Petition — Haig v. Agee

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In the Supreme Court of the Unitea States

OCTOBER TERM, 1979

EDMUND S. MUSKIE, SECRETARY OF STATE,

PETITIONER

Vv.

PHILIP AGEE

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

WADE H. MCCREE, JR.

Solicitor General

ALICE DANIEL

Assistant Attorney General

KENNETH S. GELLER

Deputy Solicitor General

ANDREW J. LEVANDER

Assistant to the Solicitor General

LEONARD SCHAITMAN

MICHAEL F.. HERTZ

Attorneys

Department of Justice

Washington, D.C. 205380

(2U2) 633-2217

In the Supreme Court of the United States

OCTOBER TERM, 1979

No.

EDMUND S. MUSKIE, SECRETARY OF STATE,

PETITIONER

VU.

PHILIP AGEE

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

The Solicitor General, on behalf of the Secretary of

State, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the District of Columbia Circuit in this case.

QUESTION PRESENTED

Whether the President, acting through the Secre-

tary of State, has authority to revoke the passport of

an American citizen whose international travel ac-

tivities have caused and will continue to cause serious

damage to the national security and foreign policy of

the United States.

INDEX

ee had da eieea b0'00.0.4 1

es Gi va sc a's s wia'e sc 06 bos 6b. eve 1

Statute and regulations involved .............. 1

at ecb eneeeucs 2

Reasons for granting the petition.............. 9

ey a) PAS OL Ae 21

ee CEN dS MSs say bo 0 6 606 eine oe la

Rasika ud db apc hes UG si once vol 92a

ee ae Chins we'a pba. 0 o-via.s of wietprt 100a

MEW a2 Goi a's wave ¢ hoe 8 oie tbe é 102a

Rake eas piewar'voeceeces 105a

ME RETR A TR UT 113a

ao os some nae papery ores ee 119a

EES ESS AD PO 125a

CITATIONS

Cases: ‘

Andrus v. Allard, No. 78-740 (Nov. 27,

as te oa ok sap yA Gs 454 17

Banco Nacional de Cuba v. Sabbatino, 376

Bee GS ois Shee A810 VETERE AG) ove coos 13

Board of Governors v. First Lincolnwood

Corp. C60 U.B2280 5s. se i yp 17

Brown v. Glines, No. 78-1006 (Jan. 21,

AG ObMET A Libis CLs Seine die Sei alec’ 17

Califano v. Aznavorian, 489 U.S. 170..... 17

Califano v. Torres, 485 U.S. 1............ 17

Chicago & Southern Air Lines, Inc. v. Wa-

terman Steamship Corp., 333 U.S. 108 .. 14

Duparquet Co. v. Evans, 297 U.S. 216 .... 15

s _-s

ITI

Cases—Continued: Page

Goldwater v. Carter, No. 79-856 (Dec. 13,

BOVE) Fe vdodvsvonsas caBIG MO! 14

Gooding v. United States, 416 U.S. 480.... 15

Harisiades v. Shaughnessey, 342 U.S. 580 . 13

Kent v. Dulles, 357 U.S. 116 ... 7, 10, 12, 19, 20

Lorillard v. Pons, 484 U.S. 575......... ; 19

| Mackenzie v. Hare, 239 U.S. 299 ......... 13

Owen v. City of Independence, Missouri,

No. 78-1779 (Apr. 16, 1980) ............ 15

Panama R.R. v. Johnson, 264 U.S. 375... 15

Parker v. Levy, 417 U.S. 788............. 17

Perkins v. Elg, 8307 U.S. 825 ........0005% 17

St. Paul Fire & Marine Ins. Co. v. Barry,

UP RB NOEL 6 ch whcb Valens 4d ca bisaiecaeki'es 15

Saxbe v. Bustos, 419 U.S. 65............. 16

Seatrain Shipbuilding Corp. v. Shell Oil

Co., No. 78-1651 (Feb. 20, 1980) ........ 19

Snepp v. United States, No. 78-1871

Geb. 10; 1800): cere 3, 18, 17, 18, 20

United States v. Curtiss-Wright Export

Corp., 200:U.8. 304... 6b ih 13, 14

4 United States v. Laub, 885 U.S. 475 ...... 13

United States v. O’Brien, 391 U.S. 367 .... 17

United States v. Powell, 423 U.S. 87...... 17

United States v. Rutherford, 442 U.S. 544 . 17

Urtetiqui v. D’Arcy, 34 U.S. (9 Pet.) 692 .. 17

Zemel v. Rusk, 381 U.S.1.. 7, 12, 14, 18, 19, 20

Constitution, statutes, proclamation,

and regulations:

United States Constitution:

PIM AMOMGMIONE oo. dcie esc bbls Gale's 6, 17

Constitution, statutes, proclamation, Page

and regulations—Continued:

Fe PION 5 o's b.a's 0/5 diab oop H0'o oe 6

Act of May 22, 1918, ch. 81, Section 2, 40

Ps Ras cs eG sas socal volwes etnies 14, 15

Act of June 21, 1941, ch. 210, 55 Stat. 252 .. 15

Immigration and Nationality Act, ch. 477,

Section 215(a), 66 Stat. 190 ............. 16

Passport Act of 1926, 22 U.S.C. (§ Supp. ID)

9 TB a, EP Sa 1 a A, a, 00, 14, 30

Pub. L. No. 95-426:

Section 124, 92 Stat. 971 ..........06. 16

Section 707(b), 92 Stat. 998 ........... 16

DU eale MIs Gwccews ch Dean avs vig be 18

Be SY wh odd von dle hiv ce peekes wea 13

REE ER, oa GOK ped wk bP RN eSR OKA ORs 13

Pres. Proc. of Aug. 8, 1918, Section 1, 40

te EE PO ead as Ne v's c kos o cds woos 12

ee Is as bi o.nns Rhine Bee ye 12, 20

Se TE ho dW vw ico basen hee be veka 2

22 CP .R. 61. TONE) <. ocak cence 2,.5, 7,11, 12

Be Rts Re: vi ne ¢ te a a veaesas 2, 5, 12, 23

22 C.F.R. 51.80 through 51.105 ........... 6

Miscellaneous:

Denial of Passports to Persons Knowingly

Engaged in Activities Intended to Further

the International Communist Movement:

Hearings on H.R. 18760 Before House

Comm. on Foreign Affairs, 85th Cong.,

ee Cis sy Kees chk coe hates 19

Exec. Order No. 11,295, 31 Fed. Reg. 10603

(1966), reprinted in 22 U.S.C.

ee ND Bi. c:00 Ss wk Senses aan Cee ets 11

| Miscellaneous—continued: Page

6 Fed. Reg. 6069, 6349 (1941)............. 12

7 Fed. Reg. 2590-2591, 3708 (1942)........ 12

17 Fed. Reg. 8018 (1962) .... 0 cece cccese 12

21 Fed. Reg. S06. (966) ...0. . oeiie. 12

33 Fed. Reg. 5681 (1968) .............005- 12

3 G. Hackworth, Digest of International

Eee COO sk ahd ald 0 oS o Onthad chee ks 12

H. R. Rep. No. 485, 65th Cong., 2d Sess.

FOS Aca e Oca Ce hee olawatcckbnnas 14

H. R. Rep. No. 2684, 85th Cong., 2d Sess.

CRONE kota che tn cca teen nese eee e eens 19

3 J. Moore, International Law Digest

CEPE < vakoceavadnnecieteures beneenee 12

Passport Legislation: Hearings on S. 2770,

S. 3998, S. 4110 & S. 4187 Before Senate

Comm. on Foreign Relations, 85th Cong.,

Be Es CED kes oe eens tb whasieiawes 19

S. Rep. No. 444, 77th Cong., 1st Sess.

COIIEE hh uke ae Ou ces eee sees ees 15, 16

S. Rep. No. 95-842, 95th Cong., 2d Sess.

CE Gwuk tal ist paiivcadsbckuhtaewneen 16

, U.S. Passports, Denial and Review: Hear-

ings on H.R. 9991 Before Subcomm. No. 1

of the House Comm. on the Judiciary,

84th Cong., 2d Sess. (1959) ............. 19

The Right to Travel: Hearing Before the

Subcomm. on Constitutional Rights of the

Senate Comm. on the Judiciary, 85th

Cong., Ist Sess., Pt. 2 (1957) ........... 12, 19

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-9la) is not yet reported. The opinion of the district

court (App. B, infra, 92a-99a) is reported at 483 F.

Supp. 729. The administrative decision revoking re-

spondent’s passport (App. G, infra, 119a-124a) is not

reported.

JURISDICTION

The judgment of the court of appeals (App. C, infra,

100a-101a) was entered on June 27, 1980. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATUTE AND REGULATIONS INVOLVED

22 U.S.C. (& Supp. ID) 211a provides:

The Secretary of State may grant and issue

passports, and cause passports to be granted, is-

sued, and verifiec in foreign countries by diploma-

tic representatives of the United States, and by

such consul generals, consuls, or vice consuls

when in charge, as the Secretary of State may

designate, and by the chief or other executive offi-

cer of the insular possessions of the United States,

, under such rules as the President shall designate

| and prescribe for and on behalf of the United

States, and no other person shall grant, issue, or

verify such passports. Unless authorized by law, a

passport may not be designated as restricted for

travel to or for use in any country other than a

country with which the United States is at war,

where armed hostilities are in progress, or where

there is imminent danger to the public health or

the physical safety of United States travellers.

rE eee ees re 5 es pee

22 C.F.R. 51.70(b) provides:

A passport may be refused in any case in which:

ok * * a *

(4) The Secretary determines that the na-

tional’s activities abroad are causing or are

likely to cause serious damage to the national

security or the foreign policy of the United

States * * *

22 C.F.R. 51.71 provides:

A passport may be revoked, restricted or lim-

ited where:

(a) The national would not be entitled to is-

suance of a new passport under § 51.70 * * *

STATEMENT

1. Between 1957 and 1968, respondent, an American

citizen, held a position of trust with the Central Intel-

ligence Agency (App. A, infra, 2a, 18a; App. E, infra,

105a-106a; App. F,, infra, 113a-114a).1 Upon entering

on duty with the CIA, respondent pledged not to dis-

cuss or publish, without prior approval, “any informa-

tion or material relating to the Agency, its activities or

intelligence activities generally, either during or after

the term of [his] employment * * *” (App. A, infra,

1 Respondent waived his right to an administrative hearing in

this case and, in light of respondent’s express concession that

his international travel activities have caused and probably will

continue to cause serious damage to the nation’s security and

foreign policy (see page 6, infra), no evidentiary hearing was

held in the district court. The statement of facts is thus derived

from respondent’s concessions in the district court and the es-

sentially undisputed affidavits (but see note 2, infra) submitted

by the government in the district court in support of its motion

for summary judgment (App. D, infra) and its application for a

stay pending appeal (Apps. E and F, infra).

18a; App. E, infra, 106a). See generally Snepp v.

United States, No. 78-1871 (Feb. 19, 1980). During his

tenure with the CIA, respondent received training in

CIA clandestine operations, including the

methodologies employed to provide cover for CIA em-

ployees and sources. He also served in undercover

CIA assignments abroad and became personally ac-

quainted with numerous other undercover CIA em-

ployees, many of whom are still active and whose as-

sociation with the CIA has never been officially ac-

knowledged (App. E, infra, 105a-106a; App. F, infra,

113a-114a).

In 1974, respondent publicly announced a campaign

to disrupt and destroy the CIA. Since that time, re-

spondent, who currently resides in the Federal Re-

public of Germany, has traveled abroad extensively,

purporting to identify.individuals within specific coun-

tries as CIA agents, employees, or sources. As re-

spondent acknowledges (App. A, infra, 4a, 17a-20a,

29a; App. B, infra, 94a; App. E, infra, 107a-112a), his

activities and allegations have endangered the safety

of many employees of the United States, whether or

not they are connected to the CIA, and have caused

substantial damage to the foreign policy and national

security of the United States. In particular, re-

spondent’s allegations about CIA operations are de-

signed to force the expulsion of American employees

from foreign countries and constitute a serious threat

to the lives and safety of such employees (App. A,

infra, 19a-20a, 24a; App. D, infra, 102a-108a; App. E,

infra, 107a, 1lla-112a; App. F, infra, 118a, 118a).

{International travel has been and continues to be es-

sential to respondent’s avowed campaign against the

CIA. His ability to travel abroad greatly enhances his

potential to disrupt and damage American foreign pol-

icy and national security interests. Respondent is thus

able to collect information that he needs to expose al-

leged CIA operations and employees; to find, recruit,

and train individuals willing to assist in carrying out

his program in various foreign countries; to make per-

sonal contact with extremist groups; and to receive the

type of intense local media coverage that he uses to

incite hostile foreign groups to take action against

American interests and personnel (App. E, infra,

107a-112a; App. F, infra, 118a-118a). See also note 6,

infra.

Recent events have underscored the potential, if not

actual, consequences of respondent’s international

travel activities. Citizens of various foreign countries,

particularly Islamic nations, have demonstrated an in-

creasing sensitivity to allegations that the United

States has conducted or is conducting intelligence op-

erations within their borders (App. D, infra, 102a).

Indeed, suspicions of CIA activity within Iran may

have contributed to the anti-American feelings that led

to the forcible takeover of the United States Embassy

in Tehran in November 1979 and the continued impris-

onment of more than 50 hostages by Iranian militants

(App. A, infra, 2la-23a; App. D, infra, 102a). Shortly

after the embassy takeover, it was reported that re-

spondent had been invited to travel to Iran to partici-

pate in a tribunal concerning the American hostages

(id. at 103a; App. F, infra, 116a-117a). And re-

spondent himself has suggested that the Iranian milit-

ants exchange the hostages for records of CIA intelli-

gence operations in Iran, and he has offered to assist

the militants in analyzing any CIA documents that

come into their possession (App. F,, infra, 117a).?

Based on respondent’s activities and in light of

then-recent events in Iran, Pakistan, and Libya, the

Secretary of State revoked respondent’s passport on

December 23, 1979 (App. A, infra, 2a, 28a; App. E,

infra, 112a; App. G, infra, 119a-124a). The letter re-

voking the passport stated that the Secretary’s action

was authorized by 22 C.F.R. 51.70(b)(4) and 51.71,

which provide that the Secretary of State may revoke

a citizen’s passport if his “activities abroad are causing

or are likely to cause serious damage to the national

security or the foreign policy of the United States.”

The letter to respondent further explained (App. G,

infra, 120a):

Since the early 1970’s it has been your stated in-

tention to conduct a continuous campaign to dis-

rupt the intelligence operations of the United

States. In carrying out that campaign you have

travelled in various countries (including, among

others, Mexico, the United Kingdom, Denmark,

2With the one clarification described below, the affidavits

filed by respondent in the district court and the court of appeals

do not deny the facts stated in the affidavits submitted by the

government in the courts below. Specifically, respondent does

not deny that he is engaged in a campaign to expose clandestine

CIA activities and undercover personnel and that his ability to

travel internationally facilitates this campaign in the various

ways detailed above. Following revocation of his passport, re-

spondent did state that he has no present intent to go to Iran

while American hostages are still being held in that country.

But respondent gave no assurance as to his possible future ac-

tions or intentions. Nor has respondent denied that he

suggested that the militants exchange the hostages for CIA

documents about Iran and that he offered to assist the militants

in analyzing such documents.

Jamaica, Cuba, and Germany), and your activities

in those countries have caused serious damage to

the national security and foreign policy of the

United States. Your stated intention to continue

such activities threatens additional damage of the

same kind.

The State Department also informed respondent of his

right to a hearing under 22 C.F.R. 51.80 through

51.105 and offered to hold an expedited hearing in

West Germany (App. G, infra, 120a, 123a-124a).

2. Respondent waived his right to an administrative

hearing and instead filed this suit in the United States

District Court for the District of Columbia (App. A,

infra, 4a; App. B, infra, 98a). Respondent attacked

the revocation of his passport on both statutory and

constitutional grounds*® and sought declaratory and

injunctive relief from the Secretary’s action. Both

sides moved for summary judgment. For purposes of

the summary judgment motions, respondent admitted

that the allegations contained in the letter of revoca-

tion are true. That is, respondent expressly conceded

that his “activities * * * have caused serious damage

to the national security and foreign policy of the

United States” and that his “stated intention to con-

tinue such activities threatens additional damage of

the same kind” (App. A, infra, 4a; App. B, infra, 94a;

App. G, infra, 120a).

’In particular, respondent claimed that the Secretary’s regu-

lations were not authorized by Congress, that the Secretary

could not revoke his passport without a prior hearing, and that

the revocation violated his First and Fifth Amendment rights

(App. B, infra, 98a-94a).

On January 28, 1980, the district court declared 22

C.F.R. 51.70(b)(4) invalid and ordered the Secretary

to restore respondent’s passport (App. B, infra, 99a).

The court observed that the right to travel interna-

tionally is constitutionally protected and that the Sec-

retary may therefore revoke the passport of an Ameri-

can citizen only if “he acts pursuant to an explicit [con-

gressional] delegation or * * * he has followed ‘suffi-

ciently substantial and consistent’ administrative prac-

tice to warrant the implied approval of Congress”

(App. B, infra, 95a, quoting Zemel v. Rusk, 381 U.S.

1, 12 (1965)). The court concluded that the Secretary

failed to establish such a delegation or a settled ad-

ministrative practice in the area of foreign affairs or

national security, and it accordingly declared that the

regulation had been promulgated without statutory

authority (App. B, infra, 95a-99a).4

3. On appeal, a divided panel of the court of appeals

affirmed (App. A, infra, la-91a). After reviewing this

Court’s decisions in Kent v. Dulles, 357 U.S. 116

(1958), and Zemel v. Rusk, supra, the court of ap-

peals agreed with the district court that the Secre-

tary’s regulations are valid only if “Congress has au-

thorized 22 C.F.R. § 51.70(b)(4) either by an express

delegation or by a ‘sufficiently substantial and consist-

ent’ administrative practice to warrant finding the im-

plied approval of Congress” (App. A, infra, lla). The

court of appeals held that the Passport Act of 1926, 22

U.S.C. 211a, does not explicitly authorize the revoca-

tion of a passport on national security or foreign policy

“In view of this disposition, the district court did not address

respondent’s constitutional claims (App. B, infra, 98a—99a).

grounds (App. A, infra, 1la-13a). The court also con-

cluded that the Executive’s past administrative prac-

tice of denying and revoking passports to protect this

country’s national security and foreign policy interests

was too insubstantial to “demonstrat[e] implied con-

gressional authorization for the challenged regulation”

(id. at 14a).5 The court further observed that the

Executive has authority to revoke respondent’s

passport if he were charged with a crime, but that no

such formal allegation had been made (id. at 16a). The

court therefore held the Secretary’s regulations in-

valid, noting that “[wJe are bound by the law as we

find it” (ibid. ).

Judge MacKinnon dissented (App. A, infra, 17a-

9la), asserting that “[n]o United States Congress

would ever intend to require a President to issue a

passport to one with [respondent’s] record and inten-

tions” (id. at 17a). In a lengthy opinion, Judge Mac-

Kinnon traced the history of the Secretary’s statutory

authority and administrative practice regarding the

denial and revocation of passports on national security

and foreign policy grounds (id. at 30a-54a, 64a-68a).

Judge MacKinnon concluded that, since at least 1856,

the Secretary of State, in peacetime as well as war,

had repeatedly denied and revoked passports on

foreign policy and national security grounds and that

Congress was fully aware of this consistent adminis-

trative practice (id. at 43a-52a). This historical record,

5The court explained that the Executive’s authority “to re-

strict or condition the issuance of passports during time of war

or national emergency [was] inapposite and unpersuasive on the

issue of implicit authority to invoke national security or foreign

policy considerations during peacetime” (App. A, infra, 15a).

in Judge MacKinnon’s view, clearly constituted a

“ ‘sufficiently substantial and consistent administrative

practice to warrant the implied approval of Congress.’

Zemel v. Rusk, 381 U.S. at 12” (App. A, infra, 52a).

In addition, the dissenting opinion pointed out that

in Zemel v. Rusk, supra, the Court upheld a blanket

denial of passports to an entire geographical area on

national security and foreign policy grounds and that

[t]he greater power to deny passports to all citi-

zens for a limited area on such grounds neeessarily

includes the lesser power to deny a passport to an

individual citizen on the same grounds where it is

conceded that his worldwide activities have

caused serious damage to our national security

and foreign policy, and that his stated intention to

continue such activities was “likely to cause” addi-

tional damage of the same character.

App. A, infra, 34a-35a (emphasis in original). Finally,

Judge MacKinnon distinguished Kent v. Dulles,

supra, on which the majority had principally relied, on

the ground that Kent concerned the Secretary’s deci-

sion to deny passports merely because of the appli-

cants’ beliefs and ideology. Here, by contrast, re-

spondent’s activities abroad have caused and will con-

tinue to cause serious damage to the national security

and foreign policy of the United States (App. A, infra,

56a-57a) and involve arguably illegal conduct (id. at

56a-63a, 72a-91a).

REASONS FOR GRANTING THE PETITION

This case presents the important question whether

the Executive may revoke a citizen’s passport to pro-

tect the national security and foreign policy of the

United States. Notwithstanding respondent’s express

concession that his international travel activities are

causing and are likely to continue to cause serious

damage to the national security and foreign policy of

the United States, the court of appeals has concluded

that the Passport Act of 1926, 22 U.S.C. 21la, does

not authorize the President, acting through the Secre-

tary of State, to revoke respondent’s passport. That

cramped construction of the sweeping language of the

Passport Act disregards the President’s broad powers

and responsibilities in the area of national security and

foreign affairs, ignores congressional intent as evi-

denced by several travel control statutes, and fails to

accord proper deference to the Secretary’s longstand-

ing administrative practice of denying or revoking

passports on national security and foreign policy

grounds. We submit that it is inconceivable that Con-

gress intended to deprive the Executive of the au-

thority to revoke the passport of a person, such as re-

spondent, whose international travels have caused and

will continue to cause serious damage to the vital

interests of the United States.

Contrary to the view of the court of appeals, this

Court’s decision in Kent v. Dulles, 357 U.S. 116

(1958), does not dictate that respondent be allowed to

retain his passport. That decision did not address the

right of an American citizen to compel issuance of a

passport for th.e purpose of engaging in travel de-

signed to cause substantial harm to the national secu-

rity. Moreovei:, although the decision of the court

below does not conflict with the decision of any other

court of appeals, no conflict among the circuits is likely

ever to arise. Henceforth, any person seeking to chal-

lenge the revocation or denial of a passport pursuant

to 22 C.F.R. 51.70(b)(4) will file suit in the District of

Columbia. Finally, although the Executive has judi-

ciously exercised its authority in this area in the past,

the inability to deny and revoke passports on national

security or foreign policy grounds will significantly

impair discharge of its duties in the volatile interna-

tional arena.* Accordingly, review by this Court is

warranted.

1. The Passport Act of 1926, 22 U.S.C. 211a, pro-

vides that the “Secretary of State may grant and issue

passports * * * under such rules as the President shall

designate and prescribe for and on behalf of the United

States * * *.”7 Pursuant to this authority, the Secre-

tary of State has promulgated regulations authorizing

the denial and revocation of passports on national se-

curity and foreign policy grounds. 22 C.F.R.

51.70(b)(4) states that a passport will not be issued to

*As noted above (see pages 3-6, supra), respondent’s travel

_ activities imperil government personnel abroad and interfere

with this nation’s relationships with foreign countries. Indeed,

on July 2, 1980, subsequent to the court of appeals’ decision in

this case, Louis Wolf, co-author with respondent of Dirty Work:

The CIA in Europe (1978), held a press conference in Kingston,

Jamaica, and named 15 persons as CIA agents in that country.

The names and home addresses of these individuals were there-

after published in the local media. Within one week of Wolf's

publicized announcement, two of the homes of the named indi-

viduals were subjected to violent, armed attacks (App. H,

infra, 125a-127a) (affidavit submitted to court of appeals in

support of stay pending review on certiorari).

7™By Exec. Order No. 11,295, 31 Fed. Reg. 10603 (1966), re-

printed in 22 U.S.C. 21la note, the President has delegated to

the Secretary of State the authority to designate and prescribe

rules governing passports.

an applicant if “[t]he Secretary determines that the na-

tional’s activities abroad are causing or are likely to

cause serious damage to the national security or the

foreign policy of the United States.”® 22 C.F.R. 51.71,

in turn, authorizes the Secretary to revoke a passport

in any circumstance in which the national would not be

entitled to issuance of a new passport.®

Nothing in the unrestricted language of the Passport

Act suggests that the Secretary is prohibited from re-

voking or denying a passport on national security or

foreign policy grounds. As the official charged with

enforcing that statute, the Secretary’s determination

that Congress intended to grant such authority is enti-

tled to subscantial deference. Zemel v. Rusk, 381

U.S. 1, 11 (1965). Indeed, judicial deference is par-

ticularly appropriate here because the statute impli-

cates “the conduct of foreign relations * * * [which is]

so exclusively entrusted to the political branches of

government as to be largely immune from judicial in-

8The current version of 22 C.F.R. 51.70(b)(4) was promul-

gated in 1968. 33 Fed. Reg. 5681 (1968). Since 1861, the Execu-

tive has from time to time issued similar directives and has in-

voked this authority to deny passports. See, e.g., 3 J. Moore,

International Law Digest 902, 919-923 (1906); 3 G. Hackworth,

Digest of International Law 498-499 (1942); Pres. Proc. of

Aug. 8, 1918, Section 1, 40 Stat. 1831; 6 Fed. Reg. 6069, 6349

(1941); 7 Fed. Reg. 2590-2591, 3708 (1942); 17 Fed. Reg. 8013

(1952); 21 Fed. Reg. 336 (1956); The Right to Travel: Hearing

Before the Subcomm. on Constitutional Rights of the Senate

Comm. on the Judiciary, 85th Cong., 1st Sess., Pt. 2, 59-60,

66-68, 75, 101, 164-165, 180-181, 248-249, 266, 343-350

(1957). See also App. A, infra, 48a-—52a.

®Under 22 C.F.R. 51.70, the Secretary may also deny

passports to fugitives, parole violators, incompetent persons,

and individuals who have failed to pay repatriation loans. See

also Kent v. Dulles, supra, 357 U.S. at 127.

quiry or interference.” Harisiades v. Shaughnessy,

342 U.S. 580, 589 (1952).

The passport itself is an instrument of foreign policy

(United States v. Laub, 385 U.S. 475 (1967)),!° and

the Executive has broad powers and responsibilities

under Article II of the Constitution in the fields of

foreign affairs and national security. See, e.g., United

States v. Curtiss-Wright Export Corp., 299 U.S. 304,

320 (1936); Snepp v. United States, supra, slip op.

3 n.3, 5 n.7.11 Where, as here, the Executive acts pur-

suant to both a legislative grant of broad authority

over foreign affairs and its own inherent authority in

this area, the courts “should hesitate long before lim-

iting or embarrassing such powers.” Mackenzie v.

Hare, 239 U.S. 299, 311 (1915). See, e.g., Banco Na-

cional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964);

1°This Court observed in Laub (885 U.S. at 481) that an

American passport “in effect request(s] foreign powers to allow

the bearer to enter and to pass freely and safely [and] recogniz-

[es] the right of the bearer to the protection and good offices of

American diplomatic and consular officers.” The holding of the

court below thus requires the United States to extend its aid

and to invoke the aid of other countries in facilitating the inter-

national travels of a person whose activities abroad are essential

to his campaign to discredit the CIA, an agency “thought * * *

to be essential to the security of the United States and—in a

sense—the free world.” Snepp v. United States, No. 78-1871

(Feb. 19, 1980), slip op. 5 n.7.

11JTn particular, we note that the Executive has statutory au-

thority, as well as an inherent responsibility, “to obtain or effec-

tuate the release” of “any citizen of the United States * * * un-

justly deprived of his liberty by or under the authority of any

foreign government” (22 U.S.C. 1782) and to “protec(t] intelli-

gence sources and methods from unauthorized disclosure” (50

U.S.C. 403(d)(3)).

Chicago & Southern Air Lines, Inc. v. Waterman

Steamship Corp., 333 U.S. 103, 109-112 (1948).

2. The history of passport control legislation

strongly supports the conclusion that the Passport Act

of 1926 authorizes the Executive to revoke the

passport of a citizen whose international travel ac-

tivities are causing serious damage to the national se-

curity and foreign policy of the United States. In 1918,

Congress declared that in time of war it was “unlawful

for any citizen of the United States to depart from or

enter or attempt to depart from or enter the United

States unless he bears a valid passport.” Act of

May 22, 1918, ch. 81, Section 2, 40 Stat. 559. The

legislative history accompanying this passport control

measure clearly reflects Congress’ understanding that

the President could deny passports to “renegade

Americans” who might transfer “important military

information” to the enemy or to citizens who had al-

ready assisted the enemy but “[t]he known facts in

[whose] case [were] not sufficient to warrant the in-

stitution of a criminal prosecution * * *.” H.R. Rep.

No. 485, 65th Cong., 2d Sess. 2-3 (1918). Indeed, the

fundamental purpose of the 1918 Act, which did not

itself grant authority or specify standards for passport

denial, was to allow the Executive to refuse passports

to persons whose travel abroad would prejudice the

national security. Without this power over the denial

12Tn the volatile and sensitive areas of foreign affairs and na-

tional security, Congress “must of necessity paint with a brush

broader than that it customarily wields in domestic areas.”

Zemel v. Rusk, supra, 381 U.S. at 17. See Goldwater v. Car-

ter, No. 79-856 (Dec. 13, 1979), slip op. 4 n.1 (Powell, J., con-

curring); United States v. Curtiss-Wright Export Corp., supra,

299 U.S. at 315-322.

and revocation of passports, the Executive would have

been wholly unable to effectuate the design of the 1918

legislation to protect “the public safety.” 40 Stat. 559.

In the absence of clear evidence to the contrary, it is

unreasonable to assume that eight years later, in

codifying the Executive’s broad authority over

passports, Congress intended to withdraw from the

Executive the ability to protect the nation’s security

and foreign policy through exercise of the passport

power. See, e.g., Owen v. City of Independence,

Missouri, No. 78-1779 (Apr. 16, 1980), slip op. 14;

Gooding v. United States, 416 U.S. 430, 457-458

(1974); Panama R.R. v. Johnson, 264 U.S. 375, 384

(1924). As the Court remarked in St. Paul Fire &

Marine Ins. Co. v. Barry, 488 U.S. 531, 545-546

(1978), quoting Duparquet Co. v. Evans, 297 U.S.

216, 221 (1936), “a statute come[s] ‘freighted with the

meaning imparted to [it] by the mischief to be re-

medied and by contemporaneous discussion. In such

conditions history is a teacher that is not to be ig-

nored.’ ”

Moreover, passport control measures enacted since

1926 demonstrate the same congressional understand-

ing. In 1941, for example, Congress concluded that the

outbreak of World War II required “legislation pro-

viding for the centralization of control over the entry

into and departure from the United States of persons

of all classes.” S. Rep. No. 444, 77th Cong., Ist Sess. 2

(1941). In order to achieve centralized control over

travel by American nationals, Congress simply pro-

hibited such travel without a passport, thereby relying

on the Executive to implement the legislation. See Act

of June 21, 1941, ch. 210, 55 Stat. 252. Because the

explicit purpose of the 1941 statute was to control in-

ternational travel in order to promote “the national

defense” (S. Rep'444, supra, at 2), Congress ob-

viously assumed that the Executive’s discretionary au-

thority under the Passport Act includes the power to

deny or revoke passports for reasons of national de-

fense.

The same conclusion follows from the most recent

legislation regulating international travel by American

citizens. Although previous travel control statutes had

been applicable only in times of war or equivalent na-

tional emergencies,!* in 1978 Congress decided to re-

quire passports for international travel at all times.

Pub. L. No. 95-426, Section 707(b), 92 Stat. 998. The

legislative history of this provision clearly indicates

that Congress intended the Executive “to control the

departure of U.S. citizens to foreign countries when

such travel is inconsistent with a greater government

interest” (S. Rep. No. 95-842, 95th Cong., 2d Sess. 14

(1978)), thus demonstrating once more Congress’ as-

sumption that a citizen could be denied a passport on

national security or foreign policy grounds. See App.

A, infra, 48a-44a. 14

13See also Immigration and Nationality Act, ch. 477, Section

215(a), 66 Stat. 190 (1952 amendment to the travel control pro-

vision).

14The legislative history accompanying the 1978 enactment is

particularly relevant, because Congress also reconsidered and

amended the Passport Act itself at that time. See Pub. L. No.

95-426, Section 124, 92 Stat. 971, codified at 22 U.S.C.

(Supp. II) 21la. Although Congress had been informed of the

Secretary’s interpretation of his powers under that Act (see

note 16, infra), Congress nonetheless “revisited the Act and left

3. This Court has recognized that the Executive is

vested with broad statutory discretion in the denial

and revocation of passports. See Zemel v. Rusk,

supra; Perkins v. Elg, 307 U.S. 325, 350 (1939); Ur-

tetiqui v. D’Arcy, 34 U.S. (9 Pet.) 692, 699 (1835). In

Zemel, the Court concluded that the Passport Act au-

thorized the Secretary to refuse validation of all

passports for travel to Cuba as a means of protecting

the country’s foreign policy and national security

interests.!* The Court stated that the Act’s “language

is surely broad enough to authorize area restrictions,

the [Secretary’s] practice untouched.” Sarbe v. Bustos, 419

U.S. 65, 74 (1974). In these circumstances, the courts must pre-

sume that “the legislative intent has been correctly discerned.”

United States v. Rutherford, 442 U.S. 544, 554 n.10 (1979). Ac-

cord, Andrus v. Allard, No. 78-740 (Nov. 27, 1979), slip op. 6;

Board of Governors v. First Lincolnwood Corp., 489 U.S. 234,

248 (1978).

The Court also held that the Secretary’s exercise of discre-

tion was constitutional. 381 U.S. at 13-18. Neither court below

addressed respondent’s constitutional claims, which are, in any

event, insubstantial. Respondent’s concession that his activity

falls within the terms of the regulation vitiates his claim that

the regulation is overbroad or vague. See, e.g., Parker v. Levy,

417 U.S. 733, 755-756, 759-760 (1974); United States v. Pow-

ell, 423 U.S. 87, 92-93 (1975). Similarly, the challenged regula-

tion does not abridge respondent’s freedom of speech. Consist-

ent with the First Amendment, the government may regulate

conduct that is seriously damaging to the national security and

foreign policy interests of the United States—including the

government’s compelling interest in preventing disclosures ihat

imperil our foreign intelligence service. See, e.g., Snepp v.

United States, supra, slip op. 3 n.3; Brown v. Glines, No. 78-

1006 (Jan. 21, 1980), slip op. 5-10; United States v. O’Brien,

391 U.S. 367, 377 (1968); Zemel v. Rusk, supra, 381 U.S. at

13-18. For similar reasons, the regulation does not violate re-

spondent’s right to international travel. As the Court remarked

in Califano v. Aznavorian, 439 U.S. 170, 176-177 (1978), “the

‘right’ of international travel [is] no more than an aspect of the

and there is no legislative history indicating an intent

to exclude such restrictions from the grant of author-

ity.” 381 U.S. at 8. The Court further observed that

the Secretary’s construction of the Act was strongly

reinforced by the State Department’s repeated imposi-

tion of area restrictions both before and after the

enactment of the Passport Act. Jd. at 8-11. Such an

administrative practice, the Court suggested, was

“sufficiently substantial and consistent to warrant the

conclusion that Congress had implicitly approved it.”

Id. at 12.

Here, as in Zemel, the “language [of the Passport

Act] is surely broad enough to authorize” the revoca-

tion of respondent’s passport (881 U.S. at 8).

Moreover, like the restrictions on travel to Cuba, the

Secretary’s imposition of travel restrictions on re-

spondent is predicated on “the weightiest consid-

erations of national security” and “foreign policy.” 381

U.S. at 16, 13. Respondent has conceded that his in-

ternational travels are intended to harm and are in fact

harming the vital interests of the United States. It is

also apparent that the Secretary’s actions in this case

are justified by the government’s “compelling interest

in protecting * * * the secrecy of information impor-

tant to our national security.” Snepp v. United States,

supra, slip op. 3 n.3. See also 8 U.S.C. 1105 (au-

thorizing the Department of State’s Bureau of Con-

sular Affairs, which includes the Passport Office, “to

‘liberty’ protected by the Due Process Clause of the Fifth

Amendment. As such this ‘right’ * * * can be regulated within

the bounds of due process.” See also Califano v. Torres, 435

U.S. 1, 4 n.6 (1978).

maintain direct and continuous liaison with the * * *

Central Intelligence Agency”).

Furthermore, as detailed in Judge MacKinnon’s dis-

senting opinion in the court of appeals (App. A, infra,

43a-52a), both prior and subsequent to the enactment

of the Passport Act, the Executive has consistently

denied and revoked passports on national security and

foreign policy grounds. See also note 8, supra.!® Thus,

here, as in Zemel, “‘* * * it could fairly be argued

[that the Secretary’s power to revoke passports was]

adopted by Congress in light of prior administrative

practice.’” 381 U.S. at 18, quoting Kent v. Dulles,

supra, 357 U.S. at 128. See, e.g., Seatrain Ship-

building Corp. v. Shell Oil Co., No. 78-1651 (Feb. 20,

1980), slip op. 23-24; Lorillard v. Pons, 484 U.S. 575,

580-581 (1978).

Kent v. Dulles, supra, does not suggest a contrary

conclusion. Kent did not involve foreign policy or na-

tional security concerns or even any “plainly harmful

conduct.” 357 U.S. at 126. Rather, as the Court ex-

'®6The Executive has expressly informed Congress of its

passport issuance and revocation policy on several occasions.

See, e.g., U.S. Passports, Denial and Review: Hearings on

H.R. 9991 Before Subcomm. No. 1 of the House Comm. on the

Judiciary, 84th Cong., 2d Sess. 12-18 (1956); The Right to

Travel: Hearing Before the Subcomm. on Constitutional Rights

of the Senate Comm. on the Judiciary, 85th Cong., 1st Sess.,

Pt. 2, 72-78, 75, 343-350 (1957); H.R. Rep. No. 2684, 85th

Cong., 2d Sess. 2-3 (1958) (quoting message of President

Eisenhower); Denial of Passports to Persons Knowingly En-

gaged in Activities Intended to Further the International Com-

munist Movement: Hearings on H.R. 18760 Before House

Comm. on Foreign Affairs, 85th Cong., 2d Sess. 32, 63 (1958);

Passport Legislation: Hearings on S. 2770, S. 3998, S. 4110,

and S. 4137 Before Senate Comm. on Foreign Relations, 85th

C- ig., 2d Sess. 23, 25 (1958). See also App. A, infra, 4@a-52a.

43a

plained in Zemel, “the issue * * * in Kent was

whether a citizen could be denied a passport because of

his political beliefs or associations.” 381 U.S. at 13.

Because the passport applicants’ communistic beliefs

did not pose an “imminent danger to the public safety”

and because the Secretary's “scattered rulings” with

regard to communists were “not consistently of one

pattern” (357 U.S. at 128), the Court concluded that

the Secretary lacked statutory authority to deny the

passport applications. In this case, by contrast, the

administrative practice is well documented, and the

Secretary revoked respondent’s passport not because

of his political beliefs, but because his international

travel activities are—as respondent acknowledges —

seriously damaging the foreign policy and national se-

curity of the United States.!7

‘7The court of appeals offered the suggestion (App. A, infra,

16a) that the government might indict respondent and then re-

voke his passport. To be sure, the government may deny a

passport to an applicant who is “participating in illegal conduct

lor] trying to escape the toils of the law * * *.” Kent v. Dulles,

supra, 357 U.S. at 127; Zemel v. Rusk, supra, 381 U.S. at 13.

See 22 C.F.R. 51.70. It is not at all apparent, however, that

such revocation need be predicated on the formal institution of

criminal proceedings. More important, such a limited basis for

denying and revoking passports does not adequately protect the

national security and foreign policy interests of the United

States.

Not all conduct that harms or is likely to harm the vital inter-

ests of this country constitutes criminal conduct. For example,

respondent’s future conduct with regard to Iran is too specula-

tive a basis for a criminal prosecution at this time. Likewise, the

decision of an American citizen living abroad to travel to

another country to assassinate a foreign leader or overthrow a

foreign government may not violate any domestic criminal stat-

ute. Moreover, as the Court recently recognized, prosecution of

a person such as respondent “would subject the CIA and its offi-

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WADE H. McCREE, Jr.

Solicitor General

ALICE DANIEL

Assistant Attorney General

KENNETH S. GELLER

Deputy Solicitor General

ANDREW J. LEVANDER

Assistant to the Solicitor General

LEONARD SCHAITMAN

MICHAEL F .. HERTZ

Attorneys

JULY 1980

cials to probing discovery into the Agency’s highly confidential

affairs. * * * When the Government cannot secure its remedy

without unacceptable risks, it has no remedy at all.” Snepp v.

United States, supra, slip op. 8.

APPENDIX A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 80-1125

PHILIP AGEE

EDMUND S. MUSKIE, SECRETARY OF STATE,

APPELLANT

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

(D.C. Civil Action No. 79-3491)

Argued March 14, 1980

Decided June 27, 1980

Before: MACKINNON, RoBB and WALD, Circuit

Judges.

Opinion for the Court filed by Circuit Judge RoBB.

Dissenting opinion filed by Circuit Judge MACKIN-

NON.

Ross, Circuit Judge: In this case Philip Agee chal-

lenges a regulation relied on by the United States De-

partment of State to revoke his passport. The District

Court declared the regulation invalid for lack of con-

gressional authorization and restored the passport. We

affirm.

Appellee Philip Agee, a United States citizen and a

former employee of the Central Intelligence Agency

(CIA), presently resides in Hamburg, West Germany.

Agee is a leading critic.of the CIA’s clandestine opera-

tions throughout the world. He has written and spoken

extensively attacking American intelligence efforts,

and has purportedly revealed the identities of certain

undercover CIA agents. Agee was issued a United

States passport, No. Z3007741, on March 30, 1978,

with an expiration date of March 29, 1983. However,

the United States Department of State, aware of

Agee’s activities and perhaps believing that they took

on special significance because of the Iranian crisis’

and the recent unrest in other Islamic countries,

moved to revoke his passport.

On December 23, 1979 the United States Consul

General in Hamburg delivered to Agee a letter from

the Department of State notifying him that his

passport was immediately revoked and should be sur-

rendered. The letter invoked the authority of 22

1An article in the New York Post on December 17, 1979 re-

ported that Agee would be invited to visit Iran and serve on an

“international tribunal” created by Ayatollah Khomeini to pass

judgment on the prisoners held in the American Embassy in

Tehran. Agee denied being “invited to Iran by its government,

The Revolutionary Council, or any representative thereof. . .”

(J.A.98), but resolution of this factual dispute is irrelevant to

our decision. See note 3 infra.

C.F.R. §§ 51.70(b)(4) & 51.71(a)(1979). 22 C.F.R.

§ 51.70(b)(4)(1979) provides:

A passport may be refused in any case in which:

The Secretary determines that the national’s ac-

tivities abroad are causing or are likely to cause

serious damage to the national security or the

foreign policy of the United States....

22 C.F.R. § 51.71(a)(1979) states:

A passport may be revoked, restricted or limited

where:

The national would not be entitled to issuance of

a new passport under § 51.70....

According to the State Department letter

The Department’s action is predicated upon a

determination made by the Secretary under the

provisions of Section 51.70(b)(4) that your ac-

tivities abroad are causing or are likely to cause

serious damage to the national security or the

foreign policy of the United States. The reasons

for the Secretary’s determination are, in sum-

mary, as follows: Since the early 1970’s it has been

your stated intention to conduct a continuous

campaign to disrupt the intelligence operations of

the United States. In carrying out that campaign

you have travelled in various countries (including,

among others, Mexico, the United Kingdom,

Denmark, Jamaica, Cuba, and Germany), and

your activities in those countries have caused

serious damage to the national security and

foreign policy of the Uniteu States. Your stated

intention to continue such activities threatens ad-

ditional damage of the same kind.

(J.A. at 13). The letter also informed Agee of his right

to administrative review, and the Department of State

subsequently offered him a hearing on an expedited

basis. Agee rejected this option, however, and on De-

cember 31, 1979, he sued Cyrus Vance, who was then

Secretary of State, in the District Court. The com-

plaint sought declaratory and injunctive relief.

Agee’s complaint challenged the revocation of his

passport on five grounds: (1) that 22 C.F.R.

§ 51.70(b)(4) has not been authorized by Congress and

is therefore invalid; (2) that 22 C.F.R. § 51.70(b)(4) is

impermissibly vague and overbroad; (3) that the revo-

cation of his passport prior to a hearing violated his

Fifth Amendment right to procedural due process; (4)

that the revocation of his passport violated his right to

travel—a liberty interest protected by the Fifth

Amendment; and (5) that his passport was revoked in

order to punish him and suppress his criticism of gov-

ernment policy in violation of the First Amendment.

In proceedings before the District Court on January 3,

1980, Agee’s counsel, for the purposes of attacking the

Secretary’s authority to adopt and apply 22 C.F.R.

§ 51.70(b)(4), conceded the truth of “the charges as

they are made in the letter to Agee.” (Tr. at 16). On

January 18, 1980 the case was orally argued to the

District Court on cross-motions for summary judg-

ment.

By Memorandum and Order dated January 28, 1980

the District Court granted summary judgment to Agee

and ordered the restoration of his passport. The Dis-

trict Court concluded that “(t]he Secretary of State’s

power to revoke or limit a passport flows from Con-

gress not from the President” and “[h]is power is no

greater than Congress may choose to delegate to him.”

Accordingly the court held that 22 C.F.R.

§ 51.70(b)(4) is invalid because “the Secretary’s prom-

ulgation of the challenged regulation was without [ex-

press or implied] authorization from Congress.” On

January 29, 1980 the Secretary of State filed a notice

of appeal from the District Court’s decision, and by

Orders dated February 4 and 5, 1980 this court

granted the Secretary’s motion for a stay pending ap-

peal.

As authority to promulgate and enforce 22 C.F.R.

§ 51.70(b)(4), the Secretary of State relies on the

Passport Act of 1926, 22 U.S.C. § 21la (1976), which

at the time the regulation was adopted in 1968 pro-

vided that:

The Secretary of State may grant and issue

passports, and cause passports to be granted, is-

sued, and verified in foreign countries by diploma-

tic representatives of the United States, and by

such consul generals, consuls, or vice consuls

when in charge, as the Secretary of State may

designate and by the chief or other executive offi-

cer of the insular possessions of the United States,

under such rules as the President shall designate

and prescribe for and on behalf of the United

States, and no other persons shall grant, issue, or

ver?f#-such passports.?

In Kent v. Dulles, 357 U.S. 116 (1958), the Secre-

tary of State had denied two passport applications

*Section 21la was amended in 1978 by the addition of the fol-

lowing language:

Unless authorized by law, a passport may not be desig-

nated as restricted for travel to or for use in any country

other than a country with which the United States is at

war, where armed hostilities are in progress, or where

pursuant to a regulation promulgated in reliance on 22

U.S.C. § 21la. The regulation prohibited the issuance

of passports to members of the Communist Party or to

persons who “engage in activities which support the

Communist movement” or “are going abroad to engage

in activities which will advance the Communist move-

ment for the purpose, knowingly and wilfully of ad-

vancing that movement.” Jd. at 117-18 n.l. The Su-

preme Court held that “[t]he right to travel is a part of

the ‘liberty’ of which the citizen cannot be deprived

without due process of law under the Fifth Amend-

ment,” and, therefore, “[i]f that ‘liberty’ is to be regu-

lated, it must be pursuant to the law-making functions

of the Congress.” /d. at 125, 129. Further, the Court

stated that it would “construe narrowly all delegated

powers that curtail or dilute [the right to travel].” Jd.

at 129. The Court held that Congress did not give the

Secretary of State “unbridled discretion to grant or

withhold a passport from a citizen for any substantive

reason he may choose”, and that the only grounds for

refusing a passport “which it could fairly be argued

were adopted by Congress in light of prior administra-

tive practice” were “relate[d] to citizenship or al-

there is imminent danger to the public health or the physi-

cal safety of United States travellers.

22 U.S.C. § 211a (Supp. II 1978).

By Executive Order No. 11295 (August 5, 1966), 31 Fed. Reg.

10603, the Secretary of State was “designated and empowered

to exercise, without the approval, ratification, or other action of

the President, the authority conferred upon the President by

the first section of the Act of July 3, 1926 (22 U.S.C. 211a), to

designate and prescribe for and on behalf of the United States

rules governing the granting, issuing, and verifying of

passports.”

legiance on the one hand or to criminal or unlawful

conduct on the other.” Jd. at 127-28. The Court ex-

plained that:

The difficulty is that while the power of the Sec-

retary of State over the issuance of passports is

expressed in broad terms, it was apparently long

exercised quite narrowly. So far as material here,

the cases of refusal of passports generally fell into

two categories. First, questions pertinent to the

citizenship of the applicant and his allegiance to

the United States had to be resolved by the Secre-

tary, for the command of Congress was that “No

passport shall be granted or issued to or verified

for any other persons than those owing allegiance,

whether citizens or not, to the United States.” 32

Stat. 386, 22 U.S.C. § 212. Second, was the ques-

tion whether the applicant was participating in il-

legal conduct, trying to escape the toils of the law,

promoting passport frauds, or otherwise engaging

in conduct which would violate the laws of the

United States.

Id. at 127. Thus, the Court, observing that the State

Department rulings concerning Communists were

“scattered” and “not consistently of one pattern”, con-

cluded that the regulation employed to deny passports

to members and supporters of the Communist Party

lacked congressional authorization and was therefore

invalid. Jd. at 128-30.

In Zemel v. Rusk, 381 U.S. 1 (1965), the Supreme

Court considered the validity of an area travel ban im-

posed by the Secretary of State to prohibit travel to

Cuba by all United States citizens. The Court rea-

soned that the language of 22 U.S.C. § 211a “is surely

broad enough to authorize area restrictions, and there

°%

is no legislative history indicating an intent to exclude

such restrictions from the grant of authority.” Jd. at 8.

Noting that area restrictions were imposed cn numer-

ous occasions both before and after the Passport Act

was adopted in 1926, the Court held that the ban on

travel to Cuba was valid because there was “an ad-

ministrative practice sufficiently substantial and con-

sistent to warrant the conclusion that Congress had

implicitly approved it.” Jd. at 8-12. In addition, the

Court stated that, unlike the denial of the passport ap-

plications in Kent v. Dulles, supra, “the Secretary has

refused to validate appellant’s passport not because of

any characteristic peculiar to appellant [i.e., political

beliefs or associations], but rather because of foreign

policy considerations affecting all citizens.” Jd. at 13.8

3The dissent emphasizes this reference in Zemel v. Rusk to

“foreign policy considerations”, as well as the Supreme Court’s

statement that “the restriction which is challenged in this case

is supported by the weightiest considerations of national secu-

rity [as] is perhaps best pointed up by recalling that the Cuban

missile crisis of October 1962 preceded the filing of appellant’s

complaint by less than two months.” 381 U.S. at 13, 16. The

dissent suggests that Zemel v. Rusk upholds passport revoca-

tions on foreign policy and national security grounds in the

broad sense of those terms. In our view, however, Zemel v.

Rusks holds only that, in light of the extensive history of execu-

tive imposition of area restrictions on travel, such restrictions

are valid because they have received congressional authoriza-

tion. See id. at 8-12. The heart of the Zemel opinion is the Su-

preme Court’s statement that “[t]his ce .. therefore not like

Kent v. Dulles, supra, where we were unable to find... an

administrative practice sufficiently substantial and consistent to

warrant the conclusion that Congress had implicitly approved

it.” 381 U.S. at 12. Although the Secretary’s 1961 ban on travel

to Cuba assuredly involved foreign policy and national ‘security

considerations, so too did the Secretary’s denial of passports to

Communist party members and sympathizers pursuant to 22

C.F.R. § 51.135, which was struck down in Kent v. Dulles.

Rather than broadly validating passport revocations on foreign

policy and national security grounds, Zemel v. Rusk merely

sustained one means of satisfying those concerns—the imposi-

tion of area restrictions—because it had been “implicitly ap-

proved” by Congress.

The dissent also notes the Supreme Court’s citation in the

Zemel opinion of 22 U.S.C. § 1732, which directs the President

to “use such means, not amounting to acts of war, as he may

think necessary and proper to obtain or effectuate the release”

of “any citizen of the United States [who] has been unjustly de-

prived of his liberty by or under the authority of any foreign

government.” The Zemel Court stated:

It also cannot be forgotten that in the early days of the

Castro regime, United States citizens were arrested and

imprisoned without charges. We think, particularly in view

of the President’s statutory obligation [under 22 U.S.C. §

1732], that the Secretary has justifiably concluded that

travel to Cuba by American citizens might involve the Na-

tion in dangerous international incidents, and that the

Constitution does not require him to validate passports for

such travel.

381 U.S. at 15. The dissent argues that 22 U.S.C. § 1782 au-

thorized the revocation of Agee’s passport as part of the Presi-

dent’s efforts to free the Americans held hostage in Iran. How-

ever, in revoking Agee’s passport, the Secretary did not rely on

22 U.S.C. § 1732 and, in fact, made no mention whatsoever of

the Iranian crisis. According to the letter that Agee received

from the Department of State, the Secretary relied only on 22

C.F.R. §§ 51.70(b)(4) & 51.71(a) as authority for his action, and

the sole reasons offered for his decision were that:

Since the early 1970’s it has been your stated intention to

conduct a continuous campaign to disrupt the intelligence

operations of the United States. In carrying out that cam-

paign you have travelled in various countries (including,

among others, Mexico, the United Kingdom, Denmark,

Jamaica, Cuba, and Germany), and your activities in those

countries have caused serious damage to the national secu-

rity and foreign policy of the United States. Your stated

intention to continue such activities threatens additional

damage of the same kind.

(J.A. at 13). Thus, 22 U.S.C. § 1782 is not germane to this case.

10a

This court has also considered the issue of congres-

sional authorization for administrative actions impact-

ing on the right of international travel. In Woodward

v. Rogers, 344 F. Supp. 974 (D.D.C. 1972), affd with-

out opinion, 159 U.S. App. D.C. 57, 486 F.2d 1317

(1973), this court summarily affirmed the District

Court’s holding that there existed neither explicit nor

implicit statutory authority for requiring an oath of

allegiance as a prerequisite to the issuance of a

passport. The District Court said:

While an Oath of Allegiance may, indeed, have

been included on the passport application for an

extended period, travel abroad until recently was

not conditioned upon the possession of a passport,

with the exception of limited periods of interna-

tional hostilities or national emergency. Moreover,

there has been no evidence introduced establish-

ing an open and highly published practice of de-

nying applicants passports for simply refusing to

swear to or affirm the Oath. Under these circum-

stances, this Court is extremely reluctant to con-

clude that Congress, in reenacting the passport

legislation in 1952, indicated a clear intention to

authorize the Secretary of State to establish the

Oath requirement as a prerequisite to the exercise

of a citizen’s constitutionally protected right to

travel. Indeed, the Supreme Court has made it

plain that only the clearest of such evidence will

permit this Court to consider Congressional si-

lence to be a substitute for explicit and affirmative

legislative action in limiting the free exercise of

important rights.

344 F. Supp. at 985. In Lynd v. Rusk, 128 U.S. App.

D.C. 399, 389 F.2d 940 (1967), this court held that the

Secretary of State could not withhold a citizen’s

lla

passport for failure to give assurance that he would

not travel without a passport to those countries where

the Secretary had designated travel to be inimical to

the nation’s foreign policy. The court reasoned that

“{ajlthough Congress has approved administrative ac-

tion intended to limit travel to restricted areas

through the means of restricting passports, . . . it has

not made travel to restricted areas a crime and added

possible deprivation of liberty as a sanction for

achieving this objective”; and thus the court concluded

that there was no “basis for inferring that Congress

has given the Secretary the authority to deny legiti-

mate, constitutionally protected travel, merely be-

cause that is a technique which provides greater as-

surance of hindering travel to designated areas.” 128

U.S. App. D.C. at 405, 389 F.2d at 946.

In summary, as the case law makes clear, the Secre-

tary of State must demonstrate that Congress has au-

thorized 22 C.F.R. § 51.70(b)(4) either by an express

delegation or by a “sufficiently substantial and consist-

ent” administrative practice to warrant finding the im-

plied approval of Congress.

The Secretary argues that the Passport Act of 1926,

22 U.S.C. § 21la, interpreted consistently with the

President’s power to protect national security and

conduct foreign affairs, authorizes the revocation of

Agee’s passport under 22 C.F.R. § 51.70(b)(4), espe-

cially in light of Agee’s concession for purposes of his

summary judgment motion that his activities seriously

damage the national security and the foreign policy of

the United States. However, the Passport Act does

not expressly authorize the Secretary to deny or re-

12a

voke a passport on rational security or foreign policy

grounds, and no subsequent legislation relating to

passports has explicitly delegated such authority. In

fact, in 1958 and in 1966 the Department of State un-

successfully sought this precise power from Congress,‘

and in 1978 Congress limited the Secretary’s discre-

tion, as upheld in Zemel v. Rusk, supra, to impose

area restrictions on travel.5 To be sure the failure to

enact the legislation sought by the Department of

State and the contraction of executive power over area

restrictions do not conclusively signify congressional

disapproval of 22 C.F.R. § 51.70(b)(4); but neither do

they support the Secretary’s construction of 22 U.S.C.

§ 21la as a broad delegation of authority to regulate.

Moreover, with regard to the inherent foreign affairs

power of the executive, the Supreme Court em-

phasized in Baker v. Carr, 369 U.S. 186, 211 (1962),

that “it is error to suppose that every case or con-

troversy which touches foreign relations lies beyond

judicial cognizance”, and we reaffirm what this court

stated in Lynd v. Rusk, supra:

4S. 4110, 85th Cong., 2d Sess. (1958), introduced by Senator

Green at the request of the Secretary of State, would have per-

mitted the denial of passports to persons whose activities or

presence abroad would “seriously impair the conduct of the

foreign relations of the United States” or would “be inimical to

the security of the United States.” H.R. 14895, 89th Cong., 2d

Sess. (1966), introduced by Representative Hays, would have

sanctioned the refusal or revocation of a passport if “the Secre-

tary determines that the applicant’s activities abroad are caus-

ing or are likely to cause serious damage to the national security

or the foreign policy of the United States.” Both these bills died

in committee and were never brought to a vote.

5See note 2 supra.

13a

[I]n the cases before us the Secretary does not

press any claim that he has an “inherent” author-

ity, and contends his action is valid under the

Passport Act of 1926. It is not insignificant that

the Zemel opinion, supporting the Secretary, did

not rely on an inherent authority. We think any

claim of inherent authority would fall afoul of the

Supreme Court’s warning in Kent v. Dulles, 357

U.S. 116, at 129 (1958), that as freedom to travel

is part of the “liberty” protected by the Fifth

Amendment, “if that ‘liberty’ is to be regulated, it

must be pursuant to the law-making functions of

the Congress.”

128 U.S. App. D.C. at 408, 389 F.2d at 944.

The Secretary contends that past administrative and

legislative practice also confirms congressional ap-

proval of his authority to deny or revoke passports on

the basis of “serious damage to the national security or

the foreign policy of the United States.” However, the

Secretary details only one instance in twelve years in

which 22 C.F.R. § 51.70 (b) (4) was‘employed to re-

voke a passport,® and only five refusals of passport ap-

plications, two prior to the passage of the Passport Act

of 1926 and three during the mid-1950’s, which were

even arguably for national security or foreign policy

reasons.” Regardless of whether Congress was aware

*In 1970 the passports of Charles McKissack, attorney for

Mrs. Mary Sirhan, and his assistant were revoked pursuant to

22 C.F.R. § 51.70(b)(4) as they were preparing to leave the

United States, and they were unsuccessful in their attempts to

enjoin the revocations. (Br. for Appellant at 46).

7In 1906 a passport was denied to an American citizen who

had traveled to China and become notorious as a promoter of

gambling and prostitution. In 1907 a passport was denied to

Nelken Waldberg, an American citizen living in Cairo, who “was

l4a

of these scattered examples when it adopted the

Passport Act in 1926 and other travel control legisla-

tion in 1941, 1952, and 1978, such evidence hardly

amounts to a “substantial and consistent administra-

tive practice” demonstrating implied congressional au-

thorization for the challenged regulation. Until Agee’s

case arose 22 C.F.R. § 51.70(b)(4)) was virtually un-

used.

In addition, the Secretary relies on a series of stat-

utes, regulations, proclamations, orders and advisory

opinions dating back to 1856, most of which concern

engaged ... in blackmailing projects, and was disturbing, or

endeavoring to disturb, the relations of this country with the

representatives of foreign countries.” /d. at 37-38.

Colonel Hubert Julian, whose activities include supplying

arms to various countries, was denied a passport in 1954. In

1955 two passport applications were refused because the appli-

cants’ participation in political affairs abroad had become an

internal problem to the foreign governments involved. /d. at 46;

(Rep. Br. for Appellant at 17 & n. 15). In addition, the Secre-

tary notes that the statistics provided to the Senate Foreign

Relations Committee during hearings in 1957 showed that,

apart from numerous “passport refusals for security reasons”

that were related to 22 C.F.R. § 51.135, the Communist regula-

tion held invalid in Kent v. Dulles, twenty-one passport applica-

tions in 1955 and ten passport applications in 1956 were refused

because the applicants were “participants in political affairs

abroad whose activities were deemed harmful to good relations

and persons whose previous conduct abroad has been such as to

bring discredit on the United States and cause difficulty for

other Americans (gave bad checks, left unpaid debts, had diffi-

culty with police, ete.).” (Br. for Appellant at 44); Department

of State Passport Policies, Hearings before the Senate Commit-

tee on Foreign Relations, 85th Cong., 1st Sess. 38-40 (1957).

The rationale for these passport denials, however, appears

only tenuously related to 22 C.F.R. § 51.70(b)(4)’s concern with

“serious damage to the national security or the foreign policy of

the United States.”

15a

the power of the executive to refuse passports to per-

sons engaged in criminal conduct and to restrict or

condition the issuance of passports during time of war

or national emergency;® but such measures are inappo-

site and unpersuasive on the issue of implicit authority

to invoke national security or foreign policy consid-

erations during peacetime. See Kent v. Dulles, supra

at 128. Further, as illustrated by the Supreme Court’s

decisions in Kent v. Dulles, supra at 127, and Zemel

v. Rusk, supra at 8, the criterion for establishing con-

gressional assent by inaction is the actual imposition of

sanctions and not the mere assertion of power. “{O]nly

the clearest . . . evidence [of past administrative and

legislative practice] will permit this Court to consider

Congressional silence to be a substitute for explicit and

affirmative legislative action in limiting the free exer-

cise of important rights.” Woodward v. Rogers, 344 F.

Supp. at 985. Such proof is lacking here.

We conclude that 22 C.F.R. §51.70(b) (4) was prom-

ulgated by the Secretary of State and enforced against

Agee without the requisite express or implied authori-

zation of Congress.® The Secretary may not revoke

Agee’s passport unless Congress has authorized him to

do so, for “the right to travel abroad” is constitution-

ally protected and subject to regulation only “pursuant

8See, e.g., Public. L. No. 65-154, 40 Stat. 559 (1918); Pub. L.

No. 77-114, 55 Stat. 252 (1941); Pub. L. No. 82-414, 66 Stat.

190 (1952); Pub. L. No. 95-426, 92 Stat. 971 (1978); 23 Op. Atty.

Gen. 509, 511 (1901); Proclamation No. 1473, 40 Stat. 1829

(1918); 17 Fed. Reg. 8013 (1952).

®Because we so hold, we need not consider Agee’s constitu-

tional attacks on the regulation and its application to him based

on the First and Fifth Amendments.

16a

to the law-making functions of the Congress.” See

Aptheker v. Secretary of State, 378 U.S. 501, 505

(1964); Kent v. Dulles, supra at 129.

The decisions of the Supreme Court would permit

the revocation of Agee’s passport if he were indicted

or otherwise charged with criminal conduct,!° but he

has not been charged with any violation of law. The

State Department’s letter revoking his passport makes

no such charge. Under the decisions it is not enough,

absent a formal allegation of criminal activity, that

Agee’s conduct may be considered by some to border

on treason. We are bound by the law as we find it.

The judgment of the District Court declaring 22

C.F.R. § 51.70 (b) (4) invalid and ordering the restora-

tion of Agee’s passport is affirmed, and the stay

pending appeal is vacated.

So ordered.

10See Kent v. Dulles, supra at 127-28. 22 C.F.R. § 51.70(a)(1)

(1979), provides for the deniai or revocation of a passport if

“(t]he applicant is the subject of an outstanding Federal warrant

of arrest for a felony, including a warrant issued under the Fed-

eral Fugitive Felon Act (18 U.S.C. 1073)... .”

In Sneep v. United States, 48 U.S.L.W. 3527, 3529 & n. 3

(U.S. Feb. 19, 1980) (Nos. 78-1871 & 79-265), Mr. Justice Ste-

vens observed in his dissent that “Congress has enacted a

number of criminal statutes punishing the unauthorized dis-

semination of certain types of classified information” including

“18 U.S.C. § 798, which imposes a prison term of 10 years and a

$10,000 fine for knowingly and wilfully publishing certain types

of classified information” and 18 U.S.C. § 794, which makes it a

criminal offense punishable by life in prison to communicate na-

tional defense information to a foreign government.” The Secre-

tary, in fact, acknowledges that Agee may be in violation of 18

U.S.C. § 798 because he “has ‘communicated’ ‘to persons not en-

titled to receive it’ ‘information relating to the national defense’

which could be ‘used to the injury of the United States.’” (Br.

for Appellant at 23 n.8).

17a

MACKINNON, Circuit Judge. (Dissenting) The issue

for determination is whether regulations of the De-

partment of State, under which the Secretary of State

revoked the passport of Philip Agee, are unconstitu-

tional on their face and as applied. Agee, a former

agent of the Central Intelligence Agency (CIA), con-

cedes in this case that his international travel ac-

tivities “have caused serious damage to the national

security and foreign policy of the United States” and

that his “stated intention to continue such activities

threatens additional damage of the same kind.” (App.

9, 29) The District Court held that while such grounds

may be adequate to support a passport revocation

during an emergency, they are not adequate in

“peacetime.” (App. 51) This overlooks the significance

of the enactment by Congress in 1978 which extended

the requirement for passports in emergencies into the

peacetime era. It also does not give adequate recogni-

tion to the powers of the Executive under the Hostage

Act and implicit adoption by Congress in 1978 of prior

administrative practice in passport revocations. For

this and for other reasons which are demonstrated

hereafter, the Secretary of State on the record in this

declaratory judgment action is authorized to revoke

Agee’s passport. It is an unreasonable interpretation

of congressional intent to hold that a passport cannot

be revoked for one with Agee’s propensities to cause

serious damage to this nation. No United States Con-

gress would ever intend to require a President to issue

a passport to one with Agee’s record and intentions. If

the decision of the District Court is not to be reversed

the least that should be done would be to vacate and

remand for the hearings that were never held.

18a

FACTS

A. Agee’s Background—Past Activities.

Agee is an American citizen who is presently resid-

ing in Hamburg, West Germany after having pre-

viously been deported from Great Britain, (danger to

national security), France, Germany and Holland (en-

danger Holland). (App. 92); P. Agee, L. Wolf, Dirty

Work: CIA in Western Europe 286-300 (1978).

When Agee first entered on duty with the CIA as an

agent on July 22, 1957, he executed a formal “Secrecy

Agreement” with the Agency which included the fol-

lowing undertaking:

[I]n consideration of my employment by CIA I

undertake not to publish or to participate in the

publication of any information or material relating

to the Agency, its activities or intelligence ac-

tivities generally, either during or after the term

of my employment by the Agency without specific

prior approval by the Agency.?

(App. 65)

Thereafter, in reliance on Agee’s execution of the

Secrecy Agreement, the CIA assigned him to highly

confidential duties in a trust relationship with the

agency. He was given training in CIA clandestine op-

erations, and allowed to enter CIA headquarters

where he became personally acquainted with numer-

ous CIA employees who had undercover assignments,

many of whom are still active. Agee also was assigned

1The validity of such Agreement was upheld by the Supreme

Court in Snepp v. United States, 48 U.S.L.W. 3527 (U.S. Feb-

ruary 19, 1980) (per curiam), rehearing denied, April 14, 1980.

19a

to serve in undercover assignments abroad. (App.

56-57) He worked in numerous positions of trust in the

CIA including one with the Directorate of Operations,

and he was permitted to acquire a detailed knowledge

of the secret methodology used by the agency to pro-

vide cover for its undercover employees and

cooperating sources. (App. 57)

As a consequence of personal problems that

threatened to expose his CIA affiliation in an under-

cover position, Agee resigned in November of 1968.

(App. 57) In November, 1971 the CIA received its first

indication that Agee had embarked on a program to

expose CIA intelligence activities when a publication

in Uruguay published a letter, purportedly written by

Mr. Agee, in which the CIA was accused of interfer-

ence in upcoming Uruguayan elections.

Subsequently, on October 3, 1974 Agee issued a

press release in London as follows:

Today, I announced a new campaign to fight the

United States CIA wherever it is operating. This

campaign will have two main functions: First, to

expose CIA officers and agents and to take the

measures necessary to drive them out of the coun-

tries where they are operating; secondly, to seek

within the United States to have the CIA

abolished.

This effort to identify CIA people in foreign

countries has been going on for some

time... . (Today’s) list was compiled by a small

group of Mexican comrades whom I trained to

follow the comings and goings of CIA people be-

fore I left Mexico City.

Similar lists of CIA people in other countries

are already being compiled and will be announced

20a

when appropriate. We invite participation in this

campaign from all those who strive for social jus-

tice and national dignity.

(App. 58)

Following that announcement Agee continued to en-

gage in a world-wide program designed to expose CIA

activities and personnel. In doing so he resorted to

publications, personal appearances and press confer-

ences throughout the world, including London, Swe-

den, Denmark, Jamaica, and Cuba. He was quoted or

interviewed on the same subject in newspapers or by

the television media in Portugal (concerning CIA

agents in Angola), Spain, Holland, Rome (concerning

CIA activities in Switzerland), Bolivia, Australia and

New Zealand. (App. 58-61) At the time of these dis-

closures Agee allegedly admitted some of them and

some were credited to him by the publishers or writers

without his confirmation. When the CIA’s Athens

Chief, Richard Welch, was murdered by Greek Ter-

rorists in December, 1975 some CIA officials repor-

tedly blamed Agee’s activities in part. (App. 92)

In 1978, Agee participated in the publication of a

book entitled, Dirty Work: CIA in Western Europe

(1978). In the book’s introduction Agee stated he in-

tended, by participating in the publication, to create

opposition to the CIA by publishing the identities of

CIA employees. The book claims reliance on a number

of “official publications” but also asserts “use of other,

less public information from within several American

embassies, and other sources as noted... .” Jd. at 319.

The book contains an Appendix of 415 pages that pur-

ports to list and describe a large number of undercover

2la

CIA employees. (App. 61, 66-75) There is no record

that Agee ever made a request to be released from the

terms of his Secrecy Agreement. (App. 56) His right

to write is recognized, but not his right to violate his

Secrecy Agreement and disclose information vital to

the national security of the United States.

B. The Iranian Crisis.

We may take judicial notice of the significant facts of

the United States’ involvement in the present Iranian

Crisis. Fed. R. Evid. 201(b), (c), (f). Early in 1979 the

Shah of Iran was forced to leave his country. The

country soon passed into the hands of a self-styled Is-

lamic Republic, which termed itself “Revolutionary.”

The person who became the principal figure in the

government of the country was a prominent Moslem

cleric, and there were a great many quick executions

of persons who previously held top positions in the

Shah’s government. As frequently happens with rev-

olutions, the government that replaced the Shah did

not quickly reach maturity and dangerous unrest con-

tinues throughout the country, and, principally in the

capital city, Tehran.

On November 4, 1979, a severe international crisis

developed between the United States and a faction of

militant insurgents in Iran who invaded the United

States Embassy in Tehran, occupied the entire com-

pound by force, seized over 50 United States citizens

who were duly accredited as members of the official

United States diplomatic mission to Iran, and confined

them in the Embassy. These Iranian terrorists have

continued to hold the members of the Embassy staff as

22a

hostages to their unlawful demand that the United

States, with whom Iran has no extradition treaty,

extradite Mohammad Reza Pahlavi, the Ex-Shah of

Iran. The Ex-Shah, suffering from cancer and a bile

duct obstruction had been temporarily admitted to the

United States for a short period in November, 1979 for

emergency surgery. The Ex-Shah has long since de-

parted from the United States, and the United States

has never acceded to the demand for his extradition to

Iran. Nevertheless, the militant insurgents, voicing

other nebulous complaints, continue to occupy the

United States Embassy and by force and violence to

hold captive therein the official staff members of the

United States Diplomatic Mission.

The United States took the matter to the Interna-

tional Court of Justice at the Hague where the above

facts as alleged by the United States were not con-

tradicted by Iran. That Court of December 15, 1979

was unanimous in issuing an Order which in significant

part states:

However important and however connected

with the present case, the inequities attributed to

the United States Government by the Govern-

ment of Iran in that letter may appear to be to the

latter Government, the seizure of the United

States Embassy and consulates and the detention

of internationally protected persons as hostages

cannot, in the view of the court, be regarded as

something “secondary” or “marginal,” having re-

gard to the importance of the legal principles in-

volved. * * *

There is no more fundamental prerequisite for

the conduct of relations between states that the

inviolability of diplomatic envoys and embassies,

23a

so that throughout history nations of all creeds

and cultures have observed reciprocal obligations

for that purpose.

United States Diplomatic and Consular Staff in

Tehran, Provisional Measures, Order of 15 December

1979, I.C.J. Reports 1979, p. 15, 19. On April 4, 1980,

the President of the United States announced the

severance of diplomatic relations with Iran because of

Iran’s refusal to release the hostages. On May 24, 1980

the World Court announced its unanimous decision

declaring Iran to be in violation of international law in

holding the hostages.

C. Agee’s Relation to the Hostage Crisis in Iran.

With this situation existing on December 17, 1979 a

newspaper article in the New York Post reported that

Agee had been invited to travel to Iran in order to

participate in a “Tribunal” to help judge the American

hostages then being held in Tehran under the condi-

tions described above. (App. 37) It is incorrect to state

that the Secretary did not mention the Iranian crisis as

the record refers to the “damage . . . found in the re-

cent attacks on the United States [Embassy]... in

Iran . . .” (App. 36) (Emphasis added).

Judicial notice is also taken of the generally known

fact that following the overthrow of the Shah those

who succeeded to power in Iran conducted so-called

revolutionary “Tribunals” which involved many mass

_ trials that almost invariably led to imposition of the

death sentence and prompt execution. Fed. R. Evid.

201(b), (c), (f). While there was no assurance that such

would be the result of the Iranian tribunal to which

24a

Mr. Agee was invited to attend, he made no prompt

public denial of the invitation nor any statement with

respect thereto. The Iranian government also profes-

sed an inability to guarantee the security of the hos-

tages. This created the gravest concern in the United

States for the safety of its citizens who comprised the

Embassy staff members being held hostage. (App. 37)

In addition to the situation in Iran, recent attacks on

United States embassies also occurred in other Islamic

countries, Libya and Pakistan (App. 36), and the

United States Ambassador to Colombia was held hos-

tage during the same period by a band of militants in

Bogota. The State Department expressed its judgment

that the international situation was such»that it was

likely that other “United States diplomatic facilities,

including embassies and consulates, would be taken

over by force and that United States diplomats and

other nationals would be physically harmed.” (App. 37)

Given Agee’s prior disclosures of United States’ in-

telligence activities throughout the world, and some of

the results that were outlined and detailed in the un-

controverted Government affidavit (App. 36-37), the

State Department concluded that “Agee’s activities

have caused and are likely to cause serious damage to

the national security and foreign policy of the United

States.” (App. 37-38) The United States allows its

citizens more freedom of expression than any nation in

the world, but our Constitution and laws do not re-

quire that we assist illegal conduct that adheres to our

enemies, causes serious damage to our national secu-

25a

rity, and endangers the lives of our citizens. The State

Department was well advised to “mark him well.”2

D. The Passport Revocation.

As the District Court describes the situation:

“The Department of State, aware of Agee’s ac-

tivities and believing that they took on particular

significance in light of the recent Iranian crisis

and the general unrest in other areas, moved to

revoke his passport.”

(App. 47) (Emphasis added). To revoke his passport,

on December 23, 1979 the State Department sent the

following letter by cable to the United States consulate

in Hamburg, West Germany for delivery to Agee:

The Department of State has requested the

Consulate to inform you that the Department has

revoked Passport No. Z3007741 issued to you on

March 30, 1978 under the provisions of Section

51.71(a) of Title 22, Code of Federal Regulations.

The Department’s action is predicated upon a

determination made by the Secretary under the

provisions of Section 51.70(b)(4) that your ac-

tivities abroad are causing or are likely to cause

serious damage to the national security or the

foreign policy of the United States. The reasons

for the Secretary’s determination are, in sum-

mary, as follows: Since the early 1970’s it has been

?Breathes there the man, with soul so dead,

Who never to himself hath said,

This is my own, my native land!

Whose heart hath ne’er within him burned,

As home his footsteps he hath turned,

From wandering on a foreign strand!

If such there breathe, go, mark him well. . . [etc.]

The Lay of the Last Minstrel, Sir Walter Scott, Canto Sixth, I.

26a

your stated intention to conduct a continuous

campaign to disrupt the intelligence operations of

the United States. In carrying out that campaign

you have travelled in various countries (including,

among others, Mexico, the United Kingdom,

Denmark, Jamaica, Cuba, and Germany), and

your activities in those countries have caused

serious damage to the national security and

foreign policy of the United States. Your stated

intention to continue such activities threatens ad-

ditional damage of the same kind.

You are advised of your right to a hearing under

Sections 51.80 through 51.105 of the Regulations. A

copy of the regulations is enclosed. If you should

desire a hearing, you must notify the Consulate

within sixty days after your receipt of this notice.

* * *

You are also advised that the Consulate is pre-

pared to receive, on an expedited basis, any evi-

dence you may wish to present on your behalf as

to why your passport should be re-instated. This

opportunity to present evidence is in addition to

your right to a hearing pursuant to the Regula-

tions and is designed to afford you the fullest pos-

sible due process.

(App. 13) (Emphasis added)

II.

THE INSTANT DECLARATORY JUDGMENT PROCEEDINGS

As indicated above, the State Department letter

(App. 13) advised Agee of his right to a hearing on the

revocation of his passport in accordance with the

Passport Regulations, 22 C.F.R. §§ 51.80-51.1053 A

3Such Regulations provide every conceivable procedural pro-

tection for citizens who are denied passports.

27a

copy of the regulations was enclosed. However, Agee

elected not to exhaust his administrative remedies,

even though he was advised that the Consulate was

prepared on an expedited basis to receive any evidence

he desired to present. (App. 13) So instead of appeal-

ing the revocation by the Secretary of State, on De-

cember 31, 1979 Agee elected to file a complaint in the

United States District Court for the District of Co-

lumbia against Cyrus Vance, Secretary of State,

seeking declaratory and injunctive relief. He should

have been required to exhaust his administrative rem-

edy, Robeson v. Dulles, 235 F.2d 810 (D.C. Cir.), cert.

denied, 352 U.S. 895 (1956),4 or failing that, to make a

more adequate record in this case.

*An unanimous en banc decision of this Court in Robeson v.

Dulles, 235 F.2d 810 (D.C. Cir.), cert. denied, 352 U.S. 895

(1956), held, in practically identical circumstances to the present

case, that a passport applicant was required to exhaust his ad-

ministrative remedies and, failing that, could not assert the in-

validity of the regulation providing for one. Ct. National

Lawyers Guild v. Brownell, 225 F.2d 552 (D.C. Cir.), cert. de-

nied, 351 U.S. 927 (1956). The Court refused to assume the in-

validity of a hearing that had not been held or the illegality of

questions which had not been asked. The plaintiffs in both Kent

v. Dulles, 357 U.S. 116 (1958) and Zemel v. Rusk, 381 U.S. 1

(1965) did bring declaratory judgment actions but there was no

indication that the Government objected to such procedure. Ata

minimum a hearing should have been held, if not before the De-

partment of State then before the Court. If the prior adminis-

trative practice were held to be insufficient to support the reg-

ulation the case should be remanded for further hearing. Failing

that, requires one to deal with the sketchy record. However, if

the majority considers this record to be adequate, a dissent may

point to deficiencies that indicate Agee has not sustained his

burden of pruwing that the Department acted improperly in re-

voking his passport.

28a

This complaint, which initiated the case presently

before the Court, alleges that Agee suffered First and

Fifth Amendment violations of his rights under the

United States Constitution. It also alleges that Agee is

a citizen of the United States residing in West Ger-

many and holds a passport issued on March 30, 1978 to

expire on March 29, 1983; that he is a well-known critic

of the foreign policy of the United States and the clan-

destine activities of the Central Intelligence Agency;

that on December 23, 1979 his passport was revoked,

effective immediately, under the authority of 22

C.F.R. §§ 51.70(b)(4) and 51.71; and that the relevant

State Department regulations authorized revocation of

passports when:

(4) The Secretary determines that the national’s

activities abroad are causing or likely to cause

serious damage to the national security or the

foreign policy of the United States.

(App. 3); 22 C.F.R. § 51.70(b)(4).

The complaint charges that the revocation of Agee’s

passport was invalid and unlawful for five-stated rea-

sons and that such revocation caused him irreparable

injury. It prayed that the Court (a) declare 22 C.F.R.

5The complaint describes the five reasons and irreparable in-

jury as follows:

a. Revocation for the reasons set out in 22 C.F.R.

§51.70(b)(4) has not been authorized by Congress, and

is therefore impermissible;

b. 22 C.F.R. § 51.70(b)(4) is vague and overbroad, in vio-

lation of the First Amendment;

ce. In the circumstances of this case, revocation without

prior notice and hearing violates the due process clause

of the Fifth Amendment;

29a

§§ 51.70(b)(4) and 51.71 invalid and unconstitutional on

their face and as applied to Agee, and (b) withdraw the

revocation and restore Agee’s passport. (App. 4)

The matter came on for hearing in the District Court

on January 3, 1980, at which hearing it was concluded

that Agee would file a motion for summary judgment,

to which the government would respond. In the course

of the January 3rd hearing a colloquy occurred with

the court in which Agee’s counsel conceded on behalf

of his client that Agee was “causing or is likely to

cause serious damage to the national security. . .”,

(App. 16-17, 29-30), and intended “to continue such

activities”. (App. 34, 30) (Emphasis added) Agee had

often expressed his intention to do just that.

The District Court filed its Memorandum and Order

on January 28, 1980 granting Agee’s motion for sum-

mary judgment and denying the cross-motion of the

United States; its judgment was based primarily on a

determination that the regulation was invalid. Other

d. Revocation deprives plaintiff of liberty without due

process of law, in violation of the due process clause of

the Fifth Amendment;

e. Defendant revoked plaintiff's passport*in order to

penalize and suppress his criticism of the United States

government’s policies and practices, in violation of the

First Amendment.

7. Revocation of plaintiff's passport has caused and will continue

to cause him irreparable injury, including interference with his

right to live abroad, his right to pursue his chosen occupation

free from unreasonable governmental interference, his right to

travel, his right to criticize the policies of the United States of

America and of other nations, and his right to live with his fam-

ily.

(App. 3-4)

30a

issues were not reached. The court stated: “[aJll that is

held here is that because Congress had not acted to

grant the Secretary authority, the regulation in issue

cannot be upheld.” (App. 53)

In reaching this decision the District Court claimed

support primarily from Kent v. Dulles, 357 U.S. 116

(1958) and Zemel v. Rusk, 381 U.S. 1 (1965), from

which it concluded: “The Secretary of State’s power to

revoke or limit a passport flows from Congress not

from the President . . . His power is no greater than

Congress may choose to delegate to him.” (App. 49) As

applied to Agee’s case, the District Court’s decision

held that Congress, in authorizing the Preisdent to

promulgate passport regulations, did not authorize him

by regulation to provide for the revocation of

passports of citizens in “peacetime” who are causing or

likely to cause serious damage to the “national secu-

rity” or the “foreign policy” of the United States and

intended to continue to cause such damage.

For reasons hereinafter set forth it is submitted that

such conclusion misreads congressional intent and

Kent and Zemel; that such decisions support a judg-

ment here holding that the regulations authorizing the

revocation of Agee’s passport because of the serious

damage he was causing and threatening to cause to our

national security and foreign relations are constitu-

tional; and that the revocation on such stated grounds

was also constitutional.

Ill.

STATUTORY AUTHORITY FOR PASSPORT REVOCATION

The authority for the Secretary of State and con-

sular officials to issue passports “wnder such rules as

3la

the President shall designate and prescribe for and on

behalf of the United States” has existed since the first

Passport Act was adopted on August 18, 1856, ch. 127,

11 Stat. 60-61. There have been minor amendments to

the act but none changed the italicized wording set

forth above granting the President the power to pre-

scribe such rules.* The same grant of power continues

to the present day in 22 U.S.C. § 21la:

§21la. The Secretary of State may grant and issue

passports, and cause passports to be granted, is-

sued, and verified in foreign countries by diploma-

tic representatives of the United States, and by

such consul generals, consuls, or vice consuls

when in charge, as the Secretary of State may

designate, and by the chief or other executive offi-

cer of the insular possessions of the United States,

under such rules as the President shall designate

and prescribe for and on behalf of the United

States, and no other "ahr shall grant, issue or

verify such passports ¢ . .7

SSubsequent amendments include: Act of March 8, 1863, ch.

79, 12 Stat. 754; Act of May 30, 1866, ch. 102, 14 Stat. 54, R.S. §

4075; Act of June 14, 1902, ch. 1088, 32 Stat. 386; Act of June 4,

1920, ch. 223, 41 Stat. 750-51.

The “Foreign Relations Authorization Act, Fiscal Year

1979,” approved October 7, 1978, added a sentence limiting the

area restrictions that might be placed on passports.

“Unless authorized by law, a passport may not be desig-

nated as restricted for travel to or for use in any country

other than a country with which the United States is at

war, where armed hostilities are in progress, or where

there is imminent danger to the public health or the physi-

cal safety of United States travellers.”

Pub. L. No. 95-426, Title. 1, § 124, 92 Stat. 971 (1978).

Agee’s passport was not so restricted and this provision

does not relate to the revocation of Agee’s passport on

32a

22 U.S.C. 21la (Emphasis added). As the last clause

indicates, the original purpose of this act was as much

to stop Governors, notaries public, clerks of court and

others from issuing passports as to recognize the

power in the Secretary of State to issue them. This

was a task that “naturally fell to the Department of

State, as one of its manifestly proper functions” and

had been exercised from the start of the nation. G.

Hunt, The American Passport 36-42 (1898). However,

in recent years the significance of a passport has

changed as they came to be required for international

travel.

Pursuant to the statutory authority cited above,

that passports “may” be issued under rules prescribed

by the President, and in accordance with authority

lawfully delegated to him by the President,® the Secre-

tary of State, on April 4, 1968 issued the regulation

referred to in Agee’s complaint:

grounds personal to him that his travel would seriously

damage our national security and foreign relations.

8“§301. General authorization to delegate functions; publica-

tion of delegations

“The President of the United States is authorized to

designate and empower the head of any department or

agency in the executive branch, or any official thereof who

is required to be appointed by and with the advice and con-

sent of the Senate, to perform without approval, ratifica-

tion, or other action by the President (1) any function

which is vested in the President by law, or (2) any function

which such officer is required or authorized by law to per-

form only with or subject to the approval, ratification, or

other action of the President: Provided, That nothing con-

tained herein shall relieve the President of his responsibil-

ity in office for the acts of any such head cr other official

designated by him to perform such functions. Such desig-

nation and authorization sha!l be in writing, shall be pub-

33a

§ 51.70, Denial of Passports. (a) A passport, ex-

cept for direct return to the United States, shall

not be issued or renewed in any case in which. . .

(4) the Secretary determines that the national’s

activities abroad are causing or are likely to cause

serious damage to the national security or the

foreign policy of the United States...

Passport Regulations, 22 C.F.R. § 51.70 (1968), 33

Fed. Reg. 5681 (Emphasis added). Subsection (4) has

remained substantially unchanged to this date.® Agee’s

basic contention here, which is supported by the deci-

lished in the Federal Register, shall be subject to such

terms, conditions, and limitations as the President may

deem advisable, and shall be revocable at any time by the

President in whole or in part.

3 U.S.C. § 301, 65 Stat. 713. It was this authority that the

President relied upon on August 5, 1966, when he issued Execu-

tive Order 11295 prescribing rules governing the granting, is-

suing and verifying of United States passports and delegating

his relevant powers to the Secretary of State. The Executive

Order provides as follows:

By virtue of the authority vested in me by Section 301 of

Title 3 of the United States Code, and as President of the

United States, it is ordered as follows:

SECTION 1. Delegation of authority. The Secretary of

State is hereby designated and empowered to exercise,

without the approval, ratification, or other action of the

President, the authority conferred upon the President by

the first section of the Act of July 3, 1926 (22 U.S.C. 211a),

to designate and prescribe for and on behalf of the United

States rules governing the granting, issuing, and verifying

of passports. . .

31 Fed. Reg. 10603.

*The only change since 1968 is that in the present regulation §

51.70 relates to the isswance of passports, and § 51.71 provides

“a passport may be revoked, restricted or limited where: (a) the

national would not be entitled to the issuance of a new passport

under 51.70; .. .”, 22 C.F.R. §51.70, 51.71.

34a

sion of the District Court, is that this regulation is in-

valid “because Congress has not [validly] acted to

grant the Secretary [the] Authority...” to exercise

the authority conferred by said regulations. (App. 53)

The 1856 provision in § 21la, as quoted above which

authorizes the President to issue passports “under

such rules as the President shall designate and pre-

scribe for and on behalf of the United States”, is ob-

viously of sufficient breadth to authorize the promul-

gation of the questioned rule. It is, however, con-

tended that the statute cannot be construed as broadly

as Congress provided because to do so would consti-

tute an unconstitutional delegation of legislative power

since the statute (§ 21la) contained no adequate stand-

ard. Kent v. Dulles, and Zemel v. Rusk, decided in

1958 and 1965 respectively, held that the President’s

authority thereunder “. . .authorizes only those

passport refusals and restrictions ‘which it could fairly

be argued were adopted by Congress in light of prior

administrative practice,’ Kent v. Dulles. ..”. Zemel

v. Rusk, 381 U.S. at 18. It is also contended that there

was no administrative practice prior to 1926 of denying

passports on grounds that our national security or

foreign policy was being or would be seriously dam-

aged.

Such construction of Zemel v. Rusk, however, is

unwarranted because the Court there did uphold the

denial of passports to an entire area (Cuba) on the

grounds of “national security”, 381 U.S. at 16, and

“foreign policy considerations”, 381 U.S. at 13. The

greater power to deny passports to all citizens for a

limited area on such grounds necessarily includes the

35a

lesser power to deny a passport to an individual citizen

on the same grounds where it is conceded that his

worldwide activities have caused serious damage to

our national security and foreign policy, and that his

stated intention to continue such activities was “likely

to cause” additional damage of the same character.

(App. 34, 29) This point, however, is not asserted as

the rule for decision here, because the Department’s

administrative history of passport revocation, which

was adopted by Congress in its 1978 enactment, sup-

ports the regulation and the revocation of Agee’s case.

No nation should request another nation to aid one of

its citizens who admittedly intends to damage its na-

tional security and foreign policy.

IV.

THE SUPREME COURT AND PASSPORT REVOCATION

Agee contends that the Supreme Court cases dis-

cussing passport denials support his case. However,

the two major cases, Zemel v. Rusk and Kent v. Dul-

les, actually provide much stronger support for the

Government’s case. The analysis of this issue must

start with the admission by Agee that his travel ac-

tivities have caused serious damage to the national se-

curity and foreign policy of the United States and that

he intends to continue these activities. Notwithstand-

ing this concession, Agee argues that Congress did not

intend, when it authorized the President to issue

passports “under such rules as he shall designate and

prescribe,” that he should be able to promulgate a

regulation authorizing the revocation of passports for

damage to our national security or foreign policy. On

36a

the basis of these facts, the following discussion will

establish that Zemel v. Rusk and Kent v. Dulles sup-

port the presidential power to revoke Agee’s passport

on two separate grounds, either of which furnishes

sufficient grounds to revoke his passport. Zemel v.

Rusk, 381 U.S. 1 (1965) is analyzed first because it is

the most recent case, because it modifies Kent to some

extent, and because it supports the revocation of

Agee’s passport without any reliance on the affidavits

filed by the parties in this Court.

A. The Cuban Area Passport Restriction in Zemel.

Chief Justice Warren’s opinion in Zemel v. Rusk,

381 U.S. 1 (1965) followed Kent by seven years.

Zemel clearly distinguishes Kent from the kind of facts

we have here, and it also holds that passports to des-

ignated areas may be denied on national security and

foreign policy grounds. Even though it dealt with an

area limitation, it provides support for the position of

the Government when applying the same grounds to

the revocation of an individual’s passport. Zemel holds

that the Passport Act of 1926 authorized the President

to impose area restrictions on travel by United States

citizens to Cuba. It distinguished Kent v. Dulles on

the ground that Zemel was based on “national secu-

rity” and “foreign policy” considerations affecting all

citizens and was not based on an applicant’s political

beliefs or associations. 381 U.S. at 18, 16. The same

distinction exists here between Kent and Agee.

In distinguishing Kent v. Dulles, Chief Justice War-

ren noted that Kent involved a passport denial based

on the applicant’s “political beliefs or associations.” 381

37a

U.S. at 13. He referred to Kent and pointed out: “(ijn

finding that history [prior administrative practice] did

not support the position of the Secretary in that case,

we summarized that history ‘so far as material here’—

thai is, so far as material to passport refusals based on

the character of the particular applicant {Kent].” Id.

(Emphasis added) Then he added: “the Secretary [of

State in Zemel] has refused to validate appellant’s

passport not because of any characteristic peculiar to

appellant, but rather because of foreign policy con-

siderations affecting all citizens.” Jd. (Emphasis

added). Also, most importantly for this case, the

Zemel Court held that it was not restricted to relying

on pre-1926 adminsitrative practices:

Even if there had been no passport legislation

enacted since the 1926 Act, the post-1926 history

of executive imposition of area restrictions, as

well as the pre-1926 history, would be of relevance

to our construction of the Act. The interpretation

expressly placed on a statute by those charged

with its administration must be given weight by

courts faced with the task of construing the stat-

ute. Udall v. Tallman, 380 U.S. 1, 16-18; Nor-

weigian Nitrogen Co. v. United States, 288 U.S.

294, 315.

381 U.S. at 11 (Emphasis added) The Court then pro-

ceeded to uphold the Cuban area passport restriction.

In reaching its conclusion in Zemel, the Court also

placed strong reliance upon the Hostage Law, 22

U.S.C. § 1732, which has been unchanged as a United

States Law since 1868. Act of July 27, 1868, ch. 249,

§ 3, 15 Stat. 224, R.S. § 2001.

38a

It also cannot be forgotten that in the early days

of the Castro regime, United States citizens were

arrested and imprisoned without charges. We

think particularly in view of the President’s

statutory obligation to “use such means, not

amounting to acts of war, as he may think neces-

sary and proper” to secure the release of an

American citizen unjustly deprived of his liberty

by a foreign government,'* that the Secretary has

justifiably concluded that travel to Cuba by

American citizens might involve the Nation in

dangerous international incidents, and that the

Constitution does not require him to validate

passports for such travel.

16 R.S. § 2001, 22 U.S.C. § 1732 (1958 ed.),

provides:

“Whenever it is made known to the Presi-

dent that any citizen of the United States has

been unjustly deprived of his liberty by or

under the authority of any foreign govern-

ment, it shall be the duty of the President

forthwith to demand of that government the

reasons of such imprisonment; and if it ap-

pears to be wrongful and in violation of the

rights of American citizenship, the President

shall forthwith demand the release of such

citizen, and if the release so demanded is un-

reasonably delayed or refused, the President

shall use such means, not amounting to acts

of war, as he may think necessary and proper

to obtain or effectuate the release; and all the

facts and proceedings relative thereto shall as

soon as practicable be communicated by the

President to Congress.”

39a

381 U.S. at 15 (Emphasis added). Section 1732, as

applied in Zemel, thus supports the revocation of

Agee’s passport. When the facts of this case are taken

by their four corners it is obvious that the Secretary of

State, acting as the President’s lawful delegate, has

determined that the revocation of Agee’s passport is

one of the means “necessary and proper to... effec-

tuate the release” of the American hostages held cap-

tive in Iran. The Hostage Statute fits the present situ-

ation in Iran like a glove and, as in Zemel, supports

the Secretary’s denial (or revocation) of a passport.

The District Court recognized the Executive’s “ex-

traordinary authority to act” under § 1732 and stated

that “[i}f [Agee’s] activities are detrimental to the hos-

tages in Iran ... his passport may be cancelled .. .”

under § 1732. (App. 53) However, for some unex-

plained reason the court failed to recognize the strong

factual circumstances which bring § 1732 into play as

one of the statutes that justjfies the revocation.

The factual situation in the instant case furnishes

much stronger support for the application of § 1732

than the facts described and relied upon in Zemel.

United States citizens in Iran are presently under ar-

rest and imprisoned without charges. The-record be-

fore the District Court disclosed some possibility that

Agee might participate in a “Tribunal” that would

judge these American citizens. His participation may

or may not have been a realistic possibility. However,

it was a rational conclusion at the time, given the news

reports, Agee’s renegade character,!° his past ac-

©The Congress recognized in 1918 when it passed the Act re-

quiring citizens to have passports to leave or enter the United

40a

tivities and stated future intentions, and the absence

of any public denial that he might participate as repor-

tedly requested by the militants in Iran. The passport

revocation may have caused him to assert a change of

mind.

Section 1732 is broad. Congress authorized the

President to use “such means, not amounting to acts of

war, as he may think necessary and proper to obtain

or effectuate the release . . .” of United States citizens

who are unjustly deprived of their liberty by any

foreign government. The revocation of Agee’s passport

on national security and foreign relations ground is ob-

viously in pursuit of such objective and is amply sup-

ported by § 2lla, the cited regulation, and the co-

extensive authority conferred by § 1732.

The Zemel Court also noted “[t]hat the [Cuban

area] restriction [on passports] which is challenged in

this case is supported by the weightiest considerations

of national security.” 381 U.S. at 16 (Emphasis

added). Reference was made to the prior Cuban mis-

sile crisis and Castro’s holding of some Americans

without charges.1! While Iran is more distant than

States that nations in conflict with the United States “will

wherever possible employ renegade Americans... as her

agents instead of employing [their nationals] about whom suspi-

cion would easily be excited.” H.R. Rep. No. 485, 65th Cong.,

2d Sess. 2 (1918) on H.R. 10264 (Emphasis added). The same

situation continues to exist. United States v. Rosenberg, 200

F.2d 666 (2d Cir. 1952), sub nom. Rosenberg v. United States,

346 U.S. 273 (1953).

11As is apparent from the Zemel’s Petition for Rehearing in

the Supreme Court, p. 6-8, these facts were not in the Zemel

record. The Supreme Court in effect took judicial notice of

them.

4la

Cuba, the present Iranian crisis evokes many of the

same considerations on a more immediate basis. In

fact, the present forcible occupation of our Embassy in

Iran and the holding of our official staff as hostages are

more properly considered as an act of war than the

situations in the Cuban missile crisis and the prior ar-

rest without charges of Americans in Cuba.12 None of

our Embassy officials were seized or confined in Cuba.

The “hostage” situation relied on by the Court in

Zemel was at best minimal compared to the present

situation in Iran. All civilized nations for 2,500 years

have treated the persons of diplomatic envoys as in-

violable. Thus, the Zemel Court’s reliance on § 1782

and national security and foreign policy grounds, when

applied to the instant case, lead inevitably to the con-

clusion that the revocation of Agee’s passport is au-

thorized by the same considerations.

The disposition that Zemel makes of the challenge

to the delegation of legislative power is equally appli-

cable to Agee:

‘The use of force against the official staff of the United

States Diplomatic Mission to Iran and the seizure and occupa-

tion by force of the United States Embassy in Iran may be said

to be an act of war, but no state or condition of war exists with-

out such a declaration by the Congress. 10 M. Whiteman, Jnter-

national Law 1 (1968); VI G. Hackworth, /nternational Law

163 (1943). A contention with insurgents is not war, 2 H.

Lauterpacht, International Law (Oppenheim) 167 (6th Ed.

1944), though the instant situation may ¢reate doubt as to

whether the “contention” at the present time does not extend

beyond the insurgents. The present situation in Iran is very

similar to that which existed during the early stages of the so-

called Boxer Rebellion in China in 1900 before the use of force

and troops by the United States. II Encylopedia Britannica,

Micropaedia 210.

42a

Finally, appellant challenges the 1926 Act on

the ground that it does not contain sufficiently de-

finite standards for the formulation of travel con-

trols by the Executive. It is important to bear in

mind, in appraising this argument, that because of

the changeable and explosive nature of contempo-

rary international relations, and the fact that the

Executive is immediately privy to information

which cannot be swiftly presented to, evaluated

by, and acted upon by the legislature,

Congress—in giving the Executive authority over

matters of foreign affairs—must of necessity

paint with a brush broader than that it customar-

ily wields in domestic areas.

“Practically every volume of the United

States Statutes contains one or more acts or

joint resolutions of Congress authorizing ac-

tion by the President in respect of subjects

affecting foreign relations, which either leave

the exercise of the power to his unrestricted

judgment, or provide a standard far more

general than that which has always been con-

sidered requisite with regard to domestic af-

fairs.” United States v. Curtiss-Wright Corp.,

299 U.S. 304, 324.

This does not mean that simply because a statute

deals with foreign relations, it can grant the

Executive totally unrestricted freedom of choice.

However, the 1926 Act contains no such grant.

We have held, Kent v. Dulles, supra, and reaffirm

today, that the 1926 Act must take its content

from history: it authorizes only those passport

refusals and restrictions “which it could fairly be

argued were adopted by Congress in light of prior

administrative practice.” Kent v. Dulles, supra,

at 128. So limited, the Act does not constitute an

invalid delegation.

43a

381 U.S. at 17-18 (Emphasis added). In essence, the

Zemel Court added another broad ground to the list in

Kent, discussed infra, that the Executive may rely

upon to withhold or revoke passports and the prior

administrative practice of the Secretary supports the

revocation of Agee’s passport.

B. History of Administrative Denial of Passport

Applications.

Zemel holds that the interpretation of the Act by

the Executive charged with its administration before

its 1926 reenactment, and subsequent thereto, may

both be considered in determining whether Congress

will be deemed to have recognized and consentéed to

the exercise of particular authority. This calls for a re-

view of past passport practices to determine “which it

could fairly be argued were adopted by Congress in

light of prior administrative [executive] practice.”

Zemel v. Rusk, 381 U.S. at 17-18. Interim. declara-

tions by Congress are also relevant to this review.

In times of emergency Congress has recognized that

certain factors should be taken into consideration in

the issuance of passports, i.e., “public. safety ”;13 “the

interest of the United States”;14 “if [the President]

deems that the interests of the United States so re-

quire”;*5 “{promote] ... the national defense”; 16

“Animical to the best interests of the United States”; 17

18 Act of May 22, 1918, ch. 81, 40 Stat. 559.

14 Act of June 21, 1941, ch. 210, 55 Stat. 253.

18S. Rep. No. 444, 77th Cong., Ist Sess. 1 (1941).

16] q.

177d.

44a

“needed to insure the national security.” !* Following

these declarations, Congress in 1978 continued the

passport requirement ?® because the “public safety” so

required.2° The traditional needs of national security

had previously been considered in connection with the

emergencies legislation.24 The 1978 Act continued the

emergencies passport requirements into the so-called

peacetime future.

This brings up the passport practices before and

after the 1926 reenactment of § 21la. Even prior to

the 1856 Passport Act the Executive issued passports

on a discretionary basis.?* During the Civil War

passports were required by an order of the Secretary

of State and were denied to those subject to military

service without a bond.?* Passports were also denied

to citizens “on errands hostile and injurious to the

peace of the country and dangerous to the Union.” 4

18H.R.J.Res. 423, 82d Cong., 2d Sess., 66 Stat. 54, 57 (1952);

S.J.Res. 156, 82d Cong., 2d Sess., 66 Stat. 96 (1952); H.J.Res.

481, 82d Cong., 2d Sess., 66 Stat. 137 (1952); H.J. Res. 477, 82d

Cong., 2d Sess., 66 Stat. 330, 333 (1952).

198 U.S.C. § 1185 (b), 92 Stat. 993 (1978).

20S. Rep. No. 1168, 94th Cong., 2d Sess. 32-33 (1976).

21S. Rep. No. 549, 93rd Cong., Ist Sess. 83-84 (1973).

22 See, e.g., 2 C. Hyde, International Law Chiefly as Inter-

preted and Applied by the United States 1195 (1945); 3 G.

Hackworth, Digest of International Law 498 (1942); 3 J. Moore,

Digest of International Law 919-23 (1906).

23G. Hunt, The American Passport 49-54 (1898).

243 Moore, supra note 22, at 920. Mr. Seward, Secretary of

State in 1861, prescribed this class of people, and informed his

Department that it was “strictly enjoined to grant no passport

whatever to any person of whose loyalty to the Union you have

not the most complete and satisfactory evidence.” Id.

45a

While national security is more vital in wartime, it is

always a matter of major governmental concern.

The Attorney General in 1901 ruled that a passport

may be denied in the “discretion” of the Secretary of

State, for “an avowed anarchist, for instance.”25 In

1903 President Roosevelt promulgated passport rules

which authorized the rejection of applications which

would “further an unlawful or improper purpose.” 26 In

1906 the Solicitor of the Department of State advised

that a passport could be denied to a citizen who had

gone to China and became notorious as a promoter of

the gambling and prostitution because he “is likely to

embarrass the United States.”27 In 1907 the Depart-

ment approved a decision of the Consul General re-

fusing to issue a passport to one engaged in

blackmailing and “disturbing, or endeavoring to dis-

turb, the relations of this country with the representa-

tives of foreign countries.” 28 This is a perfect descrip-

tion of Agee’s presently stated intention. The Depart-

ment also asserted the right to deny passports “on

high grounds of public policy” and if there “is reason to

believe that he will put the passports to an improper

or unlawful use.” 29

In 1920 President Wilson’s passport rules authorized

the Secretary “to refuse [passports] in his discretion”

2523 Op. Atty. Gen. 509, 511 (1901).

263 Moore, supra note 22, at 902; Rules Governing the

Granting and Issuing of Passports in the United States, Sep-

tember 12, 1903.

273 Hackworth, supra note 22, at 498-99.

281907 Foreign Relations of the United States, Part 2, at

1076, 1080, 1082-83.

"16.

46a

to those who were “within a dangerous class.” °®° Fol-

lowing the enactment of the 1926 Act, President Coo-

lidge issued new passport rules in 1928. These re-

quired applicants to state the object of their trip to

each country and furnish proof thereof, and authorized

the Secretary to deny passports in his discretion.**

President Hoover’s Executive Order was identical,*?

and President Franklin D. Roosevelt’s order was sub-

stantially the same.3* The Passport Division Office In-

structions of July 30, 19344 set forth examples of per-

sons who could be denied passports under the discre-

tionary power of the Secretary. These included per-

sons guilty of disloyal acts, persons suspected of an in-

tention to commit a crime or otherwise to bring grave

discredit on this country, evaders of justice, and

“those who wish to go abroad to take part in the politi-

eal or military affairs of foreign countries in ways

which would be contrary to the policy or inimical to the

welfare of the United States.” The 1957 Senate Hear-

ings at 74 set forth two examples of passports denied

on the latter ground.

The 1930’s was also the period when a number of

area restrictions were imposed on the issuance of

passports. These included Spain (1936)%5, Ethiopia

30 Hearing on Right to Travel, Part 2, Subcommittee on Con-

stitutional Rights, Senate Judiciary Committee, 85th Cong., Ist

Sess. 343-50 (1957) (hereafter 1957 Senate Hearings).

31 Exec. Order No. 4800 (1928).

32Exec. Order No. 5860 (1932).

33Exec. Order No. 7856 (1938), 3 Fed. Reg. 681.

34Passport Division Office Instructions of July 30, 1937

(Abstract of Passport Laws and Precedents, Code No. 7.22).

353 Hackworth, supra note 22, at 533.

47a

(1935)%*, China (1937)37, Europe (1989)%8, and after

World War II, Hungary, Czechoslovakia, Albania,

Bulgaria, Communist China, Rumania and the Soviet

Union.*®

The rules issued under the 1941 Act recognized the

Secretary’s discretion and called for consideration of

whether the use of the passport would be “prejudicial

to the interests of the United States.”4° In 1947, in-

structions to consular officers called for passport appli-

cations to be referred to the Department wherever the

applicant’s political activities were “of a character

which tends to be inimical to the best interest of the

United States or detrimental to international harmony

and understanding.” *! From 1948 to 1955 the Depart-

ment notified all “Bearers of Passports” as follows:

Engaging in political affairs in foreign countries

The Department has always considered that it is

improper for American citizens to interfere in the

political affairs of foreign countries and in general

has taken such action as ground for refusing

passport and registration facilities to them or ex-

tending protection to them.#?

(Emphasis added)

867d. at 531.

377d. at 582.

884 Fed. Reg. 3892 (1939) (unless the applicant could prove

the “imperitiveness” of his proposed travel).

$933 Dept. of State Bull. 777 (Nov. 14, 1955).

4°96 Fed. Reg. 6069-70, 6349, 5821 (1941). The 1942 amend-

ments made no change. 7 Fed. Reg. 2590, 3708 (1942).

“1 Foreign Service Serial No. 747 (August 7, 1947) at 5.

“2State Department Publication, “Information for Bearers of

Passports,” 1948-1955.

48a

Foreign policy considerations were also made a basis

for denying passports in the regulation issued in 1952.

This authorized such action when citizens were en-

gaged in activities which would violate laws designed

to protect the security of the United States “[iJn order

to promote the national interest by assuring that the

conduct of foreign relations shall be free from unlawful

interference.” ** The 1956 amendment of this regula-

tion provided that passports should be denied for ac-

tivities “prejudicial to the orderly conduct of foreign

relations; or ... prejudicial to the interests of the

United States.”44 In 1968 this standard was restated

to authorize passport denial for an applicant whose ac-

tivities abroad are causing or are likely to cause seri-

ous damage to the national security or foreign policy of

the United States.45 This regulation has not been

changed in the past 12 years, and constitutes the pres-

ent standard.

The passport practices of the State Department

through the years have been fully communicated to

Congress. The 150 year precedent of denying

passports to those who could interfere with the Secre-

tary carrying out our foreign policy was reported to

Congress in 1956, and six examples in 1955 were cited

where passports were refused to “participants in

political affairs abroad whose activities were deemed

harmful to good relations.” 4* These six refusals were

4517 Fed. Reg. 8013 (1952).

4421 Fed. Reg. 336 (1956).

4522 C.F.R. § 51.70 (b) (4).

46Hearings on H.R. 9991, Subcommittee No. 1, House

Judiciary Committee, 84th Cong., 2d Sess. 12-13 (1956).

49a

called to the Senate’s attention in 1957 along with sev-

eral current denials for travel to certain areas which

“would be prejudicial to the foreign policy of the

United States. . .”47 During the same hearings the

State Department reported that 166 passports had

been refused for “Security Reasons” during the 55

month period from February 5, 1951 to August 31,

1952 and from January 1, 1954 to December 31, 1956.48

The Senate subcommittee was fully informed of the

Department regulations and interpretations, the ex-

tent and exercise of departmental discretion*®, and

that the regulations merely confirmed Department

practice “as far back as you can trace it” of refusing

passports to persons who were acting “contrary to the

policy of the United States.”5° The Legislative Refer-

ence Service of the Library of Congress reported in

1957 that passports were denied to “those on missions

adverse to the national interests” and that the political

officers in the Department would determine whether

travel would be “harmful to the national interests.” 51

Following the 1958 decision in Kent v. Dulles, Con-

gress was advised that the Executive had traditionally

denied passports where their issuance would be “in-

imical to United States foreign relations.” 52 This prac-

“71957 Senate Hearings, supra note 22, at 73, 128-29.

487d. at 40.

491957 Senate Hearings, supra note 22, at 59, 66-68, 75, 101,

164-65, 180-81, 248-49, 266.

507d. at 60.

51 Hearings in S. Res. 49, Subcommittee on Constitutional

Rights, Senate Judiciary Committee, 85th Cong., lst Sess.

175-84 (1957).

52H.R. Rep. No. 2684, 85th Cong., 2d Sess, 2 (1958).

50a

tice continued after Kent5* and in 1960 a Congres-

sional Staff Report to the Senate Committee on Gov-

ernment Operations reported

that the authority to issue or withhold passports

has, by precedent and law, been vested in the

Secretary of State as a part of his responsibility to

protect American citizens traveling abroad, and

what he considered to be the best interests of the

Nation.*4

(Emphasis added)

Passports have also been denied where the citizen’s

acts were not illegal but were considered inimical to

the interests of the United States. Examples: Colonel

Hubert F. Julian (supplying arms to various coun-

tries),55 and Charles Luke McKissack and his assistant

(attorneys for Mrs. Sirhan).5¢ The Note, Passport

Refusals for Political Reasons: Constitutional Issues

and Judicial Review, 61 Yale 1 .J. 170 (1952) reported

several similar well known passport denials: Kamen (a

radiation physicist who had carelessly disclosed confi-

dential information to a Soviet vice-counsel, Jd. at

174-76); Isacson (American Labor Party member who

53 Hearings on H.R. 13740, House Committee on Foreign Af-

fairs, 85th Cong., 2d Sess. 32, 63 (1958); Hearings on S. 2770, S.

3998, S. 4110, S. 4137, Senate Committee on Foreign Relations,

85th Cong., 2d Sess. 22-23, 25 (1958).

54Staff Report, Reorganization of the Passport Functions of

the Department of State, Senate Committee on Government

Operations, 86th Cong., 2d Sess. 13 (1960).

55 Developments in the Law, The National Security Interest

and Civil Liberties, 85 Harv. L. Rev. 1180, 1150 n.76 (1972).

56 Sirhan v. Rogers, No. 70-3965 (S.D.N.Y. Sept. 11, 1970);

No. 35364 (2d Cir., Oct. 5, 1970) (attempts to enjoin the revoca-

tion denied in both Courts).

5la

proposed to aid the Greek rebels, Jd. at 176); Robeson

(speaking and giving concerts abroad “not in interests

of the United States”, Jd. at 176-77); Lamont (left-

wing writer, travel “not . . . in the best interest of the

United States,” Jd. at 177); Charles E. Davis (spied

for Senator Joseph McCarthy on Communists and

United States diplomatic personnel “to the prejudice of

Switzerland,” Jd. at 178).

In analyzing prior administrative practice it is er-

roneous to restrict the inquiry solely to revocations

since 1968 (App. 50) when the regulation reached its

present form. That regulation merely codified the

Secretary’s long standing interpretation of his au-

thority under the statute since the date of its original

enactment in 1856. It is this consistent interpretation

of the Act over its entire life that constitutes the prior

administrative practice that must be considered. Con-

gress was fully aware of the Department’s denials of

passports on grounds of national security and foreign

policy, it never objected thereto, and it enacted the

present law in 1978 requiring passports with full

knowledge that the Department would follow its long

standing administrative practice applying and inter-

preting the relevant statutes and regulations.

Therefore, when Congress, with detailed knowledge

of the Department’s interpretation of its authority and

the statute, adopted the present statute in 1978, with-

out altering the existing statutes, it adopted and con-

firmed the authority of the Executive to continue its

prior administrative practice. Chemehuevi Tribe of

Indians v. FPC, 420 U.S. 395, 410 (1975); NLRB v.

Bell Aerospace Co., 416 U.S. 267, 275 (1974); Zemel v.

52a

Rusk, 381 U.S. at 12, 18; Kent v. Duiles, 357 U.S.

125, 127.

In view of this history it was error for the District

Court to conclude that the Secretary, in denying

passports on national security and foreign policy con-

siderations through the years, has not followed “suffi-

ciently substantial and consistent administrative prac-

tice to warrant the implied approval of Congress.”

Zemel v. Rusk, 381 U.S. at 12. The denial of passports

to those who intended to cause serious damage to our

national security and foreign policy is the very minimal

basis that Congress would expect the Department to

follow. Congress has so indicated by its refusal since

1856 to make any change in the basic grant of author-

ity to the President. 22 U.S.C. § 21la. Prior adminis-

trative practice therefore under Zemel v. Rusk sup-

ports the revocation of Agee’s passport on national se-

curity and foreign policy grounds. Section 1782 is addi-

tional support for such revocation.

Finally, in view of Agee’s past activities and his ad-

missions here, two additional statutes add support to

the Secretary’s revocation of Agee’s passport on na-

tional security grounds. First, Congress recognized in

the statute establishing the Central Intelligence

Agency that it was “in the interest of national secu-

rity...” to “[protect] the intelligence sources and

method for unauthorized disclosure” and to maintain

“the security of foreign intelligence activities of the

United States”. 50 U.S.C. §§ 403(d)(3), 403g¢57 (Em-

57 Title 50 U.S.C. § 403 provides:

“(d) For the purpose of coordinating the intelligence ac-

tivities of the several Government departments and agen-

58a

phasis added). Therefore, revoking Agee’s passport in

an attempt to stop his disclosure of “intelligence

sources and methods,” id., is statutorily recognized as

being “in the interest of national security.”

That national security considerations were to be

considered in granting or denying passports also de-

rives some support from the Act of June 27, 1952,

which provided that the. Administrator of the Bureau

of Security and Consular Affairs of the Department of

State, which Bureau includes the Passport Office,

“shall have authority to maintain direct and continuous

liaison with the [FBI and the CIA] and with other

internal security officers of the Government for the

purpose of obtaining and exchanging information for

use in enforcing the provisions of this Chapter ®® in the

interest of the internal security of the United States.”

8 U.S.C. § 1105, (66 Stat. 174-175, 91 Stat. 847),

It thus appears that Zemel greatly expands Kent’s

illegal conduct grounds, see V, infra, and provides ad-

ditional authority for the revocation of passports on

cies in the interest of national security, it shall be the duty

of the [Central Intelligence] Agency, under the direction of

the National Security Council .. . (3) . . . That the Direc-

tor of Central Intelligence shall be responsible for pro-

tecting intelligence sources and methods from unau-

thorized disclosure . . .” (Emphasis added).

Section 403g provides:

“In the interests of the security of the foreign intelligence

activities of the United States and in order further to im-

plement the proviso of section 403(d)(8) of this title that

the Director of Central Intelligence shall be responsible for

protecting intelligence sources and methods from unau-

thorized disclosure.” (63 Stat. 211)

588 U.S.C. § 1185(b), requiring passports of citizens, is part

of the “Act” referred to. Cf. 66 Stat. 175, 190.

54a

national security and foreign policy grounds where

such action is consistent with historical administrative

practice.5® Revoking Agee’s passport, and thereby

hopefully halting the illegal and dangerous release of

intelligence sources and methods throughout the world

is clearly within the interests of national security.

Therefore, the Secretary’s action in the instant case

was authorized by Congress and was lawful.

KENT V. DULLES ANALYZED AND DISTINGUISHED

Agee contends that Kent v. Dulles, 357 U.S. 116

(1958), does not support revocation on national secu-

rity or foreign policy grounds. That case, however, is

not authority on such point because the Court never

discussed such grounds notwithstanding the argument

in its dissent, that such grounds were present.®° What

is of significance here is that Kent did recognize that

5922 U.S.C. § 1732 provides additional authority.

60The contention is made that the denial of passports in Kent

“to communist party members and sympathizers” “assuredly in-

volved foreign policy and national security considerations” the

same as the Cuban area ban. While Kent may have “involved”

some such “considerations,” the record was deficient in proof

that the issuance of passports without non-communist affidavits

would cause or be likely to cause serious damage to our na-

tional security or foreign policy. The ideological factors also

created additional constitutional overtones that could not be

surmounted. Kent involved denial of passports on ideological

grounds, weakly asserted. In contrast, Agee’s passport was re-

voked because of acts admittedly damaging to the national se-

curity; which he conceded were likely to continue. Also, in Kent

the government never had a hostage situation to bring § 1732

into play as the Court did in the Cuban situation, and as we

have here with our embassy hostages in Iran.

55a

passport revocation is authorized when the applicant

has engaged in conduct that is “illegal” or in “viola-

tion of the laws of the United States.” Id. at 127.

The record before the District Court indicates in-

stances of illegal conduct in violation of 18 U.S.C.

§ 793(d). This is sufficient under Kent to support the

passport revocation. In addition, the McMahon and

Agee affidavits before this Court indicate additional

illegal conduct of a very serious nature. This decision

does not rely on these additional violations but because

of their serious nature they are not overlooked and are

discussed in the Appendix in the event that his con-

duct receives further consideration. (App. 89-98) The

serious damage to our national security and foreign

policy which is present in the record before the Dis-

trict Court, and is conceded, also involves “illegal con-

duct.”

Kent was denied a passport by the Government, in

accordance with the then existing regulations, which

required an applicant to submit an affidavit stating

whether he was then or ever had been a communist.

When Kent refused to submit such an affidavit, his

passport application was denied and he brought a suc-

cessful suit for declaratory relief. The Supreme Court

upheld his claim and ruled that “freedom to travel is

. .. an important aspect of the citizen’s ‘liberty’”. 357

U.S. at 127.

The opinion stated that the power granted the

President by Congress did not extend to denying

passports for refusal to file such affidavits. In the

course of reaching that conclusion the Court denied

several areas in which Congress had authorized

56a

passports to be denied. First, naturally, was when

citizenship or allegiance did not exist.

Second, was [when] .. . the applicant was par-

ticipating in illegal conduct, trying to escape the

toils of the law, promoting passport frauds, or

otherwise engaging in conduct which would violate

the laws of the United States.

Id. at 127. The Court also stated that in the light of

prior administrative practices those two categories

were the only ones which it could fairly be argued

were adopted by Congress when Congress reenacted

the statute in 1926. The Court, however, did observe

that one can find in the records of the State Depart-

ment “rulings of subordinates covering a wider range

of activities than the two indicated.” Id. at 128. How-

ever, consideration need not be taken here of such

communist activities. The Court merely refused to

give the Secretary of State “unbridled discretion” to

grant or withhold a passport from a citizen for any

substantive reason he may choose. Jd. Withholding

passports on national security and foreign relations

grounds is not an exercise of “unbridled power.” After

explaining that the refusal to a non-communist af-

fidavit did not relate to citizenship or allegiance on the

one hand, or to criminal or unlawful conduct on the

other, the Court ordered the issuance of the passport.

Kent did not involve serious damage to the national

security of the foreign policy of the United States. The

Court said “[wle deal with beliefs, with associations,

with ideological matters.” Jd. at 130. Agee does not

present a case that deals with beliefs, associations or

ideological matters. Rather Agee’s acts cause serious

57a

damage to our national security and foreign policy, and

such conceded damage involves illegal conduct. Thus,

Kent v. Dulles is important for its recognition that

passports may be denied where the pe.son was par-

ticipating in illegal conduct which would violate the

laws of the United States. 257 U.S. at 127. This brings

to the fore an analysis of Agee’s acts that constitute

illegal conduct.

A. Illegal Conduct Under Kent v. Dulles as a Gounds

for Passport Revocation.

In this case Agee has conceded that his actions

“have caused serious damage to the national security

and foreign policy of the United States” and that “[his]

stated intention to continue such activities threatens

additional damage of the same kind.” (App. 18, 30)

From the facts that the court may consider under judi-

cial notice, Fed. R. Evid. 201(b), (c), (f), and the af-

fidavits filed in the District Court, it may also be con-

cluded that in causing “serious damage to the natiunal

security and foreign policy” Agee has been, and is,

“participating in illegal conduct ... which would vio-

late the laws of the United States”. 357 U.S. at 127.

He has also stated his intention “to continue such ac-

tivities” which, it will be demonstrated, violate our

laws.

In developing this point it should first be noted that

the case now before this Court is a de novo separate

judicial proceeding and not a direct appeal from an

administrative decision where the reviewing court is

limited strictly to the factual and legal considerations

upon which the administrative action was based. Cf.

Securities and Exchange Commission v. Chenery

58a

Corporation, 318 U.S. 80, 87 (1943). It is thus permis-

sible on this appeal to rely upon facts set out in the

uncontradicted affidavits of record in the District

Court, the concessions of appellant, the conclusions of

law and fact admitted by the parties in this proceed-

ing, and any fact of which judicial notice may be taken

because it is “not subject to reasonable dispute in that

it is either (1) generally known within the territorial

jurisdiction of the trial court or (2) capable of accurate

and ready determination by resort to sources whose

accuracy cannot be reasonably questioned.” Fed. R.

Evid. 201(b), (c), (f).

Agee’s complaint alleges that “exhaustion of admin-

istrative remedies is not required .. .” (App. 4), and

he did not exhaust his administrative remedies. He

thus avoided cross-examination, but also lost whatever

advantage might accrue to him from this Court being

limited to the administrative record. While a bare

bones decision can be rendered on the limited facts in

this record, the case would have better presented the

issues if the Department hearing had been held, or if

the trial court had held an evidentiary hearing, or if

the Government had taken Agee’s deposition, because

“the facts as viewed by the administrator’s expert eye

may provide guidance to a court in reaching constitu-

tional determinations. . . .” Plano v. Baker, 504 F.2d

595, 599 (2d Cir. 1974). Cf. Robeson v. Dulles, supra

note 4. His deposition might also have provided fur-

ther illuminating facts as to his conduct and intentions.

However, the record is sufficient to support the revo-

eation of his passport for the “illegal conduct” which is

invoived in his past disclosure of secret CIA informa-

tion in violation of the applicabie criminal statute.

59a

The most striking example of Agee’s illegal conduct

is seen under the Wilful Communication of Defense

Information statute. 18 U.S.C. § 793(d). This statute

provides:

“Whoever, lawfully having possession of ... in-

formation relating to the national defense which

information the possessor has reason to believe

could be used to the injury of the United States or

to the advantage of any foreign nation, willfully

communicates, delivers, transmits, or causes to be

communicated .. . [etc.] . . . the same to any per-

son not entitled to receive it . . . shall be fined. . .

or imprisoned. . .”®

The record indicates that Agee, by his disclosures

throughout the world of the identity of undercover

CIA agents, and CIA sources and methods, 50 U.S.C.

§ 403(d)(3), supra, has clearly violated 18 U.S.C.

§ 793(d). Such disclosure of the identities of the

agents, or CIA sources and methods, in each foreign

country would support a separate indictment. The Dis-

trict Court could have concluded from the record that

Agee committed such offense, thus justifying revoca-

6118 U.S.C. § 793(d) provides:

(d) Whoever, lawfully having possession of . . . informa-

tion relating to the national defense which information the

possessor has reason to believe could be used to the injury

of the United States or to the advantage of any foreign

nation, willfully communicates, delivers, transmits or

causes to be communicated, delivered, or transmitted or

attempts to communicate, deliver, transmit or cause to be

communicated, delivered or transmitted the same to any

person not entitled to receive it, or willfully retains the

same and fails to deliver it on demand to the officer or em-

ployee of the United States entitled to receive it . . . [s}hall

be fined . . . or imprisoned . . . or both. (64 Stat. 1003).

60a

tion of his passport under Kent. A draft indictment is

set forth in the margin. ®?

B. The Relationship of the Passport Regulation to

Illegal Conduct.

The District Court remarked that: “If Agee is in-

dicted for any violation of law, his passport may be

cancelled”. (App. 58) Agee argues that any criminal

conduct cannot support the revocation of his passport

on national security and foreign policy considerations

unless they comply with a separate Passport Regula-

tion which authorizes revocation for crimes in certain

stages of prosecution. The regulation referred to pro-

vides that passports shall not be issued, except for di-

rect return to the United States, where there is an

82Transmitting Injurious Defense Information, 18 U.S.C.

§ 793(d)

The Grand Jury charges:

That Philip Agee, a former intelligence agent of the Cen-

tral Intelligence Agency of the United States (hereinafter

CIA), having lawful possession of information relating to

the national defense of the United States, to wit, informa-

tion identifying __. and __ and ___ and as intelligence

agents of the CIA assigned to (Nation), which information

relates to and is an integral part of the United States’ de-

fense and which the said Agee had reason to believe could

be used to the injury of the United States and to the ad-

vantage of a foreign nation, did, on or about the day of

, 19 , at a public press conference in the city of __,

(Nation), wilfully communicate, deliver and transmit and

cause to be communicated, delivered and transmitted, and

attempt to communicate, deliver and transmit and attempt

to cause to be communicated, delivered and transmitted

the aforesaid information relating to the national defense of

the United States to the Government of __, in violation of

18 U.S.C. § 79%(d).

6la

outstanding Federal warrant of arrest for a felony,

where parole or probation conditions would be violated

or the applicant has been committed to a mental in-

stitution, where extradition is sought from a foreign

country, or where a subpoena to the passport applicant

involves a Federal prosecution or a grand jury investi-

gation. 22 C.F.R. § 51.70(a)(1) to (5). The underlying

theory of Agee’s contention with respect to this regu-

lation is that it exhausts the circumstances under

which illegal conduct may constitute grounds for de-

nying passports. However, such regulation merely

provides several specific grounds for denying

passports and under Kent v. Dulles, 357 U.S. at 127,

does not foreclose denying passports for citizens who

are “otherwise engaging in conduct which would vio-

late the laws of the United States.” Jd.

6322 C.F.R. § 51.70(a)(1) to (5) provides:

(a) A passport except for direct return to the United

States, shall not be issued in any case in which:

(1) The applicant is the subject of an outstanding Fed-

eral warramt of arrest for a felony, including a warrant

issued under the Federal Fugitive Felon Act (18 U.S.C.

1073); or

(2) The applicant is subject to a court order, or condi-

tions of parole, or conditions of probation forbidding his

departure from the United States; or

(8) The applicant, is subject to a court order commit-

ting him to a mental institution.

(4) The applicant is the subject of a request for ex-

tradition or provisional arrest for extradition which has

been presented to the government of a foreign country.

(5) The applicant is the subject of a subpoena issued

pursuant to section 1783 of Title 28, United States Code,

in a matter involving Federal prosecution for, or grand

jury investigation of, a felony.

62a

Kent describes those “trying to escape the toils of

the law” only as one group who might be denied

passports. The enumeration of circumstances in sub-

sections (a)(1) to (5) all involve persons that may be

characterized as being in that group. The process of

the courts has proceeded further with respect to those

covered by subsections (a)(1) to (5), but that enumera-

tion is by no means exclusive and Kent recognizes that

just “participating in illegal conduct” may support a

passport denial. Jd. It is thus clear that illegal conduct

need not be formally processed to the stage of indict-

ment, arrest warrant, subpoena, extradition or court

order to constitute grounds for denial of a passport.

Since criminal conduct involving “national security”

or “foreign relations considerations” constitutes “il-

legal conduct” and “{violations of] the laws of the

United States,” Kent recognizes that such conduct

may serve as grounds for denying passports even

though actual formal criminal charges have not been

laid or are not in the process of being prosecuted in

some formal manner. The Government need not pro-

ceed against every law violator by formal means in

order to prove in some separate proceeding that his

conduct was illegal. Prosecution of offenders is de-

clined in many instances where laws are violated, as in

the case of grants of immunity. It would be absurd to

hold that because an admitted criminal was given

prosecutorial immunity to act as a witness in securing

the conviction of other greater criminals, the Govern-

ment was thereby foreclosed from denying him a

passport by proving in a separate passport proceeding

that he had violated the United States criminal laws as

63a

conceded by his own testimony. Declining prosecution

because it would involve the disclosure of informants

or classified matter is another example. Also, law vio-

lators are frequently permitted to continue without

prosecution for a considerable period of time because

their surveillance produces evidence of other criminal

violations, such as continuing espionage involving

others.

The present factual situation is one where the failure

of the Government to proceed against a wrongdoer on

criminal grounds does not preclude its ability to use

civil and other remedies. See United States v. Kearns,

595 F.2d 729, 732 (D.C. Cir. 1978) (civil prosecution of

officer of Export-Import Branch for breach of fiduciary

duty).

The regulation authorizing the refusal of passport

applications where the national’s activities abroad are

causing or are likely to cause serious damage to the

national security or the foreign policy of the United

States, provides a non-criminal basis for denying

passports. The lynchpin to this entire discussion is that

Agee’s clearly illegal conduct also damaged the na-

tional security. Thus, the passport revocation was

legal under Kent, and under § 51.70.

This analysis likewise disposes of the contention that

there is some bar to revoking Agee’s passport because

the Attorney General at some earlier date allegedly

stated that the Department of Justice did not intend to

bring formal criminal charges against him.

64a

VI.

THE PRESENT STANDARD FOR THE ISSUANCE OF

PASSPORTS UNDER THE STATUTE REQUIRING

PASSPORTS

Generally throughout the history of the United

States citizens have not been required to have

passports to enter and leave the country. However,

there have been several exceptions. First, an 1815

enactment during the War of 1812 required passports.

Act of February 4, 1815, ch. 31, § 11, 3 Stat. 199. Sec-

ond, during the Civil War passports were required by

order of the Secretary of State. The third exception

occurred during World War I when Presidential Proc-

lamation No. 1473 (40 Stat. 1829), under the Act of

May 22, 1918, 40 Stat. 559, made it unlawful to leave

or enter the United States without a valid passport.

This later Act was effective only in wartime but it was

amended in 1941 so it could be applied prior to our

entry in World War II. Act of June 21, 1941, ch. 219,

55 Stat. 252-53. See the President’s Proclamation No.

2523 of November 14, 1941, 55 Stat. 1696. That emer-

gency continued until April 28, 1952 and was then ex-

tended until April 1, 1953 (66 Stat. 54, 57, 96, 137, 330,

333). Next, the Act of June 27, 1952, Pub. L. No. 414,

ch. 2, § 215 (b), 66 Stat. 190, authorized the President

by Proclamation to require citizens to have passports

for foreign travel. It was under this Act that citizens’

passports were subsequently required, which author-

ity was scheduled to expire on September 14, 1978.

Each of these instances in our nation’s history, when

passports have been required of our citizens to leave

“ 65a

or enter the country, came into force to protect our

national security and foreign policy. It was in that cli-

mate that passports were to be issued, denied or re-

voked. Congress’ modus operandi when it required

passports during those periods is significant. In each of

those four instances it never explicitly provided any

standards in the Act that should be followed by the

Executive in issuing or refusing to issue passports.

Yet, surely Congress implicitly intended that the

Executive would apply national security standards in

issuing and denying passports. Otherwise, if passports

were to be issued to all citizens willy-nilly, the object

in requiring passports would be practically meaning-

less. Thus, the fact that Congress did not specifically

provide standards for revocation in the statute re-

quiring passports indicates that Congress recognized

the Executive as possessing such power without a

more specific Congressional delegation.

All this is relevant to the present situation because

again in 1978, Congress in the troubled world situation

then existing, again provided by amendment to the

1952 Act, supra, that passports were required for all

citizens leaving or entering the United States:

“(b) Except as otherwise provided by the Presi-

dent and subject to such limitations and excep-

tions as the President may authorize and pre-

scribe, it shall be unlawful for any citizen of the

United States to depart from or enter, or attempt

to depart from or enter, the United States unless

he bears a valid’ passport.”

8 U.S.C. § 1185 (b), Act of October 7, 1978, Pub. L.

No. 95-426, 92 Stat. 998. The Conference Committee

Report on the bill states that the above enactment

~ 66a

made permanent the authority of the President to re-

quire American citizens to bear valid passports when

entering or leaving the United States and preserved

the authority that had previously been exercised on an

“emergency basis” from otherwise lapsing in Sep-

tember, 1978.%

This whole case turns on the Congressional intent

which is indicated by the enactment of this 1978 stat-

ute because that is the present law. Much of the dis-

cussion of the parties as to the intent of earlier Con-

gresses and the effect of earlier court decisions be-

comes passe because of this latest enactment. The in-

tent of Congress in the present law is expressed in the

Senate Committee Report on the bill: |

The committee recognizes clearly that the

passport authority should not be restricted in any

way which would limit the President’s ability to

control the departure of U.S. citizens to foreign

countries when such travel is inconsistent with a

greater government interest, such as preventing a

citizen who is seeking to avoid the judicial proc-

esses of the United States. Nor would the commit-

tee wish to limit the President’s ability to deter

* U.S. citizens from entering countries with which

the United States is at war or regions where there

are occurring hostilities which relate to American

foreign policy interests.

S. Rep. No. 842, 95th Cong., 2d Sess. 14 (1978) (Em-

phasis added). It is obvious that Agee is interested in

travelling to countries where hostilities are occurring

which directly relate to American foreign policy inter-

64Conference Report on H.R. 12598, H.R. Rep. No. 1535,

95th Cong., 2d Sess. 44 (1978).

67a

ests. In addition, a passport may be denied if Agee’s

right to travel is inconsistent with “a greater govern-

ment interest.” When that standard is applied the an-

swer is also obvious. The authorization of Agee to

travel is clearly inconsistent with, and is outweighed

by, the greater government interest of protecting our

national security and foreign policy from the serious

damage that Agee concedes he intends and which the

record indicates he causes. (App. 36-37) Our foreign

policy cannot stand much further damage, particularly

since Agee is presently directing his attention in Iran

and the near East where the vital interests of our na-

tion are most seriously hazarded.

It should also be noted that the 1978 Act delegates

legislative authority over the issuance of passports es-

sentially on the same basis as § 211a, i.e., the same

degree of discretion. The two statutes are in pari

materia—they both authorize the President to prom-

ulgate passport regulations—and are to be read to-

gether. Thus, the deference due the long standing ad-

ministrative construction of the President’s power

under § 21la applies to the same delegation in § 1185

(b). The fact that Congress followed the same pattern

as § 21la, and gave no indication of its dissatisfaction

with the extent of the authority exercised by the

President under that section, enhances the conclusion

that Congress adopted the prior administrative prac-

tice and intended to authorize the Secretary to con-

tinue the same practices. Chemehuevi Tribe of In-

dians v. FPC, 420 U.S. 395, 410 (1975); NLRB v. Bell

Aerospace Co., 416 U.S. 267, 274-75 (1974); Zemel v.

Rusk, 381 U.S. 1, 18 (1965); Kent v. Dulles, 357 U.S.

116, 125, 128 (1958)

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