Statement of
Chief Judge BAZELON,
in which
Circuit Judge J. SKELLY WRIGHT joins:
I would grant the Berrigans the relief they seek. That relief is not an order directing the government to permit them to travel to North Vietnam. Rather, it is an injunction restraining one federal agency — the United States Parole Board —from withholding permission for the trip. The authority — if any — of the Department of State to grant or deny its permission is not at issue in this ease.
The most troublesome problem on these appeals is jurisdictional. By statute, our review is limited to final orders. The denial of a temporary restraining order does not commonly fall into that category. Ilf is well-established, though, that the question of finality is a pragmatic one. Brown Shoe v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962); McSurley v. McClellan, 138 U.S.App.D.C. 187, 426 F.2d 664 (1970). If the effect of denying the temporary restraining order is to preclude the trip altogether, it is, for practical purposes, a final determination and is accordingly ripe for review.
The Berrigans have represented to us that their opportunity to make the trip is fleeting; that they have a single, limited invitation from the North Vietnamese ; that passenger flights to Hanoi are infrequent; and that failure to leave the United States on schedule will cause them to miss essential connections further on. In short, they maintain that any delay in resolving their claim will be tantamount to a denial. Absent refutation, we should accept those representations. On that basis, the case appears to be appropriate for appellate review.
The question on the merits is the Berrigans’ claim that their Constitutional right to travel, Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.*337Ed.2d 992, has been denied. We consider this claim in the awareness that the Berrigans are presently under the legal authority of the Parole Board. The Board’s authority can be exercised, however, only in accordance with the rule of law. That historic check on governmental power is central to our democratic traditions. A fundamental principle of law is that every governmental agency —including the Parole Board — must respect the rights of every citizen.
The Board has offered two explanations for its refusal to permit this particular trip:
1) The Board would be unable to exercise its “supervisory responsibilities looking to rehabilitation” of the two priests during the 10 days they are overseas.
2) It would be improper to permit travel to North Vietnam because the State Department has “informally” informed the Board that the trip would not be in the national interest.
The Board’s first contention is so transparently unrealistic as to cast doubt on its entire presentation in this proceeding. Other than admitting the two brothers to parole, there is no indication that the Board has made any effort toward rehabilitation in regard to either of them. Since he was granted parole, Father Daniel Berrigan has traveled extensively in Europe and the United Kingdom. Never until now has the Board suggested that overseas travel would interfere with its unspecified supervisory activities. During his brief period as a parolee, Father Philip Berrigan’s sole contact with the Board has been his request to come to this court for argument on his motion. Yet the Board claims that the need for rehabilitative supervision during the next ten days is so great as to justify the denial of a Constitutional right. In light of its prior record of inactivity, the Board’s stated rationale cannot even be described as “facially legitimate and bona fide”. Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972).
By implication, then, the Board’s second point must be the real basis for its decision; but for the State Department’s viewpoint, presumably, the Board would permit the trip. The Board concedes that the “impropriety” of this trip is a question within the State Department’s “foreign relations competence”. The Board also concedes that numerous Americans from all walks of life — including other priests, other pacifists, and other convicted felons — have traveled to Hanoi without objection from the State Department. It may be that the Berrigans’ visit will be different. But that kind of delicate diplomatic determination is properly the province of the Secretary of State.
Accordingly, the Parole Board should be enjoined from refusing the Berrigans’ request for permission to travel to North Vietnam based on the reasons asserted and relied upon by the Board. Cf. Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320 (1939). The matter appears to be one for the consideration of the Secretary of State in light of the applicable law and regulations.