers of the Department of State and theImmigration and Naturalization Service, acting within the properlimits of their discretion, concluded that Oswald's return to theUnited States was in the best interests of the country; it is onlyfrom the vantage of the present that the tragic irony of theirconclusion emerges.
Go to theFootnotes for this chapter
TopJFK Assassination Records
Appendix 15
Appendix 15: Transactions Between Lee Harvey Oswald and Marina Oswald, and the U.S. Department of State and the Immigration and Naturalization Service of the Department of Justice
- Introduction
- Issuance of Passport in 1959
- Oswald's Attempts to Renounce his U.S. Citizenship
- Return and Renewal of Oswald's 1959 Passport
- Authorization for Marina Oswald to Enter the United States
- Oswald's Letter to Senator Tower
- The Loan from the State Department
- Oswald's Return to the United States and Repayment of his Loan
- Issuance of a Passport in June 1963
- Visit to the Russian Embassy in Mexico City
- Conclusion
From September 4, 1959, when he applied for his first passport,until shortly before the assassination, Lee Harvey Oswald had numerousdealings with the U.S. Department of State in Washington and with theAmerican Embassy in Moscow. In connection with Marina Oswald's entryinto the United States, the dealings also extended to the Immigrationand Naturalization Service of the Department of Justice. During thecourse of these dealings, the Department of State and the Immigrationand Naturalization Service were called upon to decide a series oflegal and administrative questions which arose under the laws of thiscountry. In order to determine whether Lee Harvey Oswald or his wifereceived any treatment not accorded others in similar positions, theCommission has examined the manner in which the transactions with theOswalds were handled and the manner in which the relevant legalquestions were resolved. In light of the facts then available and theapplicable statutes, regulations, and practices in force at the time,the Commission has found no indication that the treatment accorded theOswalds was illegal or different in any respect from the treatmentthat other persons similarly situated would have received.
ISSUANCE OF PASSPORT IN 1959On September 4, 1959, while on active duty with the U.S. MarineCorps, Oswald applied for a passport before a clerk of the superiorcourt at Santa Ana, Calif.1 On the application Oswald stated that heintended to leave the United States for 4 months on approximatelySeptember 21, 1959, by ship from New Orleans, La., and that thepurposes of his trip would be to attend the Albert Schweitzer Collegein Switzerland 2 and the University of Turku in Finland, and to visitCuba, the Dominican Republic, England, France, Switzerland, Germany,Finland and Russia as a tourist. With the application, Oswaldsubmitted a statement signed by a Marine officer that he was to bedischarged from the Corps on September 11, 1959.3 The passport, No.1733242, was routinely issued on September 10, 1959.4 At the time, theUnited States proscribed travel to none of the countries named inOswald's application.
Page 747OSWALD'S ATTEMPTS TO RENOUNCE HIS U.S. CITIZENSHIPAmerican officials in Moscow had no knowledge that Oswald was inRussia until October 31, 1959,5 more than 2 weeks after he hadarrived, since he failed to register at the U.S. Embassy, as Americanstraveling through Russia normally did.6 However, on October 31, 1959,a Saturday, Oswald presented himself at the American Embassy inMoscow.7 He placed his passport on the receptionist's desk andinformed her that he had come to "dissolve his American citizenship."8 She immediately summoned the consul, Richard E. Snyder, who invitedOswald into his office.9 In the room with Snyder was his assistant,John A. McVickar, who observed what ensued.10 Snyder recalled Oswaldas "neatly and very presentably dressed," 11 but he also rememberedhis arrogance. Oswald seemed to "know what his mission was. He tookcharge in a sense, of the conversation right from the beginning." 12
Oswald stated at once that he was there to renounce hiscitizenship 13 and that "his allegiance was to the Soviet Union." 14He said he had already applied for Soviet citizenship.15 He said heknew the provisions of American law on loss of citizenship and did notwant to hear them reviewed by Snyder.16 Having taken his passport backfrom the receptionist, Oswald put it on Snyder's desk.17 Snydernoticed that Oswald had inked out the portion which would have shownhis address in the United States.18 Oswald also presented Snyder witha note 19 which he had prepared in advance, which reads:
I Lee Harvey Oswald do herby request that my present citizenship inthe United States of america, be revoked.Oswald told Snyder that he had not mentioned his intent to remain inthe Soviet Union to the Soviet Embassy in Helsinki at the time he hadapplied for his tourist visa.21 Oswald's passport, upon which hisSoviet visa was stamped, shows that by the 31st of October he hadalready overstayed his visa, despite a 1-day extension which he hadreceived.22
I have entered the Soviet Union for the express purpose of applingfor citizenship in the Soviet Union, through the means ofnaturalization.
My request for citizenship is now pending before Suprem Soviet ofthe U.S.S.R.
I take these steps for political reasons. My request for therevoking of my American citizenship is made only after the longest andmost serious considerations.
I affirm that my allegiance is to the Union of Soviet SocialistRepublics.20
Oswald gave as his "principal reason" for wanting to renounce hiscitizenship, "I am a Marxist." 23 He stated that he admired the systemand policies of the Soviet Union and desired to serve the Soviet
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State, and that his intent to defect to the Soviet Union had beenformed long before he was discharged from the Marine Corps.24 Shortlyafter the interview, Snyder observed that Oswald had "displayed allthe airs of a new sophomore partyliner." 25 At one point, Oswaldalluded to hardships endured by his mother as a "worker" and said hedid not intend to let this happen to him.26 He stated that his Marineservice in Okinawa and elsewhere had given him a chance "to observeAmerican imperialism," and he displayed some resentment at not havingbeen given a higher rank in the Marine Corps.27 Oswald stated toSnyder that he had voluntarily told Soviet officials that he wouldmake known to them all information concerning the Marine Corps and hisspecialty therein, radar operation, as he possessed.28
Snyder did not permit Oswald to renounce his citizenship at thattime. He told Oswald that his renunciation could not be effected on aSaturday, but that if he would return on a day when the Embassy wasopen for business, the transaction could then be completed.29 Snydertestified that his real reason for delaying Oswald was that hebelieved, as a matter of sound professional practice, that no oneshould be permitted to renounce his American citizenshipprecipitously; such an act has extremely serious consequences, and,once accomplished, it is irrevocable.30 Snyder noticed that Oswald wasyoung, apparently not well educated and obviously in a highlyemotional state.31 Snyder testified: "particularly in the case of aminor, I could not imagine myself writing out the renunciation form,and having him sign it, on the spot, without making him leave myoffice and come back at some other time, even if it is only a fewhours intervening." 32 Snyder's decision was also influenced by hisfamiliarity with a recent unfavorable incident in which an Americancitizen by the name of Petrulli had been allowed to renounce hiscitizenship hastily, without awareness that Petrulli was mentally illat the time.33 Snyder was able to persuade Oswald to tell him his homeaddress and the name of his mother, however, by saying that noprogress on his renunciation could be made without this information.34The State Department has advised that Snyder's treatment of Oswald"was in line ... with the general policy of the Department todiscourage expatriation of American citizens." 35
The same day, the Embassy sent a telegram to the Department ofState, advising that Oswald had appeared there in an attempt torenounce his American citizenship, and setting out most of the detailsof the interview with Snyder.36 Copies were immediately furnished tothe FBI 37 and the CIA.38 The telegram was followed on November 2,1959, by an Embassy report addressed to the Department of State,39which concluded:
... in view of the Petrulli case and other considerations, theEmbassy proposes to delay action on Oswald's request to execute anoath of renunciation to the extent dictated by developments andsubject to the Department's advice.40Page 749
Copies of this memorandum were also furnished both Federal securityagencies.41
After having received the telegram of October 31, 1959,42 but notthe Embassy Despatch of November 2, 1959, the State Department onNovember 2, 1959, sent a telegram to the Moscow Embassy which read inpart:
If Oswald insists on renouncing U.S. citizenship, Section 1999Revised Statutes precludes Embassy withholding right to do soregardless status his application pending Soviet Government and finalaction taken Petrulli case.43This telegram, like most of the communications from the Departmentregarding Oswald, was prepared in the Passport Office and cleared bythe Office of Eastern European Affairs and the Office of Soviet UnionAffairs.44
Oswald never returned to the Embassy.45 On November 6, 1959, theEmbassy received 46 a handwritten letter from Oswald on the stationeryof the Metropole Hotel, dated November 8, 1959, which read:
I, Lee Harvey Oswald, do hereby request that my present UnitedStates citizenship be revoked.The Embassy immediately informed the Department of the receipt ofthis letter and advised that it intended to reply to Oswald by lettertelling him that, if he wished, he could appear at the Embassy on anynormal business day and request that the necessary expatriationdocuments be prepared.48 On the same day, November 6, the Embassy sentOswald a letter so advising him.49 From then until November 30 theEmbassy attempted to communicate with Oswald on several occasions todeliver messages from his relatives in the United States urging him toreconsider, but he refused to receive the messages or talk to anyonefrom the Embassy.50 The messages were therefore sent to him byregistered mail.51
I appeared in person, at the consulate office of the United StatesEmbassy, Moscow, on Oct. 31st, for the purpose of signing the formalpapers to this effect. This legal right I was refused at that time.
I wish to protest against this action, and against the conduct ofthe official of the United States consular service who acted on behalfof the United States government.
My application, requesting that I be considered for citizenship inthe Soviet Union is now pending before the Surprem Soviet of theU.S.S.R.. In the event of acceptance, I will request my government tolodge a formal protest regarding this incident.47
On November 16, 1959, Priscilla Johnson, an Americannewspaper-woman stationed in Moscow, interviewed Oswald at theMetropole
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Hotel.52 On November 17, 1959, she informed the Embassy of herinterviews and the information was recorded in a file memorandum.53Oswald told Miss Johnson that he was scheduled to leave Moscow withina few days. She thought that Oswald "may have purposely not carriedthrough his original intent to renounce [citizenship] in order toleave a crack open." 54 The Embassy accordingly informed theDepartment of State about 2 weeks later that Oswald had departed fromthe Hotel Metropole within the last few days.55 According to his"Historic Diary" 56 and other records available to the Commission,57however, Oswald probably did not in fact leave Moscow for Minsk untilabout January 4, 1960. Miss Johnson's report of her interview withOswald was the last information about him which the U.S. Governmentwas to receive until February 13, 1961 58
On March 6, 1960, Oswald's mother asked Representative James C.Wright, Jr., of Texas to help her locate her son. The Congressmanforwarded her inquiry to the Department of State which in turn sentit to the Embassy.59 In response, the Embassy in Moscow informed theDepartment on March 28, 1960, that they had no contact with Oswaldsince November 9, 1959.60 The Embassy went on to say that it had noevidence that Oswald had expatriated himself "other than his announcedintention to do so." It believed, therefore, that since Oswald waspresumably still an American citizen, the American Government couldproperly make inquiry concerning him through a note to the SovietForeign Office. The Embassy went on to suggest, however, that it wouldbe preferable if Oswald's mother wrote a letter to her son which couldthen be forwarded by the Department to the Soviet Government.61
The Department replied on May 10, 1960, that no action should betaken in the case other than on a request voluntarily submitted bymember of Oswald's family.62 On June 22, a second communication wasdispatched, asking whether the Embassy had been able to contactOswald.63 On July 6, 1960, the Embassy replied that it had received nofurther communication with anyone on the subject of Oswald and that inview of the Department's memorandum of May 10, 1960, intended to takeno further action in the matter.64 Mrs. Oswald apparently took nosteps to follow up on her original inquiry.
Under the procedures in effect in 1960, a "refusal sheet" wasprepared in the Department of State Passport Office whenevercircumstances created the possibility that a prospective applicantwould not be entitled to receive an American passport.65 The recordssection of the Passport Office, on the basis of the refusal sheetswould prepare what was known as a lookout card 66 and file it in thelookout file in the Passport Office. Whenever anyone applied for apassport from any city in the world, his application was immediatelyforwarded to this office, and his name and date of birth checkedagainst the lookout file. If a lookout card was found, appropriateaction, including the possible refusal of a passport, was taken.68Passport Office procedures
Page 751
also provided that the lookout card would be removed from aprospective applicant's file whenever facts warranted an unquestionedpassport, grant. 69
On March 25, 1960, the Passport Office had made up a "refusalsheet" on Lee Harvey Oswald, typed across which was the explanationthat Oswald "may have been naturalized in the Soviet Union orotherwise ... expatriated himself." 70 An Operations Memorandumstating the reasons for which the card had been prepared was drawn upon March 28 and also put on file 71 and a copy sent to the Embassy. Itadvised the Embassy to take no further action on the Oswald caseunless it came into possession of evidence upon which to base thepreparation of a certificate of loss of nationality. Included in theoperations memorandum was the following:
An appropriate notice has been placed in the lookout card sectionof the Passport Office in the event that Mr. Oswald should apply fordocumentation at a post outside the Soviet Union. 72Despite these indications that a lookout card was prepared, theDepartment of State on May 18, 1964, informed the Commission that"investigations, to date, failed to reveal any other indication orevidence that a lookout card was ever prepared, modified or removed."No such card was ever located, and certain file entries indicate thatsuch a card was never prepared. 73
The State Department has advised the Commission that as of October1959 the Department had "developed information which might reasonablyhave caused it to prepare ... a lookout card for Lee Harvey Oswald."74 The Passport Office employee who prepared the refusal sheet, forOswald has suggested as a possible explanation of the failure toprepare a lookout card that between the day she prepared the refusalsheet and the time the records section would normally have preparedthe lookout card, Oswald's file was temporarily pulled from its placebecause the Department received some additional correspondence fromthe Embassy. When the file was returned, she suggested, it may havebeen assumed that the card had already been prepared. 75
Had a lookout card been prepared on the ground of possibleexpatriation, it would have been removed and destroyed after thedecision was made in 1961 that Oswald had not expatriated himself andthus prior to the time that he applied for a second passport in June1963. Hence, the Department's apparent failure to prepare a lookoutcard on Oswald had no effect on its future actions. As of February 20,1964, the Department issued additional regulations regarding themanner in which the lookout file is to be handled. 76 On March 14,1964, a category was established for returned defectors, so that thesepersons automatically have lookout cards in their files, and on July27, 1964, the Office of Security of the Department of State issued aprocedural study of the lookout-card system, with recommendations. 77RETURN AND RENEWAL OF OSWALD'S 1959 PASSPORT
Negotiations Between Oswald and the Embassy
On February 1, 1961, as a result of a visit by Oswald's mother tothe Department of State on January 25, 1961,78 the Department sent arequest to the Moscow Embassy as follows:
The Embassy is requested to inform the [Soviet] Ministry ofForeign Affairs that Mr. Oswald's mother is worried as to his presentsafety, and is anxious to hear from him.79
The inquiry went to the Embassy by diplomatic pouch and was receivedin Moscow on February 10 or 11.80 On February 13, before the Embassyhad acted on the Department's request,81 the Embassy received anundated letter from Oswald postmarked Minsk, February 5. The letterstated:
Since I have not received a reply to my letter of December1960, I am writing again asking that you consider my request for thereturn of my American passport.Despite Oswald's reference to his letter of December 1960, there is noindication that he had written to the Embassy previously.83Furthermore, his diary refers to his February 1 letter as his "firstrequest" concerning his return to the United States.84
I desire to return to the United States, that is if we couldcome to some agreement concerning the dropping of any legalproceedings against me. If so, than I would be free to ask the Russianauthorities to allow me to leave. If I could show them my Americanpassport, I am of the opinion they would give me an exit
They have at no time insisted that I take Russian citizenship. Iam living here with non-permanent type papers for a foreigner.
I cannot leave Minsk without permission, therefore I am writingrather than calling in person.
I hope that in recalling the responsibility I have to america thatyou remember your's in doing everything you can to help me since I aman american citizen.82
On February 28, 1961, the Embassy wrote Oswald that he would haveto come to Moscow to discuss the passport and expatriation matters.85Then on March 20, 1961, a second letter from Oswald, dated March 12,was received by the Embassy. It read:
In reply to your recent letter. I find it inconvenient to come toMoscow for the sole purpose of an interview.Page 753
In my last letter I believe I stated that I cannot leave the cityof Minsk without permission.
I believe there exist in the United States also a law in regardsto resident foreigners from Socialist countries, traveling betweencities.After receiving the first letter postmarked February 5, theEmbassy on February 28 forwarded a despatch to the Departmentinforming it of Oswald's letter and its reply to Oswald. At that time,the Embassy also inquired of the Department whether Oswald would besubject to prosecution on any grounds if he should return to theUnited States and, if so, whether Oswald should be so informed. TheDepartment was also asked whether there was any objection to returningOswald's 1959 passport to him by mail, since that might facilitate hisapplication for a Soviet exit visa.87 Upon receiving Oswald's March 20letter, the Embassy again consulted with Washington. The Embassyproposed that it write Oswald repeating that he must come to Moscow ifhe wanted to discuss reentering the United States and pointing outthat the Soviet government did not object to such visits by Americancitizens.88 Such a letter was mailed to Oswald on March 24.89
I do not think it would be appropriate for me to request to leaveMinsk in order to visit the American Embassy. In any event, thegranting of permission is a long drawn out affair, and I find thatthere is a hesitation on the part of local officials to even start theprocess.
I have no intention of abusing my position here, and I am sure youwould not want me to.
I see no reasons for any preliminary inquires not to be put in theform of a questionnaire and sent to me.
I understand that personal interviews undoubtedly make to work of the Embassy staff lighter, than written correspondence, however, insome cases other means must be employed.86
In the meantime, the State Department was considering the Embassydespatch of February 28, 1961. 70 Although a different, response wasoriginally recommended by a staff member in the Passport Office,91 theDepartment instructed the Embassy on April 13 that for securityreasons Oswald's passport should be given to him only if he personallyappeared at the Embassy and that even then he was to receive thedocument only after a full investigation had been made and the Embassywas satisfied that he had not, renounced his American citizenship.Also, he was to present evidence that he had made arrangements todepart from the Soviet Union to travel to the United States, and hispassport was to be stamped valid for direct return to the UnitedStates only. The Department also told the Embassy that Oswald couldnot be advised whether or not he would be prosecuted for any possibleoffenses should he return to the United States.92 Matters remained inthis posture for over a month. During the interim, Oswald met andmarried Marina Nikolaevna Prusakova.93
On May 26, 1961, the Embassy sent a despatch to the Department 94advising that on May 25, 1961, it had received a letter from Oswald
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postmarked Moscow, May 16, 1961.95 In his latest letter Oswald said hewanted "to make it clear"" that he was asking for full guarantees thathe would not be prosecuted "under any circumstances" should he returnto the United States. Oswald went on to say that if the Embassy couldnot give him these assurances, he would "endeavor to use my relativesin the United States, to see about getting something done inWashington" He also informed the Embassy that he was married to aRussian woman who would want to accompany him back to his nativecountry, and he once again repeated his reluctance to come to Moscow.The Embassy suggested that it reply to Oswald by repeating that thequestion of citizenship could only be made on the basis of a personalinterview, and by advising Oswald of the requirements and procedurespertaining to his wife's immigration. The despatch noted that Oswald'sletter referred to his present Soviet internal passport in which heclaimed to be designated as "without citizenship," and observed: "Itwould appear on this basis that Oswald has not yet expatriated himselfunder Section 349(a)(1) of the Immigration and Nationality Act." TheEmbassy inquired whether the Department considered Oswald entitled "tothe protection of the United States Government while he continues toreside abroad under present circumstances in the absence of reasonableevidence that he has committed an expatriating act?"
The Department answered the despatch under date of July 11, 1961.It said that it was not entirely clear what the description "withoutcitizenship" means, i.e., "whether he is without Soviet citizenship orwithout any citizenship." The instructions continued:
In any event in the absence of evidence showing that Mr. Oswaldhas definitely lost United States citizenship he apparently maintainsthat technical status. Whether he is entitled to the protection of theUnited States pending any further developments concerning his precisestatus is a matter which will be left to the Embassy's discretion inthe event an emergency situation should arise. In a situation of thiskind, not of an emergency nature, the facts should be submitted to theDepartment.However, on Saturday, July 8, 1961, before the Embassy hadreceived the response from Washington, Oswald appeared without warningat the Embassy in Moscow. Snyder came down to meet Oswald after Oswaldcalled him on the house telephone, and after a brief talk, askedOswald to return on Monday, July 10.97 Later that day Oswaldtelephoned his wife and told her to come to Moscow, which she did thenext day.98 Oswald returned alone to the American Embassy on Monday,where Snyder questioned him about his life in Russia.
It is noted that the Embassy intends to seek the Department'sprior advice before granting Mr. Oswald documentation as a UnitedStates citizen upon any application he may submit.
The Embassy's careful attention to the involved case of Mr. Oswaldis appreciated ... 96
Page 755
According to a memorandum which Snyder prepared shortly afterwards:
Twenty months of the realities of life in the Soviet Union haveclearly had a maturing effect on Oswald. He stated frankly that helearned a hard lesson the hard way and that he had been completelyrelieved about his illusions about the Soviet Union ... Much of thearrogance and bravado which characterized him on his first visit tothe Embassy appears to have left him.99Oswald told Snyder that despite the statement he had given him inOctober 1959, he had never applied for Soviet citizenship, but onlyfor permission to reside in the Soviet Union. He presented his Sovietinternal passport, which described him as without citizenship of anykind. Oswald said that he had been employed since January 13, 1960, asa metal worker in the research shop in the Byelorussian Radio andTelevision Factory in Minsk. He claimed that he had taken no oath ofallegiance of any kind, and that he had not been required to sign anypapers in connection with this employment. He added that he was not amember of the factory trade union organization. Oswald said that hewas earning 90 rubles ($90) a month and that he had saved about 200rubles ($200) toward travel expenses to the United States. He deniedthat he had made any derogatory statements concerning the UnitedStates to radio, press, or TV in the Soviet Union, and he denied thathe had turned over any information to the Russians as he hadthreatened to do in the 1959 interview with Snyder.100
During the course of the interview Oswald filled out anapplication for renewal of his American passport.101 The renewalapplication was required since Oswald's existing passport wouldexpire on September 10, 1961,102 and it was extremely unlikely that hewould be able to obtain the requisite Soviet departure documentsbefore that time. The renewal application contained a printedstatement which set forth, in the disjunctive, a series of acts which,if committed by the applicant, would either automatically disqualifyhim from receiving a passport on the ground that he had lost hisAmerican citizenship, or would raise a question whether he might be sodisqualified. The printed statement was preceded by two phrases,"have," and, "have not," the first phrase being printed directly abovethe second. One carbon copy of the application indicates Oswald signedthe document after the second phrase, "have not," had been typed over,thereby apparently admitting that he had committed one or more of theacts which would at least raise a question as to whether he hadexpatriated himself. Snyder was not able to remember with certainty towhich of the acts listed on the statement Oswald's mark was intendedto refer, but believed it may have been to "swearing allegiance to aforeign state." 103 He points out that the strikeout of "have not" mayalso have been a clerical error.104 On the actual signed copy of theapplication kept in the
Page 756
files of the Moscow Embassy, which is not a carbon copy of the copysent to the Department, the strikeout is slightly above the "have;"therefore, since the "have" is itself printed above the "have not,"the strikeout may have been intended to obliterate the "have." 105
In any event, Oswald filled out the supplementary questionnairewhich was required to be completed if the applicant admitted he hadperformed one or more of the possibly expatriating acts. He signed thequestionnaire under oath.106 Snyder testified that it was routine forany kind of "problem case" to fill out the supplementaryquestionnaire.107 The Passport Office employee who processed theOswald case in Washington testified that she routinely regarded thequestionnaire rather than the application itself as the controllingdocument for expatriation purposes, so that she probably paid noattention to the strikeout.108
The pertinent questions included on the questionnaire, withOswald's answers, read as follows:
2.(a)Are you known or considered in your community to be anational of the country in which you are residing?No. (Yes or No)Page 757
(b)If your answer to 2(a) is "No," explain why not.On mydocument for residence in the USSR my nationality is American.
3.(a) Have you ever sought or obtained registration as a nationalof a foreign country, applied for or obtained a passport, certificate, carddocument or other benefit therefrom in which you were described as a national of acountry other than the United States?No. (Yes or No)
(b) If your answer to 3(a) is "Yes," did you voluntarily seekor claim such benefits? (Yes or No) If "No," please explain.I received a document for residence in the USSR but I amdescribed as being "Without citizenship."
4.(a) Have you ever informed any local or national official of aforeign state that you are a national of the United Stares?No.***
(b) If your answer to 4(a) is "No," explain why not.On mydocument for residence in the USSR, my nationality is American.
6.(a) Have you ever taken an oath or made an affirmation or otherformal declaration of allegiance to a foreign state?No.***
8. Have you ever accepted, served in, or performed the dutiesof any office, post or employment under the government of a foreign state orpolitical subdivision thereof?No... I do not regard factoryemployment as state employment, as is meant in the question above.109
On the basis of these answers, and on the basis of the statementsOswald made orally during the interview, Snyder concluded that Oswaldhad not lost his citizenship. Snyder therefore handed him back hispassport. Pursuant to the instructions from Washington, it wasstamped, "This passport is valid only for direct travel to the UnitedStates." 110
In a despatch dated July 11, 1961,111 the Embassy informed theDepartment of State of its conclusion that Oswald had not lost hisAmerican citizenship and requested that, if Washington agreed with theconclusion, "the Embassy be authorized to renew Oswald's passport atits discretion." The despatch, with which Oswald's application andsupplemental questionnaire 112 were enclosed, informed the Departmentthat Oswald was questioned at length at the Embassy and that noevidence was revealed of any act which might be considered as havingcaused the loss of his American citizenship.
The Embassy added in the despatch--
It is our intention not to renew it [the passport] without theDepartment's prior approval of the enclosed renewal application, andthen only upon evidence of a present need for the renewal inconnection with his efforts to return to the United States.113Oswald appeared at the Embassy once again on July 11, 1961, thistime accompanied by Marina, in order to complete the papers necessaryto obtain permission for his wife to enter the United States.114 In aletter dated July 16, 1961, Oswald informed the American Embassy abouthis and Marina's application to the Soviet officials for permission toleave Russia, and described the harassment which Marina was allegedlyundergoing because of her attempts to leave the country.115
Based upon Snyder's recommendation and the information in itsfiles, the passport Office on August 18, 1961, concluded that Oswaldhad not expatriated himself.116 Therefore, on that date, theDepartment of State sent a despatch to the Embassy in Moscow statingthat they concurred in the Embassy's recommendation of July 11, 1961,with respect to Oswald's citizenship:
We concur in the conclusion of the Embassy that there is availableno information and/or evidence to show that Mr. Oswald has expatriatedhimself under the pertinent laws of the United States.Page 758
The renewal of Mr. Oswald's passport, issued on September 10,1959, is authorized upon his referenced application if no adversereason is known, to take place upon his presentation of evidence thathe needs such renewal in connection with his efforts to return to theUnited States as indicated in the final sentence on page 2 of Despatch29. As requested in the final paragraph of the Despatch the Embassymay perform this citizenship function for Mr. Oswald at itsdiscretion.
Any passport renewal granted to Mr. Oswald should be limited tohis passport needs and, as stated in the second paragraph of theDepartment's A-173, April 13, 1961 his passport should be made validfor direct return to the United States. The additional precaution setforth in the same paragraph should be observed and his passport shouldbe delivered to him on a personal basis only. When available, a reportof his travel data should be submitted, as well as a report of anyintervening developments.117On October 12, 1961, the Embassy wrote the Department to inform itof four letters it had received from Oswald dated July 15, August 8,and October 4, and an undated letter received in August. Withreference to these letters, the despatch noted:
... that Oswald is having difficulty in obtaining exit visas forhimself and his Soviet wife, and that they are subject to increasingharassment in Minsk. In replying to Oswald's latest letter, theEmbassy pointed out that it has no way of influencing Soviet action onexit visas. It informed him that the question of his passport renewalcould be discussed with him personally at the Embassy. In answer toOswald's question, the Embassy notified him that the petition toclassify his wife's status had not yet been approved.118The Department on December 28, 1961, informed the Embassy that thePassport Office approved the manner of the Embassy's reply to Mr.Oswald with respect "to his receiving further passport facilities."119 After a further exchange of correspondence between Oswald and theEmbassy, dealing primarily with Oswald's difficulties in obtaining thenecessary Soviet clearance, his impatience in receiving Americanapproval for Marina's entry into the United States, and his efforts toobtain a repatriation loan,120 the passport problem was finallyconcluded on May 24, 1962, when the Embassy renewed Oswald's passportfor 30 days, stamped it valid for direct return to the United Statesonly and handed it to him.121 A week later he used it to return to theUnited States.122
The decision that Oswald was entitled to a new passport because hehad not expatriated himself was made for the Embassy by the consul,Richard E. Snyder.123 For the Department it was made initially by MissBernice L. Waterman, a worker in the Passport Office for 36 years, andwas then approved by her area chief, by the head of the ForeignOperations Division, and by the Legal Division of the PassportOffice.124 Snyder and Miss Waterman have both testified that theyreached their decisions independently and without influence from anyother person.125 The Director of the Passport Office and the LegalAdviser to the State Department both stated that after a review of therecord they concluded that Oswald had not expatriated himself and thatSnyder and Waterman, therefore, acted correctly.126
Page 759
Legal Justification for the Return and Reissue of Oswald's Passport
Since he was born in the United States, Oswald was an Americancitizen.127 However, Congress has provided that by performing certainacts, a person may forfeit his American citizenship. Thus Oswald wouldhave become expatriated while in Russia if he obtained naturalizationin the Soviet Union, renounced U.S. nationality, took an oath ofallegiance to the Soviet Union, or voluntarily worked for the SovietGovernment in a post requiring that the employee take an oath ofallegiance.
Naturalization in a foreign state.--Section 349(a)(1) of theImmigration and Nationality Act of 1952 provides that a U.S. citizenshall lose his nationality by "obtaining naturalization in a foreignstate upon his own application ... " 128 Although Oswald appliedfor Soviet citizenship, he never received it.129 Thus, Oswald did notexpatriate himself under section 349 (a) ( 1 ).
Formal renunciation of U.S. nationality.--Section 349 (a) (6) ofthe act provides that a U.S. citizen shall lose his citizenship by:
... making a formal renunciation of nationality before a diplomaticor consular officer of the United States in a foreign state, in suchform as may be prescribed by the Secretary of State.130In accordance with this statute, the Secretary has promulgatedregulations prescribing the manner in which renunciation is to beeffected.131 The regulations provide, among other things, that 4copies of the renunciation form are to be executed and the originaland one copy sent to the Department. The Department must then approvethe form and advise the appropriate consular official, who may thenfurnish a copy of the form to the person to whom it relates. The formitself requires the person to subscribe it in the presence of aconsular official, and it must also be signed by this official.132
Though in 1959 Oswald clearly stated to officials at the AmericanEmbassy, both orally and in writing, that he desired to renounce hisU.S. citizenship, he at no time took the steps required by the statuteand regulations to effect his renunciation. Oswald did not execute theproper forms, he did not sign his letter of October 31 or November 3,1959, in the presence of a consular official, and neither letter wassigned by such an official.133 Because section 349 (a) (6) in termsrequires compliance with the form prescribed by the Secretary ofState, Oswald did not expatriate himself under that section.
Oath of allegiance to a foreign state.--Section 349(a)(2) of the actprovides that a U.S. citizen shall lose his nationality by:
... taking an oath or making an affirmation or other formaldeclaration of allegiance to a foreign state or a politicalsubdivision thereof.134Page 760
In his letter of October 31, 1959, Oswald wrote: "I affirm that myallegiance is to the union of Soviet Socialist Republics." 135 Both inthis letter and in his letter of November 3, 1959, he stated that hisapplication for citizenship in the Soviet Union was pending before theSupreme Soviet of the U.S.S.R.136
Oswald's letters no doubt were intended to express allegiance tothe Soviet Union in a manner inconsistent with continued allegiance tothe United States, as the statute has been held to require.137However, since 1940, it has been well established that in order for anoath of allegiance to a foreign state to work an expatriation from theUnited States, it must, be given to an official of the foreign state,and not to a party unconnected with the foreign state.138 Thisrequirement can be viewed as a necessary corollary of the broader, butless clearly established, principle that the oath must be taken inaccord with the requirements of the foreign state.139 Although LeeHarvey Oswald wrote that his allegiance was to the Soviet Union,140there is no indication that he had ever actually taken an oath ordeclaration or that any such oath was taken before an official of theSoviet Government. He, therefore, did not expatriate himself undersection 349 (a) (2).
Employment under the government of a foreign state.--Section349(a) (4) of the Immigration and Nationality Act of 1952 providesthat a U.S. citizen shall lose his nationality by:
(a) accepting, serving in, or performing the duties of any office,post, or employment under the government of a foreign state or apolitical subdivision thereof, if he has or acquires the nationalityof such foreign state; or (b) accepting, serving in, or performing theduties of any office, post of employment under the government of aforeign state or a political subdivision thereof, for which office,post, or employment an oath, affirmation, or declaration of allegianceis required... 141While Oswald was employed in a state-owned factory in Minsk, he didnot acquire Russian nationality, and there is no indication that hehad to take any oath when he obtained this employment.142 Furthermore,prior judicial decisions indicate that merely working in agovernment-owned factory does not result in expatriation even if anoath was required to be taken in connection with such employment.143Several cases decided under an earlier but similar statutory provisionheld that where a person took a government job in order to subsist,such employment, was considered involuntary since it was based oneconomic duress, and thus it did not result in expatriation.144 Thus,Oswald did not expatriate himself under section 349 (a) (4).
The Commission therefore concludes that Lee Harvey Oswald had notexpatriated himself by any acts performed between October 16, 1959,and May 1962, and concurs in the opinion of the State Department thathis passport was properly returned to him in July 1961 and properlyreissued in May 1962.
Page 761AUTHORIZATION FOR MARINA OSWALD TO ENTER THE UNITED STATES
Negotiations Between Oswald and the Embassy
On July 11, 1961, Oswald and his wife appeared at the Embassy inMoscow before John A. McVickar.145 Together they executed papers toset in motion the procedures for her admittance to the United Statesas a nonquota immigrant under the provisions applicable to the wife ofan American citizen.146 The interview was routine. McVickar askedMarina whether she was a member of any Communist organization and shereplied that she was a member of the Trade Union of Medical Workers147 but she denied she was or ever had been a member of theKomsomol,148 the Communist youth organization, or any other Communistorganization.149 Marina Oswald has since admitted to the Commissionthat at one time she was a member of the Komsomol, but was expelled,according to her testimony, when it was learned that she intended toaccompany her husband to the United States.150 The Embassy forwardedthe papers pertaining to her application to the State Department onAugust 28, 1961.151
Marina Oswald's ability to obtain a nonquota immigrant visadepended on the favorable resolution of 3 questions. First, it had tobe determined that she was the wife of an American citizen,152 whichdepended on whether her husband had expatriated himself. Second, itwas necessary to determine that she was not and had not beenaffiliated with a Communist organization on other than an involuntarybasis.153 Third, it had to be determined that she was not likely tobecome a public charge after she was admitted to the United States.154Section 243 (g) of the Immigration and Nationality Act 155 presented afourth issue. This section of the act prohibits the issuance ofimmigrant visas by American Consuls stationed in countries which haverefused to accept or have unduly delayed accepting the return ofpersons sought to be deported from the United States. The Soviet Unionhad been designated as such a country in 1953. However, the sanctionsof section 243 (g) are often waived; and even if they were not waivedin Marina's case, she could obtain her visa at an American Embassy insome other country on her way from the soviet Union to the UnitedStates, if she were otherwise entitled to the visa.156
In a despatch dated August 28, 1961, the Embassy requested fromthe Department a security advisory opinion on Marina Oswald'sapplication to enter the United States. The Embassy wrote:
A favorable advisory opinion and approval of ... [Mrs. Oswald's]petition is recommended together with a waiver of the sanctionsimposed by section 243 (g) of the Act...Page 762
In connection with her employment and her professional training,she has been a member of the Soviet Trade Union for Medical Workerssince 1957. Such membership is routinely considered to be involuntary.... 157
The Department initiated a check on Marina Oswald with the CIA, theFBI, the Department's own Office of Security, and Passport Office.158The security check turned up no derogatory information on her, so thatin early October 1961 the Department cabled Moscow that theavailable information concerning the applicant established hereligibility to enter the country as a nonquota immigrant.159
The Department's decision assumed that prior to obtaining her visato enter the United States, Marina Oswald would provide somereasonable assurance that she was not likely to become a publiccharge after she had arrived there. The Department later encounteredsome difficulty in deciding that she had met this requirement. Sheknew no one in the United States other than the members of herhusband's family, and they lacked the means to furnish any substantialfinancial guarantees. After considerable correspondence on the matterwith Oswald 160 and with the Department,161 the Embassy decided toaccept Oswald's own affidavit to support his wife as sufficientassurance that she would not become a public charge. The Embassy'sreasons were set forth in a memorandum dated March 16, 1962:
It appears that ... [Oswald] can find no one in the United Stateswho is able and willing to execute an affidavit of support for hiswife. Furthermore, Oswald has been able to obtain no concrete offer ofemployment in the United States. On the other hand, he is trained ina trade which should make him readily employable and he and his familywill be able to live with his mother in Texas until he has found workand become otherwise settled. Taking into consideration the latterfactors, Oswald's legal obligation to support his wife, and theunusual circumstances of the case which make it difficult for Oswaldto provide the usual financial evidence, the responsible consularofficer ... [is] willing to accept Oswald's unsubstantiatedaffidavit as sufficient to overcome the public charge provisions ofthe law.162The necessity of relying solely upon Oswald's own affidavit, however,was eliminated somewhat later when the Department received anaffidavit of support from the employer of Oswald's mother in Vernon,Tex. 163
By law the Attorney General must also pass upon an app1icant'seligibility, and this responsibility has been delegated to theDistrict Directors of the Immigration and Naturalization Service.164The machinery to get approval of the Immigration and NaturalizationService for Marina Oswald's admission to the United States was set inmotion on October 6, 1961. On that date the Visa Office of theDepartment of State sent a letter to the District Director of theImmigration and Naturalization Service in Dallas, Tex., requesting theService to take action on her immigrant visa.165 The lettertransmitted her marriage certificate, a check for $10 from Lee HarveyOswald, and a "Petition to Classify Status of Alien For Issuance ofImmigrant Visa." The petition was signed by Oswald and was on
Page 763
behalf of Marina, asking that she be classified in "the status of thealien beneficiary for issuance of an immigrant visa as ... thespouse of a United States citizen." 166 The letter from the VisaOffice stated:
Mrs. Oswald has been the object of an investigation by the Departmentand has been found, in the Department's opinion, not ineligible tosecure a visa.167On the basis of this communication, the Immigration andNaturalization Service at its Dallas, Tex., office instituted a fieldinvestigation on Lee Harvey Oswald.168 Routine checks with the Federalsecurity agencies and with local law enforcement authorities turned upno new derogatory information, and no evidence was uncovered thatOswald was ever a member of the Communist Party or other subversivegroups.169 A record check was made in New Orleans, La., and a birthcertificate was found for Lee Harvey Oswald, proving that he was anAmerican citizen by birth.170 On October 17, 1961, an investigatorfrom the Dallas office interviewed Oswald's brother, Robert, whoexpressed the view that Lee was just a "mixed up kid" who hademigrated to Russia because he had become embittered, possibly oversomething that had happened while he was in the Marine Corps.171
On January 25, 1962, the results of the field investigation inDallas were consolidated in a report 172 which, with a coveringmemorandum,173 was sent to the District Director of the Service in SanAntonio the next day. The accompanying memorandum noted that theimmigrant inspector who processed the case had endorsed it "approved,"but the author of the memorandum overruled the decision of theinspector on the grounds that the sanctions under section 243(g)should not be waived.174 The reasons for denying the waiver werestated as follows:
OI [Operations Instructions] 205.3, as you know, provides that theDistrict Director may waive sanctions in an individual meritoriouscase for a beneficiary of a petition filed by a reputable relativewhere no substantial derogatory security information is developed. Iam of the opinion that both of these restrictions are present in thiscase.175On January 30, 1962, the District Director at San Antonio affirmed thedecision of the. Dallas office, including the decision that thesanctions imposed under section 243(g) not be waived.176 He concludedthat Oswald's recent statements to the American Embassy in Moscow tothe effect that he had ]earned from his experiences in Russia were notsufficient to relieve the doubts which were raised regarding hisloyalty to the United States by the arrogant, anti-American statementshe made when he entered Russia in 1959.177
San Antonio forwarded its decision to Washington in a letter datedJanuary 31, 1962, in which Marina Oswald's petition and all the
Page 764
aforementioned memoranda and reports were included.178 However,because Washington had previously indicated its impatience at not yethaving received anything on the Oswald case, the San Antonio officealso telegraphed its decision to Washington about a week later,179 thetelegram presumably being received by Washington before the letter ofJanuary 31. The Washington copy of this telegram has a handwrittennote on the lower portion which indicates that on February 12 anofficer in the Visa Office of the State Department informed theImmigration and Naturalization Service by telephone: "Political deskof opinion, we're better off with subject in U.S. than in Russia."
Nonetheless, the Washington office of the Service concurred in thefield decision that the provisions of section 243(g) should not bewaived.181 However, the Washington office pointed out that thecorrect disposition should be not to deny the visa petition as the field offices had proposed, but to grant the petition and indorse itto read, "Waiver of sanctions imposed under section 243 (g) of the Actis not authorized." 182
On February 28, 1962, the Dallas office of the Immigration andNaturalization Service notified the Department of State in Washingtonand the American Embassy in Moscow of this disposition. Thecommunication from the Dallas office noted that Oswald "has beennotified at his Minsk, Russia, address of the approval of the petitionin his wife's behalf." 183 Oswald later told the Embassy that he hadreceived the notice on March 15.184 On March 9, 1962, the Departmentof State also notified the Embassy in Moscow that Oswald's wife wasentitled to nonquota status but that the Immigration andNaturalization Service would not waive section 243 (g) of the Act. TheEmbassy was told to inform Oswald of this fact if he asked about it.The memorandum indicated that the Embassy might suggest that Marinacould proceed to some other country to file her visa application andthus avoid the sanction.185
The Moscow Embassy on March 16, 1962, asked the Embassy atBrussels if Mrs. Oswald could obtain her visa in Brussels.186 TheBrussels Embassy replied affirmatively and said a visa could be issuedto Marina within 2 or 3 days of her arrival.187 The Marina Oswald fileaccordingly was sent to the Embassy at Brussels.188
The plan to obtain the visa in Belgium was rendered unnecessary,however, when the Immigration and Naturalization Service reversed itsposition regarding the waiver of section 243(g). On March 16, theSoviet desk at the Department of State took initial action to attemptto secure such a change by sending a memorandum to the Visa Officewithin the Department, urging that the Immigration and NaturalizationService be asked to reconsider its decision.189 According to thismemorandum:
SOV believes it is in the interest of the U.S. to get Lee HarveyOswald and his family out of the Soviet Union and on their way to thiscountry as soon as possible. An unstable character, whose actions areentirely unpredictable, Oswald may well refuse toPage 765
leave the USSR or subsequently attempt to return there if we shouldmake it impossible for him to be accompanied from Moscow by his wifeand child.Soon thereafter, however, the Department of State notified itsMoscow Embassy that the decision was under review and instructed it towithhold action pending the outcome of the reconsideration.191
Such action on our part also would permit the Soviet Government toargue that, although it had issued an exit visa to Mrs. Oswald toprevent the separation of a family, the United States Government hadimposed a forced separation by refusing to issue her a visa.Obviously, this would weaken our Embassy's position in encouragingpositive Soviet action in other cases involving Soviet citizenrelatives of U.S. citizens.190
The Visa Office first contacted the Washington office of theImmigration and Naturalization Service informally, and was advised,cording to a contemporaneous notation:
... that case had been carefully considered and decision made atAssistant or Deputy Associate Commissioner level. Therefore, althoughnot wishing to comment on likelihood of reversal, [INS officer] feltthat any letter requesting a review of the case should come from theDirector or Acting Administrator.192On March 27, 1962, such a letter was written from an actingadministrator in the Department of State to the Commissioner ofImmigration and Naturalization. The letter read in part:
I appreciate the difficulty this case presents for your Service,because of Mr. Oswald's background, and the fact that granting awaiver of the sanction makes it appear that this Government isassisting a person who is not altogether entitled to such assistance.However, if the Embassy at Moscow is unable to issue Mrs. Oswald avisa, it would appear that she and indirectly the Oswalds' newbornchild are being punished for Mr. Oswald's earlier indiscretions. Imight also point out that this Government has advanced Mr. Oswald aloan of $500.00 for repatriation.Page 766
More important, however, is the possibility that if Mrs. Oswald isnot issued a visa by the Embassy, the Soviet Government will be in aposition to claim that it has done all it can to prevent theseparation of the family by issuing Mrs. Oswald the required exitpermission, but that this Government has refused to issue her a visa,thus preventing her from accompanying her husband and child. Thiswould weaken the Embassy's attempts to encourage positive action bythe Soviet authorities in other cases involving Soviet relatives ofUnited States citizens.
Because of these considerations and because I believe it is in thebest interests of the United States to have Mr. Oswald depart
from the Soviet Union as soon as possible, I request that the section243 (g) sanction be waived in Mrs. Oswald's case.193
The Immigration and Naturalization Service ultimately reversed itsoriginal position and granted the waiver on May 9, 1962. The letterreversing its initial decision states that the matter has been"carefully reviewed in this office" and that "in view of the strongrepresentations" made in the letter of March 27, the sanctions imposedpursuant to section 243 (g) were thereby waived in behalf of Mrs.Oswald.194
Actually, the Office of Soviet Affairs had informally learned onMay 8 that the May 9 letter would be signed by the Immigration andNaturalization Service.195 On the strength of the assurance that awritten reversal would be forthcoming immediately, the StateDepartment quickly telegraphed the Moscow Embassy reporting that thewaiver had been granted.196 Marina Oswald completed her processingwhen she, her husband, and daughter came to Moscow in May 1962 ontheir way from Minsk to the United States.197
Legal Justification for the Decisions Affecting Marina Oswald
Wife of a citizen of the United States.--Section 205 of theImmigration and Nationality Act of 1952 provides for the admissioninto the United States of persons married to American citizens.198Once it was determined that Lee Harvey Oswald was born in the UnitedStates 199 and had not expatriated himself, his American citizenshipwas established. Marina Oswald submitted a marriage certificate toshow that she was his wife.200 This requirement was, therefore,satisfied.
Assurance that Marina Oswald would not become a publiccharge.--Section 212(a) (15) of the act provides that aliens will notbe admitted to the United States if, in the opinion of the responsibleGovernment official, they "are likely at any time to become publiccharges." 201 The pertinent Department of State regulations providethat a determination to exclude an alien for this reason must be"predicated upon circumstances which indicate that the alien willprobably become a charge upon the public after entry into the UnitedStates." 202
In 1962, Oswald was 22 years old and in good health. He had livedin the United States for 17 years before joining the Marine Corps andwas, therefore, familiar with its language and customs. He had gainedjob experience by working 2½ years in a factory which producedelectronic equipment. Under these circumstances the Department was notunreasonable in concluding that Oswald's own affidavit that he wouldsupport his wife was sufficient assurance that she was not likely tobecome a charge upon the public after her entry into the UnitedStates. The receipt of the affidavit from Marguerite Oswald's employerprovided a possible alternative basis for reaching this decision, butsince a favorable ruling had already been made on the basis ofOswald's affidavit, the Embassy had no reason to consider thesufficiency of the second affidavit.
Page 767
Membership in a Communist organizationn.--Under section 212(a) (28)of the Immigration and Nationality Act, an alien will not be admittedto the United States if he is or was a member of, or affiliated with,a Communist organization unless:
... such an alien establishes to the satisfaction of the consularofficer when applying for a visa and the consular officer finds that(i) such membership or application is or was involuntary, or is or wassolely when under sixteen years of age, by operation of law, or forpurposes of obtaining employment, food rations, or other essentials ofliving and where necessary for such purposes ..." 203At the time Marina Oswald applied for a visa she was a member ofthe Soviet Trade Union for Medical Workers.204 According to theDepartment of State, the
... long-standing interpretation [of the statute] concurred in bythe State and Justice Departments [is] that membership in aprofessional organization or trade union behind the Iron Curtain isconsidered involuntary unless the membership is accompanied by someindication of voluntariness, such as active participation in theorganization's activities or holding an office in the organization.205Since there was no evidence that Marina Oswald actively participatedin the union's activities or held an office in the organization, herunion membership was properly held not to bar her admission to thiscountry.
Although Marina Oswald declared that she was not a member of theKomsomol or any other Communist organization, she was in fact a memberof the Komsomol, the Communist youth organization.206 If this fact hadbeen known to the State Department, Marina Oswald would notnecessarily have been denied a visa, although a careful investigationinto the nature of the membership would have been required.207However, had her membership in the Komsomol become known to theDepartment after her denial of such membership, it is possible thatshe would have been excluded from the United States on the ground ofhaving willfully misrepresented a material fact.208
Judicial decisions are not in agreement as to what constitutes a"material fact" such that its intentional misrepresentation warrantsexclusion of the alien.209 Some cases indicate that amisrepresentation in an application for a visa involves a materialfact even if the alien would not definitely have been excluded on thetrue facts; 210 others hold that a misstatement is material only if itreferred to such facts as would have justified refusing the visa hadthey been disclosed.211 The Visa Office of the Department of State hasannounced that it applies a "rule of probability" under which amisstatement will be deemed ma-
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terial only if it concealed facts which probably would have resultedin a denial of a visa.212
Waiver of the provisions of section 243 (g).--Section 243 (g) ofthe Immigration and Nationality Act of 1952, by its terms, preventedissuance of a visa to Marina Oswald by the Moscow Embassy. The sectionprovides that upon notification of the Secretary of State by theAttorney General that a country has refused or unduly delayed theacceptance of a deportable alien from the United States who is asubject or was a resident of that country, consular officers in suchcountry are not to issue visas to citizens of the country. The sectionhad been invoked against Russia on May 26, 1953. Nonetheless, althoughsection 243 (g) does not contain an express provision for waiver, theJustice Department has concluded that the Attorney General possessessuch waiver powers.213 Pursuant to this decision, the Department hasgranted waivers in over 600 cases from the Soviet Union since 1953.214The waiver procedures followed in 1962 were prescribed by theImmigration and Naturalization Service. The relevant provision reads:
Before adjudicating a petition for an eligible beneficiaryresiding in the USSR, Czechoslovakia or Hungary, against whichsanctions have been imposed, the district director shall obtain areport of investigation regarding the petitioner which shall includean affiliation of a subversive nature disclosed by a neighborhoodinvestigation, local agency records and responses to Form G-135a. * ** If no substantial derogatory security information is developed, thedistrict director may waive the sanctions in an individual meritoriouscase for a beneficiary of a petition filed by a reputable relative toaccord status under Section 101 (a)(27) (A) or Section 203(a) (2), (3)or (4)... If substantial adverse security information relating tothe petitioner is developed, the visa petition shall be processed onits merits and certified to the regional commissioner fordetermination whether the sanctions should be waived. The assistantcommissioner shall endorse the petition to show whether the Waiver isgranted or denied, and forward it and notify the appropriate fieldoffice of the action taken... 215State Department regulations are much less explicit.216 The StateDepartment's visa instructions for the guidance of consular officersprovide, "the sanctions will be waived only in individual meritoriouscases in behalf of a beneficiary of a petition filed by a reputablerelative pursuant to [sections] of the act." 217
Because Lee Harvey Oswald signed the petition on Marina's behalf,his character was relevant to whether the sanctions of section 243 (g)could be waived for her. The file on Lee Harvey Oswald which wasmaintained by the Department of State and made available to theDepartment of Justice for purposes of passing on his wife'sapplication contained the facts relating to Oswald's attemptedexpatriation. However, despite the derogatory material in the Oswaldfile, the Im-
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migration and Naturalization Service regulations did not requireautomatic denial of the waiver; they provided only that if adversesecurity information were developed, "the visa petition shall beprocessed on its merits and certified to the regional commissioner fordetermination whether the sanctions should be waived." This procedurewas followed in Marina's case and the factors considered in reachingthe decision do not appear to be inappropriate. The State Departmentsuccessfully urged that the original decision of the Immigration andNaturalization Service be reversed because this would be in the bestinterests of future United States dealings with the Soviet Union onbehalf of American citizens, and because it seemed unfair to punishLee Harvey Oswald's wife and baby for his own earlier errors.218Prevention of the separation of families is among the most commonreasons underlying the frequent waivers of section 243 (g).219OSWALD'S LETTER TO SENATOR TOWER
Sometime shortly before January 26, 1962, an undated letter fromLee Harvey Oswald was received in the office of the U.S. Senator fromTexas, John G. Tower.220 The letter reads as follows:
My name is Lee Harvey Oswald, 22, of Fort Worth up till October1959, when I came to the Soviet Union for a residenaul stay. I took aresidenual document for a non-Soviet person living for a time in the US S R. The American Embassy in Moscow is familiar with my caseThe letter was read in Senator Tower's office by a caseworker onhis staff. According to the caseworker and the Senator's presssecretary, the letter was forwarded as a matter of routine on January26 to the Assistant Secretary for Congressional Relations, Departmentof State. The letter was forwarded with a cover letter, machine signedby the Senator, stating that he did "not know Oswald, or any of thefacts concerning his reasons for visiting the Soviet Union; nor whataction, if any, this Government can or should take on his behalf." Thecover letter pointed out that Oswald's inquiry should have gone to theexecutive branch of the Government and that for this reason theSenator was forwarding it "for whatever action the Department mayconsider appropriate." 222 On February 1 an officer at the Departmentof State telephoned the Senator's office and spoke briefly
Since July 20th 1960, I have unsuccessfully applied for a SovietExit Visa to leave this country, the Soviets refuse to permit me andmy Soviet wife, (who applied at the U.S. Embassy Moscow, July 8, 1960for immigration status to the U.S.A.) to leave the Soviet Union. I ama citizen of the United States of America (passport No. 1733242, 1959)and I bessech you, Senator Tower, to rise the question of holding bythe Soviet Union of a citizen of the U.S., against his will andexpressed desires.221
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with the caseworker on the Oswald case. She made a memorandum of thecall which notes, "Senator should not become involved in suchcase--therefore State will report to us the course which they followregarding Lee Harvey Oswalt [sic]." 223 About a week later theDepartment of State forwarded to Senator Tower copies of some of thecorrespondence which the Department had with Oswald and informedthe Senator that if he wished to be kept informed on furtherdevelopments regarding Oswald he could contact the Department ofState.224 Neither the Senator nor any member of his staff contactedthe Department again nor did they take any other action in respect tothe matter.225
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THE LOAN FROM THE STATE DEPARTMENT
In a letter dated January 5, 1962, Oswald said that he would liketo make arrangements for a loan from the Embassy or some privateorganization for part of the airplane fares.226 The Embassy onFebruary 6, 1962, replied that he would have to supply certainpersonal and financial data.227 The letter also said that afterrepatriation he would not be furnished a passport for travel abroaduntil he had repaid the money.
Between February 6, 1962, and May 1, 1962, Oswald attempted tosecure a loan from the Red Cross 228 and the International RescueCommittee 229 in the United States. The State Department on February 1 wrote Oswald's mother a letter asking whether she could advance themoney.230 Oswald later wrote both his mother and the Departmentadvising each that his mother should not be bothered in reference tothe loan.231 Ultimately, after an exchange of communications betweenthe Embassy and Washington,232 the Department approved a loan toOswald for passage to New York only, directing the Embassy to "Keepcost minimum." 233 On June 1 Oswald signed a promissory note for$435.71.234
Statutory authority for making such a loan was conferred by title5, section 170 (a), of the U.S. Code, which authorizes the Secretaryof State to "make expenditures, from such amounts as may bespecifically appropriated therefore, for unforeseen emergencies arisingin the diplomatic and consular service." Since 1947, the Department ofState's annual appropriation act has included a sum for expensesnecessary "to enable the Secretary of State to meet unforeseenemergencies arising in the Diplomatic and Consular Service." 235In recent years, the accompanying reports submitted by theAppropriations Committee of the House of Representatives have stated,"These funds are used for relief and repatriation loans to the U.S.citizens abroad and for other emergencies of the Department." 236 Outof the amount appropriated to meet unforeseen emergencies arising inthe Diplomatic and Consular Service, the Secretary of State hasannually allotted approximately $100,000 to meet the expenses ofindigent U.S. nationals, including those in the Soviet Union, whorequest
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repatriation loans. From 1959 to 1963, 2,343 such loans weregranted.237
Section 423.2-1 of the Department's regulations provides thatrepatriation loans may be granted only to destitute U.S. nationals:
a. Who are in complete and unquestioned possession of theircitizenship rights;Oswald undoubtedly satisfied the requirements of paragraphs (a) and(b), since he was determined to have been a U.S. citizen at the timethe loan was granted and he had been issued a passport to return tothe United States. There is a serious question whether he could havequalified under the first clause of paragraph (c). The Commission isof the opinion that in its application of this clause the Departmentshould exercise great care in determining whether an applicant'sloyalty to the U.S. Government is beyond question, particularly in thecase of a defector like Oswald who has expressed hostility anddisloyalty to our government and manifested a desire to renounce hiscitizenship. The Department chose instead to exercise its judgmentunder the second clause of paragraph (c), which refers to section423.1-2(b). This section provides that loans to destitute nationalsare authorized when:
b. Who are entitled to receive United States passports;
c. Whose loyalty to the United States Government is beyond question, or to whomthe provisions of Section 423.1-2(b) apply.238
b. The United States national is in or the cause of a situationwhich is damaging to the prestige of the United States Government orwhich constitutes a compelling reason for extending assistance toeffect his return.239The Department decided that the provisions of section (b) wereapplicable to Oswald because his "unstable character and priorcriticism of the United States" would make his continued presence inthe Soviet Union damaging to the prestige of the United States.240 Inacting under this section, the Department was acting within itscompetence and the law. As required by another section of theregulations, the Department sought to obtain funds for the Oswalds'repatriation from private sources--his mother and the InternationalRescue Committee---before using Government funds.241
Regulations further provide that repatriation loans are authorizedfor the alien, wife, and children of the U.S. national receiving arepatriation loan in order to avoid the division of families.242However, loans are limited
To the minimum amount required to cover transportation and subsistencewhile enroute to the nearest continental United States port...When necessary, loans may include: expenses inci-Page 772
dent to embarkation, such as fees for documentation and minimumsubsistence from the date of application for a loan to the date ofdeparture by the first available ship... The cost oftransportation shall be limited to third-class passage by ship.243Oswald's loan was sufficient to cover no more than the least expensivetransportation from Moscow to New York. His passport was stamped asvalid only for return to the United States.244 Oswald completed allnecessary forms and affidavits to obtain the loan.245
According to its own procedures the Department of State shouldhave prepared a lookout card for Oswald in June 1962 when he receivedthe proceeds of the loan.246 The promissory note which he signedcontained a provision stating,
I further understand and agree that after my repatriation I willnot be furnished a passport for travel abroad until my obligation toreimburse the Treasurer of the United States is liquidated.247However, a lookout card was never in fact prepared. With respect tothis failure the State Department has informed the Commission asfollows:
On receipt of notice of the loan from the Embassy in Moscow, theDepartment's procedures provided that Miss Leola B. Burkhead of theRevenues and Receipts Branch of the Office of Finance should havenotified the Clearance Section in the Passport Office of Oswald'sname, date, and place of birth. If the Passport Office received onlythe name and not the date and place of birth of a borrower, it wouldnot have prepared a lookout card under its established proceduresbecause of lack of positive identification. (Among the PassportOffice's file of millions of passport applicants, there are, ofcourse, many thousands of identical names.) Mr. Richmond C. Reeley wasthe Chief of the Revenues and Receipts Branch of the Office of Financeand Mr. Alexander W. Maxwell was Chief of the Clearance Section. Ifthe notice was received in the Clearance Section it would have beendelivered to the Carding Desk for preparation of a lookout card onOswald. It appears, however, that such a lookout card was notprepared. It may have been that the Finance Office did not notify theClearance Section of Oswald's loan. One reason for this might havebeen the Finance Office's lack of information concerning Oswald's dateand place of birth. On the other hand, the Finance Office may havenotified the Clearance Section of Oswald's name only, in which casethis Section would not have prepared a lookout card under itsprocedures. Since Oswald began repaying the loan installmentsimmediately after his return to the United States, it is also possiblethat the Office of Finance decided that it wasPage 773
unnecessary to pursue the matter further: In any event, Oswald's loanwas repaid in full on January 29, 1963, five months prior to hisapplication for a new passport.248OSWALD'S RETURN TO THE UNITED STATES AND REPAYMENT OF HIS LOAN
On June 1, 1962, the same day that Oswald received his loan fromthe State Department, he and his family left Moscow by train destinedfor Rotterdam, The Netherlands.249 They boarded the SS Maasdam atRotterdam on June 4 and arrived in New York on June 13, 1962.250 TheEmbassy sent word of the Oswalds' departure to the Department of Statein Washington on May 31.251 Consistent with its prior practice ofkeeping the Federal security agencies informed of Oswald'sactivity,252 the Department notified the FBI.253
Frederick J. Wiedersheim, an officer of the Immigration andNaturalization Service in New York, interviewed the Oswalds upon theirentry into the United States at Hoboken, N.J., on June 13, 1962, butmade no written report. Mr. Wiedersheim recalled that he asked theOswalds various questions which would determine the eligibility ofboth Oswald and Marina to enter the United States. The questionsincluded whether Oswald had expatriated himself and whether Marinabelonged to any Communist organization which would bar her entry.These questions were answered in ways which did not appear to raiseany problems and therefore the Oswalds were admitted.254
After his reentry, Oswald repaid his loan without having to bereminded by the Department to do so. The early payments were verysmall because he first repaid the approximately $200 he had borrowedfrom his brother Robert to apply against the expenses of his travelfrom New York to Fort Worth, Tex.255 The schedule of payments is asfollows:
| Aug. 13, 1962 | $10.00 |
| Sept. 5, 1962 | 9.71 |
| Oct. 10, 1962 | 10. 00 |
| Nov. 19, 1962 | 10. 00 |
| Dec. 11, 1962 | 190. 00 |
| Jan. 9, 1963 | 100.00 |
| Jan. 29, 1963 | 106. 00 |
| Total | 256435.71 |
ISSUANCE OF A PASSPORT IN JUNE 1963
On June 24, 1963, Oswald applied for a U.S. passport at thePassport Office in New Orleans, La.257 He said he was planning tovisit England, France, Holland, U.S.S.R., Finland, Italy, and Poland,and that he intended to leave the country sometime during November orDecember 1963 by ship from New Orleans.258 He stated further that
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he was married to a person born in Russia who was not an Americancitizen. For occupation, The word "Photographer" was inserted on theapplication.259
On the same day a teletype was sent to Washington containing thenames of 25 of the persons who applied for passports on that date inNew Orleans, Oswald's name among them. On the right side of theWashington Passport Office copy of the teletype message, approximatelyparallel to his name, are the letters, "NO," written in red pencil.260Oswald was issued a passport on June 25, 1963.261
Since there was no lookout card on Oswald, the passport wasprocessed routinely. Twenty-four hours is the usual time for routinelygranted passports to be issued.262 The handwritten notation, "NO,"which appeared beside Oswald's name on the list of applicants from NewOrleans, is a symbol for the New Orleans Passport Office that isroutinely placed on incoming teletype messages by anyone of a group ofpersons in the teletype section of the Passport Office.263 No onelooked at Oswald's file previously established with the Department.264The Department, however, has informed the Commission that at the timethe passport was issued there was no information in its passport orsecurity files which would have permitted it to deny a passport toOswald.265 No lookout card should have been in the file based uponthe Moscow Embassy's memorandum of March 28, 1960, which drewattention to Oswald's intention to expatriate himself, because thesubsequent determination that Oswald had not expatriated himself wouldremove expatriation as a possible ground for denying him apassport.266 And by January 29, 1963, the repatriation loan had beenrepaid, so a lookout card should not have been in the file on thatbasis.267
Oswald was entitled to receive a passport in 1963 unless he camewithin one of the two statutory provisions authorizing the Secretaryof State to refuse to issue it.268 Section 6 of the SubversiveActivities Control Act of 1950, which has recently been declaredunconstitutional,269 then provided:
... it shall be unlawful for any member of [an organizationrequired to register], with knowledge or notice that such organizationis so registered and that such order has become final--(1) to makeapplication for passport, or the renewal of a passport, to be issuedor renewed by or under the authority of the United States; or (2) touse or attempt to use any such passport. 270Pursuant to section 6, the State Department promulgated a regulationwhich denied passports to
... any individual who the issuing officer knows or has reasonto believe is a member of a Communist Organization registered orrequired to be registered under Section 7 of the Subversive ActivitiesControl Act of 1950 as amended.271Page 775
Since there is no evidence that Lee Harvey Oswald was a member of theAmerican Communist Party or any other organization which had beenrequired to register under section 7 of the Subversive ActivitiesControl Act,272 a passport could not have been denied him undersection 6.
Section 215 of the Immigration and Nationality Act provides that,while a Presidential proclamation of national emergency is in force,
... it shall, except as otherwise provided by the President, ** * beunlawful for any citizen of the United States to depart from or enter... the United States unless he bears a valid passport.273Because a proclamation of national emergency issued by PresidentTruman during the Korean war had not been revoked by 1963, theGovernment has taken the position that the statute remains inforce.274 Pursuant to section 215, the State Department has issuedregulations setting forth the circumstances under which it will refusea passport:
In order to promote and safeguard the interests of the UnitedStates, passport facilities, except for direct and immediate return tothe United States, shall be refused to a person when it appears to thesatisfaction of the Secretary of State that the person's activityabroad would: (a) violate the laws of the United States; (b) beprejudicial to the orderly conduct of foreign relations; or (c)otherwise be prejudicial to the interests of the United States.275The State Department takes the position that its authority underthis regulation is severely limited. In a report submitted to theCommission, the Department concluded that "there were no groundsconsonant with the passport regulations to take adverse passportaction against Oswald prior to November 22, 1963." 276 AlthoughOswald's statement in 1959 that he would furnish the Russians withinformation he had obtained in the Marine Corps may have indicatedthat he would disclose classified information if he possessed any suchin formation, there was no indication in 1963 that he had any valuableinformation.277 Moreover, Oswald's 1959 statement had been brought tothe attention of the Department of the Navy 278 and the FBI 279 andneither organization had initiated criminal proceedings. TheDepartment therefore had no basis for concluding that Oswald's 1959statement was anything more than rash talk.280 And the StateDepartment's files contained no other information which mightreasonably have led it to expect that Oswald would violate the laws ofthe United States when he went abroad.
The most likely ground for denying Oswald a passport in 1963,however, was provided by subsection (c) of the regulation quotedabove, which requires the denial of a passport when the Secretary of
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State is satisfied that the applicant's "activity abroad would ...otherwise be prejudicial to the interests of the United States." In1957 the State Department described to the Senate Foreign RelationsCommittee one category of persons to whom it denied passports underthis provision:
Persons whose previous conduct abroad has been such as to bringdiscredit on the United States and cause difficulty for otherAmericans (gave bad checks, left unpaid debts, had difficulties withpolice, etc.)281In light of the adverse publicity caused the United States by Oswald'sprior defection to the Soviet Union, he could have been considered aperson "whose previous conduct abroad had been such as to bringdiscredit on the United States." Indeed, the State Department itselfhad previously been of the opinion that Oswald's continued presence inRussia was damaging to the prestige of the United States because ofhis unstable character and prior criticisms of the United States.282
However, in 1958 the Supreme Court had decided two cases whichrestricted the Secretary of State's authority to deny passports. InKent v. Dulles 283 and Dayton v. Dulles,284 the Supreme Courtinvalidated a State Department regulation permitting the denial ofpassports to Communists and to those "who are going abroad to engagein activities which will advance the Communist movement for thepurpose, knowingly and willfully of advancing that movement," on theground that the regulation exceeded the authority Congress had grantedthe Secretary. The Kent opinion stressed the importance to be attachedto an individual's ability to travel beyond the borders of the UnitedStates:
The right to travel is a part of the "liberty" of which thecitizen cannot be deprived without due process of law under the FifthAmendment ... Freedom of movement across frontiers in eitherdirection, and inside frontiers as well, was a part of our heritage.Travel abroad, like travel within the country, may be necessary for alivelihood. It may be as close to the heart of the individual as thechoice of what he eats, or wears, or reads. Freedom of movement isbasic in our scheme of values.285The Kent opinion also suggested that grounds relating to citizenshipand allegiance to illegal conduct might be the only two upon which theDepartment could validly deny a passport application.
The Department, though publicly declaring that these decisions hadlittle effect upon its broadly worded regulation,286 in practicedenied passports only in limited situations. In 1963 the Departmentdenied passports only to those who violated the Department's travelrestrictions, to fugitives from justice, to those involved in usingpassports fraudulently, and to those engaged in illegal activityabroad or in conduct directly affecting our relations with aparticular coun-
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try.287 Passports were granted to people who the Department might haveanticipated would go abroad to denounce the United States, and to aprior defector.288 State Department officials believed that in view ofthe Supreme Court decisions, the Department was not empowered to denyanyone a passport on grounds related to freedom of speech or topolitical association and beliefs.289
Since Oswald's citizenship was not in question and since there wasno indication that he would be involved in illegal activity abroad,the only grounds upon which a passport might have been denied Oswaldwould have fallen within the area of speech or political belief andassociation. The Commission therefore concludes that the Departmentwas justified in granting a passport to Oswald on June 25, 1963.
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VISIT TO THE RUSSIAN EMBASSY IN MEXICO CITY
In October 1963, the Passport Office of the State Departmentreceived a report from the Central Intelligence Agency that Oswald hadvisited the Soviet Embassy in Mexico City.290 The report said nothingabout Oswald's having visited the Cuban Embassy in Mexico City, a factwhich was not known until after the assassination. Upon receipt of theinformation the passport file on lee Harvey Oswald was reviewed by thePassport Office.291 The CIA communication and the passport file wereread by an attorney and a supervisory attorney in that office whofound no basis for revoking Oswald's passport or for notifying the FBIor CIA that Oswald had been issued a new passport in June 1963.292 TheDepartment has informed the Commission that, "since the reportindicated no grounds for determining Oswald was ineligible for apassport, a determination was made that no action by the passportoffice was required." 293 Travel to Russia was not proscribed in 1963.Moreover, the Soviet Union was one of the countries Oswald had listedon his passport application. Hence, the Commission agrees thatOswald's taking steps to enter the Soviet Union in 1963 was not asufficient reason to revoke his passport.
Later, on November 14, 1963, the FBI sent the Department a reporton Oswald's arrest in New Orleans, La. during August in connectionwith a fistfight in which he became engaged when passing out pamphletsentitled "Hands Off Cuba." No action was taken on the basis of theBureau's report.294 The Commission agrees that this incident was notgrounds for revoking Oswald's passport.
CONCLUSIONInvestigation of Oswald's complete dealings with the Department ofState and the Immigration and Naturalization Service reveals noirregularity suggesting any illegal actions or impropriety on the partof government officials. The Commission believes, however, that in ap-
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plying its own regulations the Department should in all cases exercisegreat care in the return to this country of defectors such as Oswaldwho have evidenced disloyalty or hostility to this country or who haveexpressed a desire to renounce their U.S. citizenship and that, whensuch persons are returned, procedures should be adopted for the betterdissemination of information concerning them to the intelligenceagencies of the Government. The operation of the "lookout card" systemin the Department of State was obviously deficient, but since thesedeficiencies did not affect Oswald or reflect any favoritism orimpropriety, the Commission considers them beyond the scope of itsinquiry.
Especially while he was in the Soviet Union, Oswald's manner toGovernment personnel was frequently insulting and offensive. As one1962 communication between the Embassy and the Department of Stateobserved, "It is not that our hearts are breaking for Oswald. Hisimpertinence knows no bounds." 295 Nonetheless, the officials of theU.S. Government respected Oswald as a troubled American citizen andextended to him the services and assistance for which the agencies ofgovernment have been created. Though Oswald was known to be "anunstable character, whose actions are highly unpredictable," 296 therewas no reasonable basis in 1961 and 1962 for suspecting that upon hisreadmittance to the country he would resort to violence against itspublic officials. The officers of the Department of State and theImmigration and Naturalization Service, acting within the properlimits of their discretion, concluded that Oswald's return to theUnited States was in the best interests of the country; it is onlyfrom the vantage of the present that the tragic irony of theirconclusion emerges.
Bibliographic note: Web version based on Report of the President's Commission on the Assassination of President John F. Kennedy, Washington, DC: United States Government PrintingOffice, 1964. 1 volume, 888 pages. The formatting of this Web version may differ from the original.
Go to theFootnotes for this chapter
Report Table of Contents
- Title Page, Commission Members, Transmittal Letter
- Foreword
- Chapter 1: Summary and Conclusions
- Chapter 2: The Assassination
- Chapter 3: The Shots from the Texas School Book Depository
- Chapter 4: The Assassin
- Chapter 5: Detention and Death of Oswald
- Chapter 6: Investigation of Possible Conspiracy
- Chapter 7: Lee Harvey Oswald: Background and Possible Motives
- Chapter 8: The Protection of the President
- Appendix 1: Press Release Announcing Appointment of Commission
- Appendix 2: Press Release Announcing Appointment of Commission
- Appendix 3: Pub. Law 88-202
- Appendix 4: Biographical Information and Acknowledgments
- Appendix 5: List of Witnesses
- Appendix 6: Commission Procedures for the Taking of Testimony
- Appendix 7: A Brief History of Presidential Protection
- Appendix 8: Medical Reports from Doctors at Parkland Memorial Hospital, Dallas, Tex.
- Appendix 9: Autopsy Report and Supplemental Report
- Appendix 10: Expert Testimony
- Appendix 11: Reports Relating to the Interrogation of Lee Harvey Oswald at the Dallas Police Department
- Appendix 12: Speculations and Rumors
- Appendix 13: Biography of Lee Harvey Oswald
- Appendix 14: Analysis of Lee Harvey Oswald's Finances from June 13, 1962, through November 22, 1963
- Appendix 15: Transactions between Lee Harvey Oswald and Marina Oswald, and the U.S. Department of State and the Immigration and Naturalization Service of the U.S. Department of Justice
- Appendix 16: A Biography of Jack Ruby
- Appendix 17: Polygraph Examination of Jack Ruby
- Appendix 18: Footnotes
- Index