UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
March 18, 1971
Ernest MANDEL, David Mermelstein, Wassily Leontief, Norman Birnbaum, Robert L. Heilbroner, Robert Paul Wolff, Louis Menashe, Noam Chomsky, and Richard A. Falk, Plaintiffs,
John M. MITCHELL, Attorney General of the United States, William P. Rogers, Secretary of State, Defendants
The opinion of the court was delivered by: DOOLING
DOOLING, District Judge.
The suit seeks a declaratory judgment that on its face and as applied Section 212(a)(28) and (d)(3)(A) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1182(a)(28)(d)(3)(A) is unconstitutional. Section 212(a)(28) of the Act declares ineligible for visas and excludes from admission to the United States aliens who are or at any time were members of described classes of aliens identified with certain leftist and extremist political doctrines; Section 212(d)(3)(A) authorizes the temporary admission of an ineligible and excluded alien in the unbounded discretion of the Attorney General after the Attorney General approves a recommendation of the Secretary of State or the consular officer that the alien be admitted temporarily despite his ineligibility. Plaintiff Mandel, who had been admitted in the Attorney General's discretion exercised under Section 212(d)(3)(A) in 1962 and 1968, was denied admission in 1969 on the ground that the consular officer had found him ineligible for a visa "because his subversive affiliations," and his "flagrant abuse of the opportunities afforded him to express his views in this country" during his 1968 visit made a favorable exercise of the discretion to admit him unwarranted.
Plaintiff Mandel is joined in his suit by professors of institutions of higher education some of whom had invited him to speak on specified dates in 1969 at specified colleges or universities and at three conferences. Alleging that the plaintiff professors and other citizens desire to have Mandel speak at universities and other forums to hear his views and engage in "free and open academic exchange," that they have to that end invited him to participate in a series of university conferences and public forums, that Mandel has accepted the invitation and that clearing his admissibility in advance of again setting up a schedule of appearances is necessary, plaintiffs charge that Section 212(a)(28) and (d)(3)(A) of the Act is invalid under the First and Fifth Amendments as imposing a prior restraint on constitutionally protected communication, predicating exclusion on belief and advocacy not allied with "unlawful speech or conduct," denying the equal protection of the law in excluding leftists but not rightist extremists, failing to provide due process safeguards for determining ineligibility, and failing to provide standards for the exercise of the Attorney General's discretion to exclude, and, that in the particular case of Mandel, the Secretary and Attorney General have acted arbitrarily without evidence sufficient to support a finding of ineligibility, or to furnish a basis for rejecting the Secretary's recommendation that Mandel be admitted temporarily.
Plaintiffs move for a preliminary injunction restraining the Attorney General and Secretary of State from enforcing Section 212(a)(28) and (d)(3)(A) of the Act as against plaintiffs. Since the injunction sought would restrain the enforcement, operation or execution of an Act of Congress for repugnance to the Constitution, a three judge court is required to pass on the motion and has been designated by the Chief Judge of the Second Circuit, 28 U.S.C. §§ 2282, 2284.
It is concluded that plaintiffs are entitled to the preliminary injunction they seek.
The parties agree that there is no relevant controversy on the facts, and that the facts presented lead directly to the heart of the questions of "standing" and validity that the case presents.
Ernest Mandel is a citizen of Belgium, editor-in-chief of the Belgian Left-Socialist weekly LA GAUCHE, and the author of a two volume text entitled "Marxist Economic Theory" published in 1969. It appears not to be denied that Mandel can correctly be categorized as "an orthodox Marxist of the Trotskyist school," and, in a speech, said to have been given by tape recording at a conference in New York on November 29, 1969, Mandel described himself as "an exponent" of the doctrine of Karl Marx. The text of the speech is resolutely Marxist in its claims (e.g., referring to the trend of working-class initiatives in Western Europe as indicating revolutionary potential, the text continues "And this is why a revolutionary strategy in the Marxist sense of the word is both possible and indispensable, if the new upsurge of working class militancy which is now in full swing in Europe is not to end in defeat as it did in the previous three main periods of upsurge: that at the end of World War I; that during the mid-thirties; and that at the end of World War II"). The speech concludes, in a passage that at once exemplifies Mandel's academic advocacy of revolutionary doctrine and marks its difference from incitement to subversive action:
"This conclusion brings us back to the starting point. What are the agencies of social change in the West today? It is the basic thrust of the productive forces themselves, undermining, eroding, and shaking periodically in a violent way private property, the nation-state, and generalized market economy. It is the inevitable periodic explosions of labor's discontent against its alienation as producer, against the capitalist relations of production at plant level, locally, regionally, or nationally. It is the reemergence of revolutionary consciousness in the youth through the transmission belts of the colonial revolution, the student revolt, the rise of a new generation of revolutionary teachers, scientists, technicians, and intellectuals. It is the potential fusion of that revolutionary consciousness with large masses of workers through campaigns and actions for transitional demands, culminating in workers' control of production. And it is the building of the revolutionary party and the revolutionary International. The better we succeed in combining all these elements, the closer we shall be to a socialist world and to the emancipation of labor and of all mankind!"
It is not claimed that Mandel is a member of the Communist Party or its affiliates, and Mandel has asserted on his visa applications that he is not.
Mandel had been admitted to the United States in 1962 (as a working journalist) and again in 1968, on both occasions -- although the Department of State concedes that the fact was not brought home to him -- after a finding of political ineligibility and an exercise in his favor of the Attorney General's discretion to admit him temporarily under Section 212(d)(3) of the Act on recommendation of the Department of State. During his 1968 visit Mandel accepted speaking engagements at more than 30 universities or colleges in the United States and Canada (including Harvard, Swarthmore, Antioch, Michigan, Notre Dame and Berkeley); he was at Columbia three times, at the University of Pennsylvania twice, and spoke at the Socialist Scholars Conference at Rutgers. His visit apparently extended from early September until November.
In 1969 Mandel was invited to participate in a conference on "Technology and the Third World" at Stanford University on October 17 and 18 as a speaker and as a panelist to discuss a speech to be given by Professor John K. Galbraith of Harvard; he was the recipient also of faculty requests to speak or lecture during his visit at several universities or colleges including Princeton, Amherst, the New School, Columbia and Vassar, of a student-group request to participate in a conference on social and economic conversion to the demands of a peace-oriented society at Massachusetts Institute of Technology, and he was to speak at a conference arranged by the Bertrand Russell Peace Foundation and the Socialist Scholars Conference on "Agencies of Social Change," his individual subject to be "Revolutionary Strategy in the Imperialist Countries."
Mandel applied in Brussels for a visa on September 8, 1969, to attend the Stanford conference, to leave for the United States on October 14 and stay six days. He was told orally on October 23 and by letter of October 30, 1969, that a visa and waiver had been refused; the letter explained that he had been ruled ineligible for admission under Section 212(a)(28) in 1962, that in 1962 and in 1968 upon Embassy recommendation the Department of State had exercised its discretion to grant temporary admission under Section 212(d)(3), but that the waiver requested of Washington in September had been denied. The Consul advised that a second request for waiver was being forwarded in connection with Mandel's new-filed application of October 22 for a visa to lecture and attend conferences at various institutions. A State Department letter of November 6, 1969, to plaintiffs' counsel explained that the earlier "waivers" were conditioned on conformity to the itinerary, activities and purposes stated in the visa application, that in 1968 Mandel had engaged in activities beyond the stated purposes of his trip, that on that ground a waiver had not been sought on the September visa application but that since Mandel may not have known the conditions on which the earlier visas had been issued, and had now engaged to conform to his stated itinerary and purposes, the Department was reconsidering his case and discussing it with the Department of Justice. On January 27, 1970, the Department of State advised the Bertrand Russell Peace Foundation that the Department of State
"* * * in the interest of free expression of opinion and exchange of ideas, [had] recommended a waiver for Mr. Mandel. The Immigration and Naturalization Service (acting for the Attorney General) responded that a waiver was not warranted."
By letter of February 13, 1970, the Department of Justice (Immigration and Naturalization Service) advised plaintiffs' counsel, after explaining the earlier determination that Mandel "was ineligible * * * because of his subversive affiliations," that
"On his last visit in 1968, Mr. Mandel's entry was authorized for a series of academic engagements in the United States. His activities, while here, were much reported to the press and went far beyond the stated purposes of his trip, on the basis of which his admission had been authorized and represented a flagrant abuse of the opportunities afforded him to express his views in this country.
"Accordingly, when the recent recommendation was made that he be permitted to enter for a third time, it was concluded that the favorable exercise of discretionary authority provided under the Immigration and Nationality Act was not warranted and his temporary admission was not authorized. There is no basis for changing this determination."
The plaintiffs other than Mandel are citizens of the United States who had issued invitations to Mandel in 1969 (i.e., plaintiffs Birnbaum, Heilbroner), or were to participate in programs in which Mandel was also invited to participate (i.e., Chomsky), or wish to have Mandel speak at universities and other forums. It is alleged that plaintiffs are unable to set dates for a program of appearances because Mandel's eligibility status make it impossible to assure his appearance. Plaintiffs have on that basis joined Mandel in the present suit to enjoin enforcement against him of the exclusion provision on constitutional grounds.
The Government opposes the motion on the ground, not challenged, that Mandel is an advocate of the "economic, international and governmental doctrines of world communism" and therefore ineligible to receive a visa under Section 212(a)(28)(D) and also an alien who writes and publishes matter advocating and teaching the doctrines of world communism and therefore ineligible to receive a visa under Section 212(a)(28)(G)(v). The Government's position is that the Attorney General is not required to have factual support for or to justify his discretionary decision not to grant temporary admission since the power to exclude is absolute and waiver of exclusion purely a matter of grace.
To determine the ultimate issue in the case and the dependent issue of "standing" requires first an analysis of the substantive content of Section 212(a)(28) in its relation to the First Amendment, and then a consideration of the effect of the statute's operating only to define occasions for a discretionary exercise of the plainly sweeping power to exclude aliens (Boutilier v. Immigration & Naturalization Service, 1967, 387 U.S. 118, 123-124, 87 S. Ct. 1563, 18 L. Ed. 2d 661; United States ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 542-544, 70 S. Ct. 309, 94 L. Ed. 317). Section 212(a)(28) is one lengthy part of a set of exclusions and definitions in the Act all of which bear to some extent on the interpretation of Section 212(a)(28). The relevant parts of Sections 101(a)(37), (40), 212(a)(9), (10), (27), (28), (29), (d)(3), 5), (6), 235(c) (8 U.S.C. §§ 1101(a)(37), (40), 1182(a)(9), (10), (27), (28), (29), (d)(3), (5), (6), 1225(c)) are given in the Appendix.
Subsection (a)(28) treats as substantively evil political doctrines, associations and activities (A) anarchy, (B) opposition to all organized government, (C) the Communist Party of the United States, any other totalitarian party of the United States, the Communist Political Association, and their local counterparts, (D) the economic, international, and governmental doctrines of world communism and (F), (G), (i) the overthrow by force, violence or other unconstitutional means of the Government of the United States or of all forms of law, (ii) the unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally), (iii) the unlawful damage, injury, or destruction of property, (iv) sabotage, and (v) the establishment in the United States of a totalitarian dictatorship. The existence of valid Governmental power to prevent by anticipation the translation of the proscribed doctrines into the forbidden subversive activities may be considered established at least at the extreme of likely incitement to or production of subversive action, for at that point pure communication is not involved, but the verbal steps that set attack in train are being taken. Dennis v. United States, 1951, 341 U.S. 494, 508, 510-512, 545, 71 S. Ct. 857, 95 L. Ed. 1137 (concurring opinion); Yates v. United States, 1957, 354 U.S. 298, 324-325, 340, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (Black, J., concurring and dissenting); Brandenburg v. Ohio, 1969, 395 U.S. 444, 447, 89 S. Ct. 1827, 23 L. Ed. 2d 430; cf. Scales v. United States, 1961, 367 U.S. 203, 228-229, 81 S. Ct. 1469, 6 L. Ed. 2d 782. Subsection (a)(28), however, is explicit in its selective direction against that which is specifically not active subversion but belief and preachment. It operates not only against present adherence to disfavored political doctrines, associations and programs but also against any past adherence to them. It embraces not advocacy alone but teaching as well, and any affiliation with any organization that either advocates or teaches the doctrines or programs. It reaches not only personal advocacy or teaching but also either writing or publishing or wittingly circulating or printing or displaying (or possessing for any of those purposes) any printed or written matter advocating or teaching the disfavored doctrines or programs; beyond that it extends to membership in or affiliation with any organization so resorting to the printed or written word or its circulation. Present or past Communist party membership or affiliation are also embraced in the subsection.
The Government points to Subsection (a)(28)(D) and (G)(v) as particularly applicable to Mandel. The first part, (a)(28)(D) defines a class whose members are neither anarchists, nor advocates or teachers of opposition to all organized government, nor members of or affiliated with any organization that advocates or teaches that doctrine, nor a member of or affiliated with any Communist or Totalitarian Party (or their predecessor or successor organizations) but who are, or at any time have been, advocates of the economic, international, and governmental doctrines of world communism or advocates of the establishment in this country of totalitarian dictatorship, or who are members of or affiliated with any organization that advocates such communism or totalitarianism either through its own utterances or through publications it either issues or permits or authorizes or finances. The second part, (G)(v), describes those who are or ever have been members of the class of aliens who write or publish, or knowingly circulate, print, display (or possess for those purposes) any written or printed matter advocating or teaching the economic, international, and governmental doctrines of world communism or advocating or teaching the establishment in this country of a totalitarian dictatorship. Because the strictures of the statute thus calculatedly fall precisely upon teaching and advocacy as such, they are, unless their presence in an alien exclusion code alters the result, invalidated by the First Amendment. Brandenburg v. Ohio, 1969, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430; United States v. Robel, 1967, 389 U.S. 258, 262, 88 S. Ct. 419, 19 L. Ed. 2d 508.
The statutory strictures are not relieved of the directness of their impact on interests protected by the First Amendment because they do no more than add to the number of the aliens who may be excluded. In the context in which Section 212(a)(28) functions it operates to exclude only aliens who by every other statutory standard of admissibility are not excludable; it excludes them not for any reason related to their alienage but solely for their present or former political associations, or doctrines, or advocacies, or teachings. The sole and selective effect of the statute is to operate as a means of restraining the entry of disfavored political doctrine, and it is a forbidden enactment. Lamont v. Postmaster General, 1965, 381 U.S. 301, 305, 85 S. Ct. 1493, 14 L. Ed. 2d 398; Cf. Near v. Minnesota, 1930, 283 U.S. 697, 713-721, 51 S. Ct. 625, 75 L. Ed. 1357; Aptheker v. Secretary of State, 1964, 378 U.S. 500, 510-511, 84 S. Ct. 1659, 12 L. Ed. 2d 992; Shuttlesworth v. City of Birmingham, 1969, 394 U.S. 147, 150-151, 89 S. Ct. 935, 22 L. Ed. 2d 162.
The subsection does not deal with subversive activities. Subsections (a)(27) and (a)(29) deal with "activities." Subsections (a)(27) excludes aliens who, it is officially believed, seek to enter "solely, principally, or incidentally" to engage in activities prejudicial to the public interest or to endanger the welfare, safety or security of the United States. Subsection (a)(29) excludes aliens who, it is officially believed, "probably would, after entry," either (A) engage in activities prohibited by the laws of this country relating to "espionage, sabotage, public disorder, or in other activity subversive to the national security," or (B) "engage in any activity the purpose of which is the opposition to, or the control or overthrow of, the Government of the United States, by force, violence, or other unconstitutional means." Subsection (d)(3) operatively contrasts subsection (a)(28) with subsections (a)(27) and (a)(29). Subsection (d)(3) pointedly withholds the discretionary power of temporary admission from the Secretary of State and the Attorney General in the case of aliens inadmissible under Subsection (a)(27) and (a)(29). (They may be paroled into the country temporarily "for emergent reasons or for reasons deemed strictly in the public interest." See subsection (d)(5)).
The effect of Subsection (a)(28) on interests protected by the First Amendment is not here an unintended and tolerable effect of a valid exercise of a power of Government directed to an end other than limitation of First Amendment rights. That was the case in United States v. O'Brien, 1968, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672: fair and effective exercise of the power of conscription required registration of those eligible for conscription and their identification; thence flowed the power to forbid mutilation or destruction of Selective Service certificates notwithstanding that particular acts of destruction might be intended as dramatic communications of the registrants' political opposition to the Vietnam hostilities (391 U.S. at 381-382, 88 S. Ct. 1673, 20 L. Ed. 2d 672); the terms of the statute did not limit its penal sanction to the cases of "symbolic speech" but, conspicuously, comprehended furtive destruction by draft evaders or others. So too in Teague v. Regional Commissioner, 2d Cir. 1968, 404 F.2d 441, cert. denied, 1969, 394 U.S. 977, 89 S. Ct. 1457, 22 L. Ed. 2d 756 (three justices dissenting, two in an opinion of Mr. Justice Black) the statute and regulations were addressed to withholding American currency from areas with which the Government had, under the Trading with the Enemy Act, suspended substantially all trade except under license; the control scheme was held not invalid as it applied to publications since it was not addressed to restricting the flow of ideas and only incidentally burdened that flow, nor did it select publications according to their content for restriction.
In the present case the impact of subsection (a)(28) on interests protected by the First Amendment is not outweighed by any compensating protection it gives against an evil shown to be grave to some interest clearly within the sphere of governmental concern. Cf. Speiser v. Randall, 1958, 357 U.S. 513, 527, 78 S. Ct. 1332, 2 L. Ed. 2d 1460. Where a distinct governmental interest of importance is sought to be subserved and effective pursuit of it involves a calculated sacrifice of First Amendment interests that could not otherwise be found valid, the importance of the governmental interest weighed against the degree of First Amendment loss may, it has been thought, be found on balance to justify a limited sacrifice of the First Amendment interest. American Communications Association v. Douds, 1950, 339 U.S. 382, 392-400, 70 S. Ct. 674, 94 L. Ed. 925; Konigsberg v. State Bar of California, 1961, 366 U.S. 36, 50-51, 81 S. Ct. 997, 6 L. Ed. 2d 105. But United States v. Robel, 1967, 389 U.S. 258, 264-268, 88 S. Ct. 419, 19 L. Ed. 2d 508 (and see footnote 20), if it does not altogether reject such analysis, confines it narrowly, and seems at minimum to exact a demonstration that there was no reasonable alternative, and that the statute has the least drastic impact on First Amendment interests that the circumstances admit. Subsection (a)(28), however, is not within the class of enactments to which the "balancing" test could apply. The power to exclude aliens is not questioned: there is not here any distinct aim of the exercise of that power that is primary and to the attainment of which the restraint of First Amendment interests is sacrificed in a secondary or mediating exercise of power. Here the substance of the exercise of the power is the restraint on interests protected by the First Amendment.
The further question is whether the strictures of subsection (a)(28), although such strictures are forbidden as part of domestic law, may nevertheless be valid when used to classify aliens and exclude them absolutely or conditionally; it might be supposed that if the ultimate evil guarded against -- violent revolution or subversion by revolutionary communism -- were peculiarly connected with alien sources and peculiarly likely to be activated by alien emissaries, such considerations might justify an abridgement of freedom of speech, press and assembly at a point well before they could be shown to be instances of present incitement. United States ex rel. Turner v. Williams, 1904, 194 U.S. 279, 24 S. Ct. 719, 48 L. Ed. 979, sustained the deportation of a resident alien where evidence before the board of inquiry supported the conclusion that Turner was an anarchist in the popular sense of being one who believed in or advocated the overthrow of the government or of all government by force or the assassination of officials, and the Court was unable to say (194 U.S. at 294, 24 S. Ct. at 724) "that the inference was unjustifiable either that he contemplated the ultimate realization of his ideal by the use of force, or that his speeches were incitements to that end." But Mr. Chief Justice Fuller indicated that the national interest in self-preservation warranted the Congress, despite the First Amendment, in excluding philosophical anarchists, innocent of evil intent, if the Congress was of opinion that the tendency of the general exploitation of such views was so dangerous to the public weal that aliens holding and advocating such views should not be added to the population. Mr. Justice Brewer put his concurrence on the narrow ground that the evidence supported a deduction that Turner was an anarchist in the sense of "one who urges and seeks the overthrow by force of all government." Cf. Dennis v. United States, supra, 341 U.S. at 509-515, 71 S. Ct. 857, 95 L. Ed. 1137. If Turner were thought to imply that a different and looser test of First Amendment validity can be applied in alien deportation and exclusion cases, Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 591-592, 72 S. Ct. 512, 96 L. Ed. 586, appears clearly to assume that such cases must meet the standard of Dennis ; the Court did not rely upon Turner (which was cited to it) nor invoke the argument (made to it) that the power to expel aliens is an attribute of sovereignty essentially relating to foreign affairs and national safety and, therefore, not restricted impliedly by provisions of the Constitution which do not expressly relate to it. More clearly, Aptheker v. Secretary of State, 1964, 378 U.S. 500, 510-512, 84 S. Ct. 1659, 12 L. Ed. 2d 992, imposed the Dennis standard in a cognate field to invalidate passport control of the travel of citizens identified as members of the Communist Party. Cf. Kent v. Dulles, 1958, 357 U.S. 116, 130, 78 S. Ct. 1113, 2 L. Ed. 2d 1204. So, in the equally if not more sensitive area of employment in defense industry, absence of the Dennis limitations was fatal to the effort to exclude members of organizations operating primarily to advance the objectives of the world Communist movement. United States v. Robel, supra, 389 U.S. at 262-268, 88 S. Ct. 419; cf. Shelton v. Tucker, 1960, 364 U.S. 479, 486-487, 488, 81 S. Ct. 247, 5 L. Ed. 2d 231 (cannot require public school teacher to disclose all associational ties despite recognized state concern for teacher competence and fitness).
That the Congress and the states have been steadily concerned with the threat of international world communism and with anarchistic doctrine that connotes revolution against all government would appear to be a consequence of the doctrines' uncompromising inclusion as a critical element -- and as their distinguishing element -- of the teaching that a resort to revolution is necessary, that subversion of existing government by force and violence is a necessity. The doctrines are viewed as teaching and are denounced because they affirmatively teach that it is futile to aspire to alter the plan of government or its programs through the means of representative government and that the entire frame of government, including its basic constitution, must be uprooted by the forcible seizure of the total power to govern. Although the nature of the doctrines explains the degree and persistence of legislative concern with them, the First Amendment has been held nonetheless to exact a dichotomy between the protected freedom to preach the doctrines thus legislatively pronounced to be abhorrent to the nation's free institutions and the punishable illegality of taking significant action to initiate subversion and revolution. The difficulty and the necessity of drawing that fundamental distinction appears no less from Dennis and Yates than from Communication Workers and Robel. The nature of the First Amendment in its relation to the basis of government under the Constitution explains the distinction, the reason why the Amendment must prevail as well in the context of the power to exclude aliens and the reality of the plaintiffs' standing to challenge the subsection in the present action.
New York Times Co. v. Sullivan, 1964, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686, marks the emergence in clarity of the view of the First Amendment as a fundamental principle of the form of American constitutional government; accepting the premise that the people, not the government, possess the sovereignty, and that by the First Amendment they emphasized the withholding from the federal government of the power to make laws affecting (in Sullivan) the freedom of the press, the Court considered that the power was denied as well to the states by the Fourteenth Amendment's incorporation of the First Amendment. The Court found in the turbulent history of the Sedition Act of 1798 the first crystallization of national awareness of the central meaning of the First Amendment, and that the right of free public discussion of the stewardship of public officials was, as Madison had then asserted, a fundamental principle of the American form of government (376 U.S. at 273-278, 84 S. Ct. 710, 11 L. Ed. 2d 686). The Court quoted Madison's sharp comment, earlier, in 1794, that "the censorial power is in the people over the Government, and not in the Government over the people." That comment was made in course of an extended debate in the House on a motion to include in a response to President Washington's report of the military steps he had taken to put down the so-called "Whisky Rebellion," a "reprobation" of the role in the rebellion of certain " self-created societies" (4 Annals of Congress, pp. 899, 946, ); President Washington had charged "certain self-created societies" with attempting to help defeat the operation of the excise tax by "assuming the tone of condemnation" (4 Annals of Congress, p. 788). The motion to include the censure of the self-created societies was overwhelmingly defeated (4 Annals of Congress, p. 945) despite arguments that such a vote might appear to deny support to the President and that mere censure of utterance did not imply or rest on a presumption of power to legislate against such utterances. (4 Annals of Congress, pp. 899-946) West Virginia State Board of Education v. Barnette, 1942, 319 U.S. 624, 641-642, 63 S. Ct. 1178, 1187, 87 L. Ed. 1628, had earlier than Sullivan indicated an approach similar to that of Sullivan, the Court there saying that, "We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority * * * freedom to differ is not limited to things that do not matter much. * * * The test of its substance is the right to differ as to things that touch the heart of the existing order." In the later case of Garrison v. Louisiana, 1964, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125, extending the principle of Sullivan to the criminal libel context, the Court again observed that "speech concerning public affairs is more than self-expression; it is the essence of self-government" (379 U.S. at 74-75, 85 S. Ct. at 216). The First Amendment, thus, guarantees to the people as sovereign as the retained attribute of their ultimate sovereignty, their right, in open and wide-ranging debate, publication and assembly, to review the government they have created, the adequacy of its functioning and the presence or absence of a need to alter or displace it. See Meiklejohn, The First Amendment is an Absolute (The Supreme Court Review, 1961, Kurland ed.) 245, 255-263; Kalven, The New York Times Case: A Note on the Central Meaning of the First Amendment (The Supreme Court Review, 1964, Kurland ed.) 191, 207-210, 220-221; Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 1965, 79 Harv. L. Rev. 1, 10-14, 18-19.
The exercise of Congressional power that permissibly affects speech, press or assembly can not be a direct exercise of a power to control speech, press or peaceable assembly, but can only be an exercise of some other and undoubted power directed to an end other than restricting speech, press or peaceable assembly. In the case of such statutes as the Smith Act (18 U.S.C. § 2385), directed against subversive activity, a source of the power can readily be found in the express Congressional power to suppress insurrection (Article 1, Sec. 8, Cl. 15), and the Smith Act as an exercise of that power is justified, as Dennis shows, in terms of the immediacy of its relation to the preventing of subversive action (341 U.S. at 494, 509-510, 71 S. Ct. 857, 95 L. Ed. 1137); in O'Brien the power is the power to raise and support armies (391 U.S. at 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672) and the particular exercise of it is justified in terms of its relation to that end (391 U.S. at 380, 88 S. Ct. 1673, 20 L. Ed. 2d 672); but in the case of Robel, although the Congress is exercising the war power, the attempted exercise is invalid under the First Amendment because the restriction on the rights of association is not proximately related as in Dennis -- to preventing insurrection that would threaten the achievement of the war-power objective (389 U.S. at 264-266, 88 S. Ct. 419, 19 L. Ed. 2d 508); and, similarly, in Aptheker the power is the power to provide for national security and the attempted exercise of it fails because, again, the magnitude of the effect of the inclusively phrased statute on First Amendment rights is not justified by the immediacy of the relation of the particular exercise of the security power to the achieving of the security objective (378 U.S. at 500, 508-509, 512-513, 84 S. Ct. 1659, 12 L. Ed. 2d 992). Robel and Aptheker make clear that it is not enough that an undoubted Congressional power is being exercised; the effect on First Amendment rights is justified only if the particular exercise of the power unavoidably entails that effect as an unsought incident to attaining the end for which the legislative power exists and is exercised. Cf. Brandenburg v. Ohio, supra, 395 U.S. at 447-448, 89 S. Ct. 1827, 23 L. Ed. 2d 430.
The nature of the First Amendment rights as a retained attribute of the sovereignty of the people is reflected in the emphasis that recent adjudications particularly have given to the "right to hear." Lamont v. Postmaster General, 1965, 381 U.S. 301, 85 S. Ct. 1493, 14 L. Ed. 2d 398, illustrates it in keeping unfettered the right of an addressee to receive communist political propaganda without having to request its delivery by the Post Office in writing. Cf. Martin v. City of Struthers, 1943, 319 U.S. 141, 143, 63 S. Ct. 862, 863, 87 L. Ed. 1313 (the right of freedom of speech and press embraces the right to distribute literature "and necessarily protects the right to receive it"). Stanley v. Georgia, 1969, 394 U.S. 557, 564, 89 S. Ct. 1243, 1247, 22 L. Ed. 2d 542, is explicit that the Constitution protects the right to receive information and ideas, that the right to receive information and ideas, regardless of their social worth, "is fundamental to our free society." And Red Lion Broadcasting Co. v. F.C.C., 1969, 395 U.S. 367, 389-390, 89 S. Ct. 1794, 23 L. Ed. 2d 371 notes the paramountcy in the radio broadcasting context of the public right to hear under the First Amendment; the Court returned to the earlier statement in Garrison (379 U.S. at 74-75, 85 S. Ct. at 216) that speech concerning public affairs is more than self-expression, "it is the essence of self-government." See also Brooks v. Auburn University, 5th Cir. 1969, 412 F.2d 1171, 1172; Teague v. Regional Commissioner, supra, 404 F.2d at 445 (dollar exchange regulations "impinge on First Amendment freedoms," but not impermissibly); Molpus v. Fortune, N.D. Miss. 1970, 311 F. Supp. 240, 249; United States v. Thirty-seven (37) Photographs, C.D. Cal. 1970, 309 F. Supp. 36, 38; Smith v. University of Tennessee, E.D. Tenn. 1969, 300 F. Supp. 777, 780; Snyder v. Board of Trustees, N.D. Ill. 1968, 286 F. Supp. 927, 931-932.
The presence of the First Amendment in the Bill of Rights rather than in the main body of the Constitution does not imply that it is no more than a modal restriction on a general power elsewhere granted or assumed to exist by implication. The Pinckney Plan for a federal government would have included a provision respecting the freedom of the press (3 Farrand, The Records of the Federal Convention of 1787, (1937 rev. ed.) 595, 599, 609). His plan as presented included a clause that "The liberty of the Press shall be inviolably preserved" (2 Farrand 334, 341). During the debates Pinckney and Gerry together moved to include in the Constitution a clause in that language, 2 Farrand 617; Sherman is reported in Madison's notes then to have said simply, "It is unnecessary -- The power of Congress does not extend to the Press," and the clause was voted down (2 Farrand 618, cf. ib. 611). Pinckney in addressing the South Carolina legislature ascribed the absence of a free press clause to the Convention's conclusion that, "The general government has no powers but what are expressly granted to it; therefore it has no power to take away the liberty of the press. That invaluable blessing * * * is secured by all our state constitutions; and to have mentioned it in our General Constitution would perhaps furnish an argument, hereafter, that the general government had a right to exercise powers not expressly delegated to it." (3 Farrand 256; 4 Elliot, Debates on the Adoption of the Federal Constitution, 315-316.) Wilson made a similar argument to the Pennsylvania convention respecting the omission of a Bill of Rights (3 Farrand 143-144; 161-162 "* * * not only unnecessary but improper. * * * Enumerate all the rights of men! * * * no gentleman in the late convention would have attempted such a thing;" see also 2 Elliot 435-436, 453-454). Hamilton in the Federalist (No. LXXXIV) emphasized in the same way that the Constitution was not a pact between a people and their sovereign (as were Magna Charta and the Petition of Right), but was founded on the power of the people, marked no surrender of right by the people and required no express reservation of their unsurrendered rights -- "Why, for instance, should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed?" Jefferson, who, as President, treated the Sedition Act as a nullity for constitutional reasons and "discharged every person under punishment or prosecution under the Sedition law", considered that the Congress had been denied the right to control the freedom of the press, the states only having the exclusive power; he noted that in general state laws made the presses responsible for slander "as far as is consistent with their useful freedom. In those states where they do not admit even the truth of allegations to protect the printer, they have gone too far." 1 Adams-Jefferson Letters (Univ. of N.C. Press, 1959) 275, 281. Cf. Garrison v. State of Louisiana, supra, 379 U.S. at 67-73, 75, 85 S. Ct. 209; New York Times Co. v. Sullivan, supra, 376 U.S. at 278-279, 84 S. Ct. 710, 11 L. Ed. 2d 686, requiring recognition of the defense of truth.
Since the First Amendment is not in its primary and most significant aspect a grant by the Constitution to the citizens of individual rights of self-expression but on the contrary reflects the total retention by the people as sovereign to themselves of the right to free and open debate of political questions, the issue of "standing to sue" is immediately seen to be unreal. The concern of the First Amendment is not with a non-resident alien's individual and personal interest in entering and being heard, but with the rights of the citizens of the country to have the alien enter and to hear him explain and seek to defend his views; that, as Garrison and Red Lion observe, is of the essence of self-government. Mandel's status as a party does not rest on any individual right to enter (for he has none) but exists only as against the effort to exclude him on a ground that denies to citizens of this country their primary rights to hear Mandel and debate with him. Here the plaintiffs other than Mandel are directly involved with Mandel's entry because they have invited him, and they expect to participate in meetings with him or expect to be among his auditors. No more is required to establish their standing. Cf. Snyder v. Board of Trustees, supra, 286 F. Supp. at 931-932; Smith v. University of Tennessee, E.D. Tenn. 1969, 300 F. Supp. 777, 780. The special relation of plaintiffs to Mandel's projected visit gives them a specificity of interest in his admission, reinforced by the general public interest in the prevention of any stifling of political utterance, that abundantly satisfies "standing" requirements.
Mandel is invited primarily to participate in university and college events. The essentiality of freedom of debate within the community of universities (Sweezy v. New Hampshire, 1957, 354 U.S. 234, 250, 262-263, 77 S. Ct. 1203, 1 L. Ed. 2d 1311) has been repeatedly recognized and has drawn from the Court very strong expressions of the heightened importance of First Amendment rights in the field of education. Shelton v. Tucker, supra, 364 U.S. at 487, 81 S. Ct. at 251, stated that, "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Keyishian v. Board of Regents, 1967, 385 U.S. 589, 603, 87 S. Ct. 675, 683, 17 L. Ed. 2d 629, characterized the national commitment to academic freedom as a "transcendent value to all of us" and a special concern of the First Amendment "which does not tolerate laws that cast a pall of orthodoxy over the classroom." See also Tinker v. Des Moines Community School District, 1969, 393 U.S. 503, 512, 89 S. Ct. 733, 21 L. Ed. 2d 731; Pickering v. Board of Education, 1968, 391 U.S. 563, 568-569, 572, 574, 88 S. Ct. 1731, 20 L. Ed. 2d 811. In Wieman v. Updegraff, 1952, 344 U.S. 183, 195, 73 S. Ct. 215, 97 L. Ed. 216, Mr. Justice Frankfurter, in a concurring opinion, warned that any inhibition upon the freedom of thought of teachers brought the First Amendment safeguards vividly into operation because unwarranted inhibition of the free spirit of teachers affects not only the teachers directly involved but unmistakably tends to chill that free play of spirit which all teachers ought to practice and to produce caution and timidity in the associations of potential teachers. That Mandel's visit is in general to be limited to the academic community gives particularized enhancement to the values for the self-governing process that are jeopardized by such exclusions as this case presents. A premise of the First Amendment is that free speech and press and peaceable assembly do not merely afford opportunity to teach and advocate political doctrines but by doing so assure that exposure of the vices and inadequacies of political doctrines that suppression, exclusion and silence cannot accomplish.
The prevention of the teaching and advocacy that is not incitement or conspiracy to initiate presently programmed violence is not in any degree a legitimate legislative objective but a forbidden one. It is forbidden, in ultimate analysis, because the public interest -- expressed in the First Amendment -- requires that the citizens as sovereign have access to, evaluate and accept or reject that teaching as well as every other teaching and advocacy.
It may remain true that in certain areas of administering the laws affecting immigration as they affect nonresident aliens not present in this country an all but absolute discretion to exclude can be vested in the executive or found to exist in the executive independently of Congressional action. See United States ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 542-544, 70 S. Ct. 309, 94 L. Ed. 317; United States ex rel. Turner v. Williams, supra, 194 U.S. at 289-291, 24 S. Ct. 719, 48 L. Ed. 979. Here the discretion is limited to the "waiver" aspect of the statute; the executive is given the power to admit temporarily those whom the state declares ineligible. No standards are established to govern the exercise of that discretion, and no procedural provision is made to assure that it is exercised with due process of law. Such an executive discretion to invoke or suspend the operation of the general national power to exclude aliens may exist where the uses of the discretion do not impinge on interests protected by the First Amendment, but that it cannot exist here flows from the nature of the rights involved. In this case the admission of Mandel is but a lever by which the constitutional rights of his prospective citizen audience are to be given effect; they, as the articulately concerned portion of the sovereign people, assert a very high title to support Mandel's admission. Cf. Cobb v. Murrell, 5th Cir. 1967, 386 F.2d 947.
Knauff, resting in large part on the supposedly relevant contrast between "right" and "privilege" (338 U.S. at 544, 70 S. Ct. 309, 94 L. Ed. 317) can have no application where the effect of the executive action is not to deny a "privilege" to a "rightless" alien but to abridge constitutional rights of citizens and curb the exercise within this country of rights of free speech and peaceable assembly. (Cf. Van Alystine, The Demise of the Right-Privilege in Constitutional Law, 1968, 81 Harv. L. Rev. 1435.) The constitutional difference between the advocacy that cannot be suppressed and the incitement to violence that can be curbed is not lost by translating the matter into the immigration context and calling upon the "discretions" possibly exercisable in certain areas in that field. Cf. Harisiades v. Shaughnessy, supra, 343 U.S. at 591-592, 72 S. Ct. 512, 96 L. Ed. 586. The case is not different, when tested as an instance of the exercise of an unlimited executive discretion to exclude, from the cases in which the power to regulate the use of the streets is relied upon. Whether the effect of ordinances regulating use of the streets is an indiscriminate or undiscriminating total exclusion, as in Schneider v. State (Town of Irvington), 1939, 308 U.S. 147, 160-162, 163, 60 S. Ct. 146, 84 L. Ed. 155, or the establishment of a power to exclude except under a standardless licensing procedure, as in Shuttlesworth v. City of Birmingham, supra, 394 U.S. at 150-152, 89 S. Ct. 935, 22 L. Ed. 2d 162, the First Amendment precludes the stifling effect despite the undoubted power to legislate generally for order in the streets. But, ultimately, due process is not an issue since the Government is without any power to act in the area defined by (a)(28) and the presence or absence of procedural due process in the attempted administration of subsection (d)(3) becomes irrelevant.
The views expressed in the thoroughly researched dissent fail to recognize that the First Amendment peremptorily forbids equating the implied power to exclude aliens in the interest of national security and the even conduct of international affairs with a power to abridge the freedoms of speech, press and peaceable assembly. The challenged parts of the Act as here applied do only the latter forbidden thing and do not reflect a genuine exercise of the implied power of alien exclusion. The dissent's argument comes very close to saying that Mandel can be excluded on the ground that he harbors a proscribed sentiment and preaches proscribed theories so long as his doctrines and teaching can be introduced by mail, by live television and through the press; but, surely, it then becomes evident that the attempted justification for Mandel's personal exclusion on the ground of his preachments undercuts itself, for Mandel is under the Act excludable solely because of his identification with his doctrines, which admittedly cannot be excluded. Zemel v. Rusk, 1965, 381 U.S. 1, 85 S. Ct. 1271, 14 L. Ed. 2d 179, as the dissent points out, does not really touch First Amendment issues; it represents a finding that the general prohibition on travel to Cuba was not aimed at abridging First Amendment freedoms but only incidentally inhibited the flow to the United States of intelligence about Cuba; the Court recognized that inhibition "is a factor to be considered in determining whether [Zemel] has been denied due process of law * * *." Zemel does not validate a program of inhibition of interchange of information and ideas, but approves a general limitation on travel to Cuba in spite of the countervailing circumstance that it inhibited access to political information. It is not correct to say that Zemel "sanctioned a virtual ban on informational intercourse with the then sole existing Latin American experiment in Communism"; rather, the Court was reconciled with that undesirable consequence of the Secretary's action because it was otherwise and independently justifiable by the national interest. So much appears abundantly from the care with which the Court distinguished and preserved the authority of Kent v. Dulles, 1958, 357 U.S. 116, 78 S. Ct. 1113, 2 L. Ed. 2d 1204, on which Zemel so heavily relied; the Court in Zemel noted that in Zemel's case "the refusal to validate appellant's passport does not result from any expression or association on his part; appellant is not being forced to choose between membership in an organization and freedom to travel." That is, the Zemel result was sustained only because, unlike Kent, the travel ban was not linked to Zemel's opinions and affiliations.
It follows from what has been said that plaintiffs are entitled to an injunction against the defendants' implementing and enforcing Sections 212 (a)(28) and 212(d)(3)(A) (8 U.S.C. §§ 1182(a)(28) and (d)(3)(A)) so as to deny plaintiff Mandel admission to the United States as a non-immigrant visitor and to a declaratory judgment that Section 212(a)(28) is invalid and Section 212(d)(3)(A) is inoperative so far as they have been invoked to find plaintiff Mandel ineligible for admission under Section 212(a)(28) and to deny him temporary admission under Section 212(d)(3)(A).
Settle order on notice.
Immigration and Nationality Act of 1952, taken from 8 U.S.C. § 1101 et seq.
§ 1101. Definitions.
(a) As used in this chapter --
* * *
(37) The term "totalitarian party" means an organization which advocates the establishment in the United States of a totalitarian dictatorship or totalitarianism. The terms "totalitarian dictatorship" and totalitarianism" mean and refer to systems of government not representative in fact, characterized by (A) the existence of a single political party, organized on a dictatorial basis, with so close an identity between such party and its policies and the governmental policies of the country in which it exists, that the party and the government constitute an indistinguishable unit, and (B) the forcible suppression of opposition to such party.
* * *
(40) The term "world communism" means a revolutionary movement, the purpose of which is to establish eventually a Communist totalitarian dictatorship in any or all the countries of the world through the medium of an internationally coordinated Communist political movement.
* * *
§ 1182. General classes of aliens ineligible to receive visas and excluded from admission; waivers of inadmissibility.
(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
* * *
(9) Aliens who have been convicted of a crime involving moral turpitude (other than a purely political offense), * * *.
(10) Aliens who have been convicted of two or more offenses (other than purely political offenses), * * *.
* * *
(27) Aliens, who the consular officer or the Attorney General knows or has reason to believe seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States;
(28) Aliens who are, or at any time have been, members of any of the following classes:
(A) Aliens who are anarchists;
(B) Aliens who advocate or teach, or who are members of or affiliated with any organization that advocates or teaches, opposition to all organized government;
(C) Aliens who are members of or affiliated with (i) the Communist Party of the United States, (ii) any other totalitarian party of the United States, (iii) the Communist Political Association, (iv) the Communist or any other totalitarian party of any State of the United States, of any foreign state, or of any political or geographical subdivision of any foreign state, (v) any section, subsidiary, branch, affiliate, or subdivision of any such association or party, or (vi) the direct predecessors or successors of any such association or party, regardless of what name such group or organization may have used, may now bear, or may hereafter adopt: Provided, That nothing in this paragraph, or in any other provision of this chapter, shall be construed as declaring that the Communist Party does not advocate the overthrow of the Government of the United States by force, violence or other unconstitutional means;
(D) Aliens not within any of the other provisions of this paragraph who advocate the economic, international, and governmental doctrines of World communism or the establishment in the United States of a totalitarian dictatorship, or who are members of or affiliated with any organization that advocates the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship, either through its own utterances or through any written or printed publications issued or published by or with the permission or consent of or under the authority of such organization or paid for by the funds of, or funds furnished by, such organization;
(E) Aliens not within any of the other provisions of this paragraph, who are members of or affiliated with any organization during the time it is registered or required to be registered under section 786 of Title 50, unless such aliens establish that they did not have knowledge or reason to believe at the time they became members of or affiliated with such an organization (and did not thereafter and prior to the date upon which such organization was so registered or so required to be registered have such knowledge or reason to believe) that such organization was a Communist organization;
[50 U.S.C. § 786 was repealed by Section 5q of Public Law 90-237]
(F) Aliens who advocate or teach or who are members of or affiliated with any organization that advocates or teaches (i) the overthrow by force, violence, or other unconstitutional means of the Government of the United States or of all forms of law; or (ii) the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally) of the Government of the United States or of any other organized government, because of his or their official character; or (iii) the unlawful damage, injury, or destruction of property; or (iv) sabotage;
(G) Aliens who write or publish, or cause to be written or published, or who knowingly circulate, distribute, print, or display, or knowingly cause to be circulated, distributed, printed, published, or displayed, or who knowingly have in their possession for the purpose of circulation, publication, distribution, or display, any written or printed matter, advocating or teaching opposition to all organized government, or advocating or teaching (i) the overthrow by force, violence, or other unconstitutional means of the Government of the United States or of all forms of law; or (ii) the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally) of the Government of the United States or of any other organized government, because of his or their official character, or (iii) the unlawful damage, injury, or destruction of property; or (iv) sabotage; or (v) the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship;
(H) Aliens who are members of or affiliated with any organization that writes, circulates, distributes, prints, publishes, or displays, or causes to be written, circulated, distributed, printed, published, or displayed, or that has in its possession for the purpose of circulation, distribution, publication, issue, or display, any written or printed matter of the character described in subparagraph (G) of this paragraph; * * *.
(29) Aliens with respect to whom the consular officer or the Attorney General knows or has reasonable ground to believe probably would, after entry, (A) engage in activities which would be prohibited by the laws of the United States relating to espionage, sabotage, public disorder, or in other activity subversive to the national security, (B) engage in any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States, by force, violence, or other unconstitutional means, or (C) join, affiliate with, or participate in the activities of any organization which is registered or required to be registered under section 786 of Title 50; * * *.
* * *
(d) (1) * * *
(2) * * *
(3) Except as provided in this subsection, an alien (A) who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under one or more of the paragraphs enumerated in subsection (a) of this section (other than paragraphs (27) and (29)), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa, and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General, or (B) who is inadmissible under one or more of the paragraphs enumerated in subsection (a) of this section (other than paragraphs (27) and 29)), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General.
* * *
(5) The Attorney General may in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.
(6) The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of excludable aliens applying for temporary admission under this subsection. The Attorney General shall make a detailed report to the Congress in any case in which he exercises his authority under paragraph (3) of this subsection on behalf of any alien excludable under paragraphs (9), (10), and (28) of subsection (a) of this section.
* * *
§ 1225. Inspection by Immigration Officers.
* * *
(c) Temporary exclusion; permanent exclusion by Attorney General.
Any alien (including an alien crewman) who may appear to the examining immigration officer or to the special inquiry officer during the examination before either of such officers to be excludable under paragraphs (27), (28), or (29) of section 1182(a) of this title shall be temporarily excluded, and no further inquiry by a special inquiry officer shall be conducted until after the case is reported to the Attorney General together with any such written statement and accompanying information, if any, as the alien or his representative may desire to submit in connection therewith and such an inquiry or further inquiry is directed by the Attorney General. If the Attorney General is satisfied that the alien is excludable under any of such paragraphs on the basis of information of a confidential nature, the disclosure of which the Attorney General, in the exercise of his discretion, and after consultation with the appropriate security agencies of the Government, concludes would be prejudicial to the public interest, safety, or security, he may in his discretion order such alien to be excluded and deported without any inquiry or further inquiry by a special inquiry officer. Nothing in this subsection shall be regarded as requiring an inquiry before a special inquiry officer in the case of an alien crewman.