Philip Agee v. Edmund S. Muskie, Secretary of State

MacKINNON, WALD, and Before ROBB Judges. Circuit by the Court filed Circuit for Opinion Judge ROBB. Judge by filed Circuit

Dissenting opinion MacKINNON. Judge:

ROBB, Circuit Agee challenges reg- Philip In this case De- the United relied on States ulation passport. to revoke his partment of State Court, de- F.Supp. District lack of invalid for regulation clared the restored congressional authorization We affirm. passport. Agee, States Appellee Philip a United the Cen- employee citizen and a former Agency (CIA), presently Intelligence tral Agee Germany. West Hamburg, resides in leading is a critic of clandestine CIA’s operations throughout the world. He has attacking spoken extensively written efforts, pur- intelligence American of certain portedly revealed the identities was issued a agents. Agee undercover CIA Z3007741, on passport, No. States with an date of expiration March the United March State, aware States believing that perhaps activities significance special because they took on crisis1 the recent unrest Iranian countries, his moved to revoke other Islamic passport. Hertz, Justice, Atty., Michael F. Dept, of 23, 1979 December the United States On C., Daniel,

Washington, D. with Alice whom Hamburg Consul General delivered Gen., Ruff, Asst. Charles F. U. Atty. C. S. Agee from the Department a letter of State Schaitman, Leonard Atty., Mark H. Gallant him that his was immedi- notifying passport Letter, N. Douglas Attys., Dept, surrendered. ately revoked and should be Justice, Owen, B. Dept, and Roberts of 22 The letter invoked State, C., Washington, D. brief (1979). 22 51.70(b)(4) 51.71(a) & C.F.R. §§ appellant. (1979) 51.70(b)(4) provides: C.F.R. § Wulf, City, Melvin L. New case in York A refused Sims, appellee. Charles S. which: government,

1. An article in New its The Revolution- York Post on December ed to Iran Council, reported Agee ary any representative thereof would be invited to ” (J.A. 98), visit Iran and serve on an but of this factu- “international tribu- resolution by Ayatollah pass dispute nal” See created Khomeini is irrelevant our decision. al judgment prisoners on the held the American note 3 infra. Embassy being in Tehran. denied “invit- hearing violated his Fifth the na- Amendment determines right procedural process; due that the causing tional’s activities abroad are right of his violated his likely to cause serious revocation liberty protected or the to travel —a interest policy Amendment; (5) that the Fifth punish, passport was in order to him revoked 51.71(a) (1979) 22 C.F.R. states: government of suppress and his criticism revoked, passport may A restricted the policy in violation of First Amendment. limited where: proceedings before the District Court on The national would not be to entitled 3, 1980, counsel, January of a new passport issuance under 51.70 § attacking Secretary’s of purposes au- adopt apply to 51.- thority and C.F.R. § According to Department the State letter 70(b)(4), charges “the conceded the truth of The Department’s predicated action is Agee.” are made in the letter to they upon a determination made the Secre- 16). (Tr. January On 1980 the case tary provisions under of Section 51.- orally argued was to District Court on 70(b)(4) that activities your abroad are summary judgment. cross-motions for causing or likely to cause serious By and Memorandum Order dated Janu- damage to the national or the granted ary 1980 the District Court of policy the United States. The summary judgment Agee to and ordered Secretary’s reasons for the determination passport. the restoration The Dis- of his are, summary, as follows: Since the Secretary trict Court concluded that “[t]he early 1970’s your it has been stated inten- of power pass- to revoke or limit a State’s tion to a campaign conduct continuous to port Congress flows from not from the disrupt intelligence operations of the power greater President” and no is “[h]is United States. In carrying out that cam- Congress than may delegate choose to paign you have travelled in various coun- Accordingly him.” the court held that 22 Mexico, others, tries (including, among 51.70(b)(4) C.F.R. is invalid because “the § Denmark, Jamaica, Kingdom, the United Secretary’s promulgation challenged of the Cuba, Germany), and your and activities regulation [express implied] was without in those countries have caused serious Congress.” authorization from January On damage to the and for- Secretary 1980 the of State filed a no- eign policy of the United States. Your tice appeal of from the District Court’s stated intention continue such activi- decision, February Orders dated ties threatens additional of the granted 1980 this court the Secre- same kind. tary’s stay motion for pending appeal. (J.A. 13). The letter also informed of right review, his to administrative As promulgate and enforce of subsequently State 51.70(b)(4), of- 22 Secretary C.F.R. § hearing fered him a expedited an basis. Passport State relies on Act Agee rejected however, option, and on (1976), U.S.C. 211a which at the time the Yance, December Cyrus he sued regulation provided adopted was in 1968 State, who was Secretary then in the that: District The complaint sought Court. de- Secretary grant may of State claratory and injunctive relief. passports, issue passports and cause to be

Agee’s complaint challenged granted, issued, revoca- and verified in grounds: tion his (1) five by diplomatic representatives countries 51.70(b)(4) States, C.F.R. has not been the United and by such consul Congress authorized by generals, consuls, and is therefore in- or vice consuls when in valid; (2) that 22 51.70(b)(4) C.F.R. charge, Secretary as the of State overbroad; impermissibly vague designate the chief or other exec- revocation of passport prior utive officer of the possessions insular difficulty power is that while the States, under such rules as the United is- Secretary of State over the designate prescribe shall President in broad expressed passports suance for and on behalf issue, terms, apparently long exercised grant, it was persons no other shall here, narrowly. far as material quite So verify passports.2 such generally passports cases of refusal of 78 S.Ct. In Kent First, questions categories. into two fell (1958), L.Ed.2d appli- pertinent citizenship applica two passport had denied State allegiance and his cant regulation promulgated pursuant tions by the had to be resolved Secre- regula 211a. The reliance on U.S.C. § command tary, for the tion the issuance of prohibited granted or that “No shall be Party or to members of the Communist persons other to or verified issued persons “engage who activities citi- owing allegiance, whether than those or “are the Communist movement” support not, 32 to zens or the United States.” engage in abroad to activities going Second, was 22 U.S.C. 212. Stat. for will the Communist movement advance was question applicant whether the the knowingly wilfully of ad the purpose, conduct, trying to participating illegal in n.1, vancing that movement.” Id. at 117-18 law, promoting the toils of the escape Supreme 78 at 1114 n.l. The Court S.Ct. frauds, engaging or passport otherwise right part to a of held that travel “[t]he would the laws of conduct which violate the be ‘liberty’ the of which citizen cannot the United States. deprived process without due of law under Thus, at Id. 78 1119. the at S.Ct. Amendment,” and, therefore, the Fifth “[i]f Court, observing that the State regulated, be ‘liberty’ that is to be it must rulings concerning Communists were “scat- pursuant of law-making functions pat- one consistently tered” and “not of the Congress.” Id. at 78 at S.Ct. tern”, regulation concluded that em- the Further, the stated that 1120. Court passports to members and ployed deny to narrowly delegated would “construe all Party the lacked supporters of Communist powers right or to that curtail dilute [the congressional authorization and was there- 129, 78 at 1120. The Id. at S.Ct. travel].” 128-30, at fore invalid. Id. at 78 S.Ct. Congress that the give Court held did not 1119-1120. of “unbridled discretion to Secretary State Rusk, a grant passport or withhold from a citizen v. 85 In Zemel S.Ct. choose”, 1271, (1965), Supreme for may substantive reason he 14 L.Ed.2d 179 the any refusing only grounds validity that the for a the of an area Court considered argued Secretary it could of passport fairly imposed by “which travel ban Congress Unit- adopted by light prohibit by were State to travel all Cuba practice” administrative to ed The reasoned were citizens. Court States “relate[d] surely or 22 “is citizenship allegiance language or on the one hand of U.S.C. 211a restrictions, enough criminal or unlawful conduct on the oth to authorize area broad indicating 127-128, legislative history er.” Id. at 78 at 1119. and there is no S.Ct. explained that: an from Court intent to exclude such restrictions By (August Executive Section 211a was amended in 1978 Order No. 11295 following language: 1966), Fed.Reg. Secretary addition of the 31 “designated empowered exer- State was law, passport authorized Unless cise, ratification, approval, or other without the designated not be as restricted for travel to President, authority conferred any country action of for than a coun- use other war, upon try the President the first section with which the States is at (22 desig- July 211a), progress, Act U.S.C. where armed hostilities are in danger public prescribe for behalf of the is imminent nate and and on where there safety granting, physical governing States rules is- health or the of United United suing, verifying passports.” travellers. 1978). (Supp. 22 U.S.C. 211a II 13,3 Id. Id. at affecting all citizens.” grant at S.Ct. authority.” Noting area

at 1276. restrictions at 1279. before imposed on occasions both numerous considered the issue This has also court Passport adopted and after Act congressional authorization administra- 1926, the held the ban travel Court right of impacting tive on the inter- actions was valid because there was “an Cuba Rogers, In Woodward travel. practice sufficiently administrative substan- aff’d without (D.D.C.1972), F.Supp. conclu- tial consistent warrant opinion, F.2d U.S.App.D.C. implicitly approved sion that had (1973), summarily affirmed the this court Id. 8-12, it.” In addi- holding that there existed District Court’s that, tion, the Court stated unlike the denial implicit statutory au- explicit neither nor in Kent v. applications thority requiring allegiance an oath of Dulles, supra, “the has refused to of a prerequisite pass- to the issuance appellant’s passport validate not because of said: port. District Court any peculiar appellant characteristic [i. e., political associations], Allegiance may, an in- beliefs but rath- While Oath of er foreign policy deed, because of considerations have been on the included emphasizes “any 3. The dissent reference effectuate the release” of citizen “foreign policy Zemel v. tions”, unjustly deprived Rusk to considera- United States has been [who] Supreme liberty by as well as the Court’s state- of his or under the challenged ment that “the restriction which is foreign government.” The Zemel Court stated: supported by weightiest in this case is con- forgotten early It also cannot be in the perhaps siderations of national [as] days regime, of Castro the citi- pointed up by recalling best that the Cuban imprisoned zens were arrested without preceded missile crisis of October 1962 the fil- think, charges. particularly We in view of ing appellant’s complaint by of less than two statutory obligation the President’s 22 [under months." 381 U.S. at 85 at S.Ct. 1280. 1732], justifi- Secretary U.S.C. that § the has suggests up- The dissent that Zemel v. Rusk ably concluded that travel to Cuba Ameri- foreign policy holds on revocations might can citizens gerous involve the Nation in dan- security grounds and national in the broad incidents, international and that the however, view, sense of our those terms. In require Constitution does to not him validate that, only light Zemel v. Rusk holds in of the passports for such travel. history imposition extensive of executive of 381 U.S. at 85 at 1280. The dissent travel, area restrictions on such restrictions are argues 22 § that 1732 U.S.C. authorized the they congressional valid because have received Agee’s passport part revocation of as 8-12, authorization. See id. at 85 S.Ct. at President’s efforts to free Americans held the. opinion 1276-1278. The heart of the Zemel However, hostage revoking Agee’s in Iran. in Supreme the Court’s statement that “[t]his passport, Secretary rely did not Dulles, supra, case is therefore not Kent v. like and, fact, U.S.C. in no § made mention where we were unable to find ... an According of whatsoever the Iranian crisis. practice sufficiently administrative substantial Depart- the letter that received from the and Congress consistent warrant the conclusion that State, Secretary only ment of relied on 22 implicitly approved had it.” 381 U.S. 51.70(b)(4) 51.71(a) C.F.R. §§ & as for Although at tary’s at the Secre- action, his and the sole reasons offered assuredly 1961 ban on travel Cuba decision that: foreign policy security involved considerations, and national early your Since the 1970’s has been Secretary’s stated so too did the denial passports campaign party intention conduct a of sympathizers continuous to Communist members and disrupt intelligence operations pursuant 51.135, to 22 C.F.R. § carrying campaign which United States. you In was struck down in out that Kent v. Dulles. broadly (in- validating passport Rather than have travelled in various countries revo- others, policy Mexico, security cluding, among cations on and national grounds, merely Denmark, Jamaica, Cuba, Kingdom, v. Zemel Rusk one sustained and Ger- satisfying impo- means of many), your those concerns —the activities in those countries sition area restrictions —because it damage had been have caused serious to the national “implicitly approved” by Congress. security policy Supreme The dissent also States. Your notes the Court’s stated intention to continue opinion in citation the Zemel such activities of 22 threatens additional U.S.C. which directs the President to “use the same kind. means, war, (J.A. amounting Thus, 13). such not to acts of as 1732 is not U.S.C. § necessary proper germane he think to obtain or this case. provides technique greater assurance period, travel an extended application designated conditioned areas.” hindering was not travel recently until abroad passport, 389 F.2d at 946- U.S.App.D.C. upon possession of inter- periods of limited exception emergency. national hostilities or national clear, the case law makes summary, In Moreover, in- no evidence there has been must demonstrate Secretary of State open highly an establishing troduced has authorized C.F.R. denying applicants published practice delegation 51.70(b)(4) express an either swear to simply refusing to passports for consist- by “sufficiently substantial and these circum- or affirm the Oath. Under practice to warrant ent” administrative stances, extremely reluctant this Court Congress. finding implied approval re-enacting Congress, to conclude argues Passport indicated passport legislation 211a, interpreted Act of U.S.C. § to authorize the Secre- a clear intention power to consistently with the President’s re- to establish Oath tary State for- security national and conduct protect exer- prerequisite to the quirement as a affairs, the revocation of eign authorizes protect- constitutionally of a citizen’s cise 51.- passport under 22 C.F.R. Indeed, Supreme right to travel. ed Agee’s conces- 70(b)(4), especially light plain only has made it Court judgment summary of his purposes sion for permit will clearest of such evidence seriously damage that his activities motion silence to Congressional to consider Court foreign policy the national and the explicit and affirma- be a substitute for the Pass- United States. limiting the free legislative tive action expressly port Act does not authorize rights. important exercise of deny or revoke a Secretary to Rusk, Lynd In F.Supp. at 985. foreign policy grounds, (1967), this 389 F.2d 940 U.S.App.D.C. subsequent legislation relating to and no Secretary of could court held that the State au- explicitly delegated such passport for failure not withhold a citizen’s fact, and in 1966 the thority. .1958 not travel that he would give assurance sought unsuccessfully Department of State countries where a to those passport without and in power Congress,4 from precise this designated travel to be Secretary the had Secretary’s the dis- Congress 1978 limited foreign policy. inimical to the nation’s Rusk, cretion, supra, in Zemel v. upheld as Congress “[although that court reasoned To impose restrictions on travel.5 to area action intend- approved has administrative legislation to enact the be sure the failure limit travel to restricted areas ed to of and the sought State by the restricting passports, means of through the over area power of executive contraction to restrict- it has not made travel con- conclusively signify restrictions do not depri- possible a crime and added ed areas 51.- disapproval of 22 C.F.R. gressional § achieving liberty vation of as a sanction for 70(b)(4); they support do the but neither objective”; the court conclud- this and thus 211a Secretary’s construction of U.S.C. § inferring for ed that there was no “basis authority regu- to delegation of as broad given Secretary the the Congress Moreover, regard to the inherent late. deny legitimate, to constitutional- authority executive, of the the travel, foreign power is a affairs merely because that ly protected Hays, 4110, (1958), the refusal or Cong., would have sanctioned intro- 4. S. 85th 2d Sess. Secretary passport request if “the de- the revocation of a at the of duced Senator Green State, applicant’s abroad Secretary permitted termines that the activities the of would have causing likely passports persons to cause serious dam- or are whose activities denial of security foreign poli- age “seriously impair presence the national or the abroad would cy Both these bills died foreign of the United States.” conduct of the relations of brought security to a and were never vote. in committee would “be inimical to the of States” or Cong., 89th 2d the United States.” H.R. (1966), by Representative supra. Sess. introduced See note 5. security of “serious to the national in Baker v. Supreme emphasized Court United Carr, policy 82 S.Ct. or the of the States.” (1962), sup- Secretary only “it is details one error to L.Ed.2d twelve in which 22 every controversy years instance in C.F.R. pose that case 51.70(b)(4) pass- lies was to revoke a beyoiid judi- employed touches relations § port,6 only passport we reaffirm five refusals cognizance”, cial what Rusk, supra: passage two Lynd applications, court stated in Passport during three Act 1926 and Secretary us the cases before [I]n mid-1950’s, arguably which were even an press any does not claim he has foreign policy reasons.7 ac- authority, “inherent” contends his Regardless whether was aware Passport is valid tion under the Act examples adopt- of these scattered when it insignificant 1926. It is not Passport ed the Act in 1926 other travel opinion, Secretary, supporting Zemel authority. legislation inherent control rely did not an hardly such evidence amounts to a “sub- We think claim of inherent Supreme prac- fall afoul consistent would Court’s stantial and administrative Dulles, warning demonstrating implied congressional in Kent v. tice” challenged regulation. at 129 at L.Ed.2d for the authorization [78 1119] 1204] [2 (1958), that as to travel part freedom Until case arose. 22 C.F.R. 51.- “liberty” protected the Fifth 70(b)(4)) virtually was unused. Amendment, ‘liberty’ “if that is to be addition, Secretary In relies on a se- regulated, pursuant it must statutes, regulations, proclamations, ries of law-making Congress.” functions advisory opinions dating orders and back to U.S.App.D.C. 389 F.2d at 944. 1856, of which power most concern the past passports persons contends that the executive to refuse admin- practice istrative and legislative engaged also con- criminal conduct to restrict congressional approval firms of his passports authori- or condition issuance of dur- ty deny passports or revoke ing emergency;8 the basis time war or national McKissack, “passport In from numerous Charles refusals for attorney Sirhan, Mary for Mrs. and his assist- that were to 22 reasons” related C.F.R. 51.- pursuant regulation ant were revoked to 22 51.- C.F.R. the Communist held invalid in 70(b)(4) they preparing twenty-one passport applica- were leave Kent v. they applications were unsuccessful and ten tions (Br. attempts enjoin their applicants revocations. 1956 were refused because the 46). Appellant political “participants in affairs abroad whose good activities were deemed harmful rela- denied to an Ameri-' persons previous tions and whose conduct can citizen who had traveled to China bring been abroad has such as to discredit on promoter gambling became notorious as a difficulty the United States and for cause other prostitution. passport In a de- 1907 was checks, (gave unpaid debts, left Americans bad Waldberg, Nelken an American nied living citizen difficulty police, etc.).” (Br. Ap- with had pellant for Cairo, engaged in who “was ... 44); Department Passport at of State blackmailing projects, disturbing, and was or Policies, Hearings before Senate Committee endeavoring disturb, the relations of foreign Relations, Foreign Cong., 85th 1st Sess. 38- country representatives with the (1957). 40 countries.” Id. at 37-38. denials, passport The rationale these Julian, whose in- Colonel Hubert activities however, tenuously appears only related to 22 countries, supplying cluded arms various 51.70(b)(4)’s C.F.R. damage concern with § “serious passport was denied a in 1954. In 1955 two security national passport applications were refused because the policy of the United States.” applicants’ participation political affairs See, Pub.L.No.65-154, problem g., had 40 abroad become an internal e. Stat. 559 46; Pub.L.No.77-114, (1941); foreign governments (1918); involved. Id. at 55 Stat. 252 414, (1952); (Rep.Br. Appellant n.15). 17 at & 66 Stat. 190 Pub.L. addi- Pub.L.No.82— No.95-426, tion, Secretary (1978); Op.Atty. pro- that the 92 Stat. 971 23 of an Federal warrant of fact, Secretary, acknowledges Agee in felony, including arrest for a a warrant issued may be in of 18 U.S.C. 793 because violation (18 Fugitive under Federal Act Felon U.S.C. persons he “has ‘communicated’ ‘to not entitled 1073) . . . .” relating to to the nation- receive it’ ‘information Snepp In v. United 444 U.S. injury be ‘used to the al defense’ which could n.3, n.3, 517 & 100 S.Ct. & 62 L. ” (Br. Appellant for at 23 the United States.’ n.8).' (1980), Ed.2d 704 Mr. Justice Stevens ob- “Congress served in his dissent pun- enacted a number of criminal statutes specific prior by without requirement emergencies approval for in not peace-time Agency.1 into the era. It also does give adequate recognition powers to the 65) (App. Hostage Executive under Act Thereafter, execu- Agee’s in reliance on implicit adoption by Congress in tion the CIA Secrecy Agreement, practice passport administrative in assigned highly to confidential duties in him revocations. this and for For other reasons agency. He relationship a trust with the hereafter, which are demonstrated the Sec- oper- in given training was CIA clandestine retary of State on the record in this declar- ations, headquar- and allowed to enter CIA atory judgment action authorized to re- personally acquainted ters where he became voke Agee’s passport. It is an unreasonable had un- employees CIA who numerous interpretation congressional to intent whom assignments, many of are dercover hold that a cannot be revoked Agee assigned still to active. also was one with Agee’s propensities to cause seri- assignments serve in undercover abroad. ous damage to this nation. No United (App. 56-57) posi- He worked in numerous would ever re- intend to including in one with tions of trust the CIA quire a issue one President to he Operations, was Directorate with Agree’s permitted acquire knowledge record intentions. If a detailed decision of by agen- the District Court is not to be used methodology the secret reversed em- cy provide the least should cover for its undercover be done (App. 57) ployees cooperating would sources. be to vacate and remand hearings that were never held. problems consequence personal As a affilia- expose threatened to his CIA position, Agee tion in an re- undercover

I. signed (App. 57) in November 1968. FACTS November, 1971 the CIA received its first Agee on a indication that had embarked A. Background Activities. —Past program expose CIA activi- intelligence Agee is an pres- American citizen who is publish- ties publication Uruguay when a ently residing Hamburg, Germany West letter, by purportedly ed a written Mr. having previously after been deported from Agee, in which the CIA accused of was Britain, Great (danger security), to national in upcoming Uruguayan interference elec- France, Germany (endanger and Holland tions. Holland). 92); Wolf, Agee, P. L. Subsequently, October Dirty Work: in Western Europe CIA 286- press issued a release in London as follows: campaign to Today, I announced a new When Agee first entered on duty with fight the wherever United States CIA CIA as an agent July he will have operating. campaign This executed a “Secrecy Agreement” formal First, expose two CIA main functions: with the Agency which included the follow- agents meas- officers and and to take the ing undertaking: necessary ures to drive out of them operating; countries where my they consideration employment [I]n secondly, CIA I to seek within publish undertake not the United States to have the CIA abolished. participate publication in- of any formation relating or material people identify This effort CIA Agency, intelligence its activities or activ- going has been on for countries during ities generally, either or after some time .. list was (Today’s) my term of employment by Agency compiled group small of Mexican denied, validity Agreement curiam), April upheld (per rehearing 1. The of such Supreme Snepp Court v. United States. 763. 62 L.Ed.2d right I Secrecy Agreement comrades whom trained to follow the to violate his comings goings people CIA before disclose information vital to the national City. I left Mexico security of the United States. lists of in people

Similar CIA other already being compiled countries are and B. The Iranian Crisis. will appropriate. be announced when We judicial mayWe take notice signif- participation campaign invite in this from icant facts of the United involve- States’ justice all those who strive for social present ment in the Fed.R. Iranian Crisis. dignity. 201(b), (c), (f). Early Evid. in 1979 the (App. 58) Shah of Iran was forced to leave his coun- The

Following try. country passed soon into Agee announcement con- engage self-styled tinued to in a hands of a program Republic, world-wide Islamic designed expose per- “Revolutionary.” CIA activities and termed itself sonnel. In he doing publica- person principal figure so resorted to who became in tions, personal appearances press government country prom- con- was a world, throughout including cleric, ferences inent and there were a great Moslem London, Sweden, Denmark, Jamaica, many quick executions of persons pre- who quoted Cuba. He was viously interviewed on top positions held in the Shah’s the same subject newspapers or by government. frequently happens As television media in Portugal (concerning revolutions, government replaced agents Angola), Holland, CIA Spain, quickly Shah did not reach maturity (concerning Rome CIA dangerous activities Switzer- unrest continues throughout land), Bolivia, and, Australia and New country, Zealand. principally capital in the 58-61) (App. At the city, time of these disclo- Tehran. Agee sures allegedly admitted some of On November a severe interna- them and some were credited to him the developed tional crisis between the United publishers or writers without his confirma- insurgents States and a faction of militant Chief, tion. When the CIA’s Athens Rich- in Iran who invaded the United States Em- Welch, ard was murdered by Greek Terror- Tehran, bassy in occupied the entire com- December, ists in 1975 some CIA officials force, pound by seized over 50 United reportedly part. blamed activities in duly States citizens who were accredited as 92)

(App. members of the official diplo- United States 1978, Agee participated publica- Iran, in the matic mission to them in and confined entitled, tion of a book Dirty Work: CIA in Embassy. These Iranian terrorists have Western Europe In the book’s in- continued to hold the members of the Em- Agee intended, troduction stated he par- bassy staff hostages to their unlawful ticipating publication, States, to create oppo- demand that the United with whom sition to by publishing the CIA the identi- Iran treaty, has no extradition extradite ties of employees. CIA Pahlavi, The book claims Mohammad Reza Ex-Shah reliance on a number of publica- Ex-Shah, “official suffering Iran. The from cancer tions” but other, also asserts “use of less and a bile duct tempo- obstruction had been public information from within rarily several admitted to the United embassies, American and other period November, sources as short 1979 for emer- noted ...” Id. at 319. The book gency surgery. long Ex-Shah has since contains an Appendix pages departed from the United and the purports to list and large describe a number United States has never acceded to the de- undercover employees. (App. CIA mand for his extradition to Iran. Never- 66-75) theless, There is no record ever insurgents, the militant voicing oth- request made a to be complaints, released from the er occupy nebulous continue to terms of his Secrecy Agreement. 56) Embassy United States force His right to write is recognized, but not captive violence to hold therein the “damage

official staff as record refers to the members of the United States the . Diplomatic Mission. the found in recent attacks on the United ” [Embassy] ... . States Iran The United matter States took the 36) added). (App. (Emphasis Hague International Court of at the Justice alleged where the above facts as the gener- Judicial notice is also taken of the United States were not contradicted ally known fact that the following over- Iran. That Court on December 1979 throw the Shah those who succeeded was unanimous in issuing an Order which in power in Iran conducted so-called revolu- significant part states: many “Tribunals” which involved tionary important However however and con- led invariably mass trials that almost case, nected inequi- with the the present imposition death sentence ties attributed United States 201(b), (c), prompt execution. Fed.R.Evid. Government Government Iran (f). that While there was no assurance in that letter may appear be to the Iranian such would be the result of the Government, latter the seizure of the invited to Agee tribunal which Mr. was United States Embassy consulates attend, he denial of prompt public made no and the detention internationally pro- any with re- the invitation nor statement persons cannot, tected hostages in the spect government thereto. The Iranian court, regarded view of the as some- professed inability guarantee also an thing “secondary” “marginal,” having hostages. This created regard to the importance legal concern in gravest United * * * States principles involved. safety its citizens comprised who There is no prereq- more fundamental Embassy staff being hostage. members held uisite for the conduct relations be- 37) (App. tween states inviolability dip- than the embassies, lomatic envoys Iran, so that In addition to the situation in recent throughout history nations of all creeds attacks United also oc- States embassies reciprocal cultures have observed ob- countries, Libya in other curred Islamic ligations purpose. for that (App. 36), Pakistan and the States United hostage Ambassador to Columbia was held Diplomatic and Consular during period by the same of mili- band Tehran, Measures, Staff Provisional Or- Bogota. Department der tants in of 15 State Reports December I.C.J. pp. expressed judgment its that the interna- April On President of likely tional situation was such that it States announced the severance diplomatic relations that facili- diplomatic other “United States Iran ties, consulates, because of Iran’s including refusal release the embassies and hostages. May On 1980 the World would be taken over by force and that Court announced its unanimous decision de- diplomats United States and other nationals claring Iran to be in violation of interna- physically 37) would be (App. harmed.” tional hostages. law in holding the Agee’s prior Given of United disclosures C. Agee’s Hostage Relation to the Crisis intelligence throughout States’ activities Iran. world, and some of that the results were outlined and detailed in the uncontro- With this existing situation on December 36-37), verted Government affidavit 1979 a newspaper article the New State concluded York reported Post had been “Agee’s activities have caused and like- invited to partici- travel to Iran in order to ly serious pate in a cause to the national help judge “Tribunal” to American hostages being policy then held in Teh- (App. 37-38) ran under the conditions States.” described above. United States (App. 37) It is expres- incorrect to state that its citizens more allows freedom of Secretary did not Iranian world, mention the crisis sion than nation in the but our Cuba, require Germany), laws do not your Constitution and activities illegal we assist conduct adheres to our in those countries have caused serious enemies, damage causes serious to our na- damage security to the national and for- tional security, endangers the lives of eign policy of the Your United States. Department our citizens. The State stated intention to continue such activi- well advised to “mark him well.”2 damage ties threatens additional of the same kind. Passport D. The Revocation. You are your right advised of to a As the District Court describes the situa- hearing through 51.80 51.- under Sections tion: Regulations. 105 of the copy A regulations you is enclosed. If should State, Department

“The aware of a hearing, you notify desire must Agee’s activities and believing they Consulate within sixty days your after took particular significance light on receipt of this notice. general recent Iranian crisis and the Agee: (App. Department passport, on December cable to the United States consulate in Hamburg, passport.” Z3007741 Department unrest in other under the The 47) Consulate to inform Department (Emphasis added). To revoke his West issued to provisions sent has revoked areas, Germany the following you of State has of Section moved to revoke his on March 1979 the State you Passport delivery 51.71(a) requested letter 1978 No. (App. portunity tion to passport should be re-instated. ess. basis, any evidence you may with to present afford You are prepared ^[******] 13) you your right (Emphasis added) Regulations also advised that the fullest your present receive, behalf as to to a and is evidence is in addi- possible hearing pursuant on an designed why your Consulate expedited due This proc- op- Title Code of Regulations. Federal II. Department’s predicated The action is THE INSTANT DECLARATORY upon a determination made the Secre- JUDGMENT PROCEEDINGS tary provisions under the of Section 51.- 70(b)(4) your above, activities abroad are Department As indicated the State causing likely or are to cause (App. 13) Agee serious letter right advised his damage to the or the hearing the revocation his foreign policy of the United States. The Passport Regula- accordance with the tions, reasons for the Secretary’s determination 22 C.F.R. 51.80-51.105 A copy of §§ are, in summary, as follows: regulations Since the was enclosed.

early 1970’sit your has been stated inten- Agee elected not to exhaust his administra- tion to conduct a campaign remedies, continuous though to tive even he was advised disrupt intelligence operations that the prepared Consulate was on an ex- United States. In carrying pedited out that cam- basis to receive evidence he paign you have travelled various coun- present. (App. 13) desired So instead (including, others, Mexico, tries among appealing the revocation Denmark, Jamaica, the United Kingdom, State, on December elect- man, dead, Lay Minstrel, Scott, 2. Breathes there the The soul so of the Last Sir Walter said, Sixth, Who never to himself hath Canto I. own, my my This is native land! Regulations provide every 3. Such burned, conceivable Whose heart hath ne’er within him procedural protection turned, footsteps for citizens As home his who are de- he hath passports. wandering nied From on a strand! breathe, go, If such there mark him well . [etc.] regulations the relevant complaint ed to file a in the United State revocation of when: for the District of Columbia authorized District Court State, Vance, against Cyrus Secretary of na- Secretary determines that the declaratory injunctive seeking relief. causing tional’s activities abroad are required have been He should to exhaust to cause na- likely serious remedy, policy administrative Robeson tional or the denied, (D.C.Cir.), F.2d United States. cert. L.Ed.2d 3); 51.70(b)(4). C.F.R. § that, (1956),4 failing to make a more complaint charges the revoca- adequate record in this case. tion was invalid and' that unlawful five stated reasons and complaint, This case which initiated the irreparable him in- such revocation caused Court, before the presently alleges that prayed (a) It that the Court jury.5 declare Agee Fifth suffered First and Amendment 51.70(b)(4) 22 C.F.R. and 51.71 invalid §§ of his under rights violations the United and unconstitutional on their face and alleges States also Constitution. It that applied Agee, (b) and withdraw the revo- to Agee is a citizen of the United States resid- passport. (App. Agee’s cation and restore ing Germany in West holds a passport and 4) 30,1978 expire issued March on on March 29, 1983; that he is of a well-known critic for hearing The in the matter came on policy the of 3, and January 1980, States District Court clandestine of the In- the activities Central hearing Agee it was concluded that would 23, telligence Agency; December summary file a judgment, motion revoked, 1979 his was government effective which the would respond. immediately, under of 22 January hearing of course 3rd 51.71; 51.70(b)(4) C.F.R. and and that occurred colloquy §§ court in which complaint 4. An en unanimous banc decision of this 5. The Court describes the five reasons Dulles, (D.C.Cir.), irreparable injury v. Robeson F.2d 810 as follows: denied, cert. a. Revocation for the reasons set in 22 out (1956), held, practically L.Ed.2d 86 identical 51.70(b)(4) C.F.R. not has been authorized case, present pass circumstances to the that a Congress, impermissible; and is therefore port applicant required was to exhaust ad his 51.70(b)(4) vague b. 22 C.F.R. broad, and over- and, that, failing ministrative remedies could Amendment; in violation of the First invalidity regulation pro not assert the case, c. In the of circumstances revoca- viding Lawyer's for one. Cf. National v. Guild prior hearing tion without notice and violates Brownell, denied, (D.C.Cir.), 225 F.2d 552 cert. process the due ment; clause Fifth Amend- 351 U.S. 76 S.Ct. L.Ed. (1956). The Court refused to assume the inval plaintiff liberty deprives d. Revocation of idity hearing of a not had been held or the law, process without due violation questions illegality of which had not been process the due ment; clause Amend- Fifth plaintiffs asked. in both Kent v. 357 U.S. L.Ed.2d 1204 plaintiff’s passport e. Defendant revoked (1958) Rusk, Zemel 85 S.Ct. penalize suppress order to his criticism bring 14 L.Ed.2d 179 did declarato policies government’s of the United States ry judgment actions but there was no indica practices, in violation First objected pro tion Government to such Amendment. hearing cedure. At a minimum a should have plaintiffs Revocation held, Department been if not before the irrepara- will caused and continue cause him State before then If ad Court. injury, including right ble interference with his practice ministrative held to be insuffi abroad, right pursue to live his his chosen support regulation cient to the case should occupation governmen- free from unreasonable that, hearing. Failing be remanded for further interference, travel, right right tal his his requires sketchy one to deal with the record. policies criticize majority if the considers this record nations, right and of America other and his adequate, may point to be a dissent to deficien family. his live with (App. Agee cies that indicate has not sustained his 3-4) proving burden of improperly that the acted revoking passport. support that such decisions a judgment counsel conceded on behalf of his here Agee’s “causing likely was or is authorizing client that holding regulations that the to the national securi- damage cause serious Agee’s passport revocation of because of 16-17, ”, 29-30), (App. . and in- ty causing he was the serious continue such activities”. tended “to threatening to cause to our national securi- 34, 30) added) Agee had often (Emphasis constitutional; ty relations expressed just his intention to do that. and that the revocation on such stated grounds was also constitutional. its The District Court filed Memorandum January granting and Order on summary judgment motion for III. denying the cross-motion of the United States; judgment primarily its was based AUTHORITY FOR STATUTORY regulation on a determination that the REVOCATION PASSPORT invalid. were not Other issues reached. authority for State

The court stated: is held here is “[a]ll and consular to issue officials that because has not acted to “under such rules as the President shall grant the Secretary authority, regula- designate prescribe for and on behalf 53) tion in upheld.” (App. issue cannot be the United has existed States” since the decision, reaching this the District Passport first Act adopted August on support primarily Court claimed from Kent 18, 1856, 127, ch. 11 60-61. There Stat. Dulles, 116, 1113, U.S. have been minor amendments to the act but Rusk, (1958) L.Ed.2d 1204 and Zemel v. changed none wording italicized set 1, 1271, (1965), L.Ed.2d 179 forth granting above the President Secretary from which it concluded: “The of power prescribe to such The rules.6 same power to passport State’s revoke or limit a grant power day of to the present continues Congress flows from not from the President in 22 211a: U.S.C. § . power greater His is no than Con- gress may choose delegate to to him.” 211a. Secretary may The of § State case, (App. 49) applied Agee’s As grant passports, pass- and issue and cause District Congress, Court’s decision held that issued, ports granted, be verified authorizing promulgate President in foreign by diplomatic repre- countries passport regulations, did not authorize him States, by sentatives of the by regulation provide for the revocation consuls, such generals, consul or vice con- passports “peacetime” of citizens who charge, Secretary suls when in as the causing likely or to cause serious dam- may designate, by State the chief or age security” to the “national or the “for- pos- other executive officer of the insular eign policy” of the United States and in- States, sessions of the United under such tended to continue damage. to cause such rules as the designate President shall prescribe

For for reasons hereinafter set forth it and on behalf of the United submitted that such States, conclusion misreads person grant, and no other shall Zemel; congressional intent and Kent and issue verify passports such . .7 Subsequent try war, amendments include: Act of which the United States is at 3, 1863, 754; May March ch. 12 Stat. progress, Act of where armed hostilities are in 30, 1866, 4075; ch. 14 Stat. R.S. Act § danger public where there is imminent to the 14, 1902, 386; of June ch. 32 Stat. Act physical safety health or the of United States June ch. 41 Stat. 750-51. travellers.” 95-426, Pub.L. No. Title 92 Stat. 971 § Act, “Foreign 7. The Relations Authorization (1978). Agee’s passport was not so restricted 1979,” approved Fiscal Year October provision and this does not relate to the revoca- limiting added a sentence the area restrictions grounds Agee’s personal tion of on might placed passports. be seriously damage him that his travel would our law, “Unless authorized national relations. designated not be as restricted for travel any country or for use in other than a coun- added). foreign policy or the (Emphasis 22 U.S.C. 211a As the indicates, original purpose last ... clause Governors, stop this act was as much to Regulations, Passport 22 C.F.R. 51.70 public, notaries clerks of court and others (1968), added). Fed.Reg. (Emphasis issuing passports recognize from as substantially Subsection has remained power in the Secretary State issue unchanged to this basic con- date.9 here, “naturally them. This was a task fell supported tention which is deci- State, Court, regu- to the Department of as one of its sion of District is that lation is invalid “because. has Congress and had not manifestly proper functions” been [validly] grant Secretary acted to exercised [the] from the start of nation. G. Authority . .’’to exercise the au- Hunt, 36-42 Passport American regulations. (App. conferred said thority significance in recent years the 53). they passports changed as came to be required 211a, travel. provision quoted international as above, which authorizes the President to statutory Pursuant to the authority cited issue as the “under such rules above, passports “may” be issued un- designate President shall prescribe prescribed President, der rules by the and in States”, behalf and on authority lawfully delegat- accordance with obviously of authorize sufficient breadth to President,8 to him' by ed promulgation questioned rule. It State, 4,1968 April the regula- issued however, is, contended can- that the statute Agee’s complaint: tion referred to in not construed as broadly 51.70, (a) Passports, pass- Denial of A provided because to do so would constitute port, except for direct return Unit- legislative delegation an unconstitutional ed shall not be issued renewed power (§ 211a) since the statute contained in any case in which . adequate no standard. Kent v. (4) the Secretary determines that the Rusk, v. Zemel decided in 1958 and 1965 national’s causing activities abroad or respectively, held that the au- President’s are likely to cause serious to the thereunder thority “. . authorizes delegate ing verifying passports 8. 301. “§ General to authorization and of United States functions; publication delegations delegating powers and his relevant to the Sec- “The President of the United States is au- retary provides of State. The Executive Order empower designate thorized to of branch, and the head as follows: any department agency or in the executive By authority by virtue of in me the vested any or who is official thereof re- Section 301 of Title 3 of the United States quired appointed by to be and with the ad- Code, and as President of the United Senate, perform vice and consent of it ordered as follows: ratification, approval, without by or other action Delegation authority. Section 1. (1) any the President function which is hereby designated of State is law, by (2) any vested in the President exercise, empowered approv- without required function which such officer is al, ratification, or other action of Presi- by only perform authorized subject law to with or dent, upon the Presi- conferred ratification, approval, or other by 3, July dent the first section of the Act of Provided, action of the President: That noth- (22 211a), pre- designate U.S.C. ing contained herein shall relieve the Presi- scribe and on behalf of the United States responsibility dent of his office for the acts governing issuing, granting, rules any designated such head or other official verifying passports . by perform him to such functions. Such des- Fed.Reg. ignation writing, and authorization shall be in published Register, shall be Federal only change 9. The since 1968 is terms, subject conditions, shall be to such present regulation § 51.70 to the is- relates may and limitations as the President deem passports, provides advisable, suance of 51.71 “a any and shall be revocable at time revoked, passport be or limited part. restricted the President in or in whole 301, (a) where: the national would entitled to U.S.C. It was not be 65Stat. 713. this author- 51.70; ity upon 5, passport August that the the issuance of a new under President relied 1966, .”, 51.70, when he issued Executive Order . . C.F.R. § 51.71. prescribing governing granting, rules issu- only those refusals and restrictions continue these activities. Notwithstanding fairly ‘which it could argued adopt- concession, be Agee argues by Congress light ed administra- intend, did not when it authorized Pres- practice,’ tive Kent v. Dulles .”. ident passports to issue “under such rules as Rusk, Zemel v. 381 U.S. at 85 S.Ct. at he designate prescribe,” shall that he It is also contended that there was regulation should be able promulgate no practice prior administrative to 1926 of authorizing passports the revocation of denying passports grounds that our na- damage security to our national or foreign tional security foreign policy being policy. facts, On the basis of these or would seriously damaged. following discussion will establish that Zem- el v. Rusk and Kent v. support Dulles Rusk, construction Such of Zemel v. how- presidential power Agee’s revoke pass- ever, is unwarranted because the Court port separate grounds, on two either of uphold there did passports denial of grounds furnishes sufficient to re- (Cuba) an entire area grounds on the Rusk, passport. voke his Zemel v. 381 U.S. “national security”, 381 at 85 S.Ct. (1965) 14 L.Ed.2d 179 considerations”, “foreign policy analyzed first it is the because most recent 381 U.S. at great- 1279. The case, because it Kent modifies to some ex- power er deny passports to all citizens tent, supports and because it the revocation for a grounds limited area on such necessar- Agee’s passport without reliance on ily includes the power deny pass- lesser parties the affidavits filed in this port to an individual citizen on the same Court. grounds where it is conceded that his world-

wide activities have caused serious damage to our national A. The policy, Cuban Area Passport Restriction and that his stated intention to continue in Zemel.

such activities was “likely to cause” addi- opinion Chief Justice Warren’s in Zemel tional damage of the same character. Rusk, 85 S.Ct. 29) however, point, This is not L.Ed.2d 179 followed Kent seven here, asserted as the rule for decision be- years. Zemel clearly distinguishes Kent cause the Department’s administrative his- here, from the kind of facts we have and it tory revocation, which was also holds to designated ar- adopted by Congress enactment, in its 1978 eas may be denied on supports regulation and the revocation foreign policy grounds. though Even it case. No nation request should limitation, dealt with an area provides another nation to aid one of its citizens who support position for the of the Government admittedly damage intends to its national applying grounds when the same to the and policy. passport. revocation of an individual’s Zemel Passport holds that the Act of 1926

IV. impose authorized the President to area re- strictions on by THE travel United States citi- SUPREME COURT AND zens to distinguished Cuba. It Kent v. PASSPORT REVOCATION ground Dulles on the that Zemel was based Supreme contends that the Court security” on “national “foreign policy” cases discussing passport denials support his considerations affecting all citizens and was major cases, case. the two Zemel not based on an applicant’s political beliefs Dulles, v. Rusk and Kent v. actually provide 13, 16, or associations. 381 at U.S. S.Ct. much stronger support the Govern- 1279, at 1280. The same distinction exists ment’s case. analysis of this issue must here Agee. between Kent and start with the admission by Agee that his travel activities have caused serious distinguishing Kent v. Chief foreign policy Justice Warren noted that Kent involved a that he intends to passport applicant’s denial based on the deprived liberty

“political by beliefs or associations.” 381 U.S. 13, jus- He referred to Kent government,16 S.Ct. at 1279. that the Secretary has pointed finding history out: by travel tifiably “[i]n to Cuba concluded [prior practice] sup- administrative did not might involve the Na- American citizens port position Secretary in that incidents, international dangerous tion in case, we as history summarized ‘so far re- and that does not the Constitution is, material so far as here’ —that material validate for such quire him to passport on the refusals based character travel. the particular (Em- Id. applicant [Kent].” 2001, ed.), (1958 16R.S. U.S.C. 1732 § phasis added) he Then added: “the Secre- provides: tary has refused Presi- State is made known “Whenever it [of Zemel] any has dent that citizen of the United States appellant’s validate not because of liberty unjustly deprived been of his peculiar appellant, characteristic but authority any foreign government, under the it shall be the to such foreign policy rather because of considera- duty of the President forthwith government tions citizens.” affecting (Emphasis all Id. demand of that the reasons appears imprisonment; and if it to be Also, added). importantly for this most wrongful rights and in violation of the case, the Zemel Court held that it was not citizenship, the American with the layed means, President shall forth- pre-1926 restricted to relying administra- citizen, release of such if demand the unreasonably practices: tive release so demanded de- refused, President shall use such Even passport legis if there had been no war, amounting to as he not acts of lation Act, enacted since the 1926 necessary proper think to obtain or post-1926 history imposition of executive release; effectuate the and all the facts and proceedings relative thereto shall as soon as restrictions, of area as well pre as the practicable be communicated the President 1926 history, would be of relevance to our Congress.” construction of Act. The interpreta (Emphasis at 1280 S.Ct. tion on a expressly placed statute added). Zemel, applied Section those charged with its administration pass- supports thus the revocation of must given weight by courts faced port. When facts of this case are taken construing the task of the statute. by their it is four corners obvious Tallman, Udall v. 380 U.S. 16-18 [85 State, acting as the President’s 792, 801-802, 13 616]; L.Ed.2d Nor lawful has delegate, determined that wegian Nitrogen Co. v. United Agee’s passport revocation of one of [53 “necessary means proper to . L.Ed. 796]. effectuate the release” of the American 381 U.S. at 85 S.Ct. at 1278 (Emphasis hostages-held Hostage in Iran. The captive added) proceeded up- then Court present Statute fits the situation in Iran hold the Cuban area restriction. and, Zemel, glove supports like a as in In reaching Zemel, conclusion its (or Secretary’s revocation) pass- denial of a Court placed strong also upon reliance port. recognized The District Court Law, Hostage U.S.C. “extraordinary Executive’s been unchanged as a United States Law act” under stated that “[i]f since July 1868. Act of ch. [Agee’s] activities are detrimental 15 Stat. R.S. 2001. § § hostages in Iran ... passport his It also forgotten cannot be in the ” may be . cancelled . . under 1732. § early days regime, of the Castro United (App. 53) for some unexplained States citizens were arrested and impris- reason recognize the court failed to the charges. think, oned particu- without We strong bring factual circumstances which larly in view the statutory of President’s 1732 as one of play into the statutes that § obligation means, to “use such not justifies the revocation. war, amounting may to acts of as he think The proper” to secure factual in the case necessary the situation instant stronger release of an citizen the unjustly support American furnishes much

97 (Emphasis added). the facts Reference was made to of 1732 than describ- application § United upon ed and relied Zemel. States crisis and prior the Cuban missile Castro’s presently in Iran are under arrest citizens holding without of some Americans imprisoned charges. without The rec- charges.11 While Iran is more distant than before ord the District Court disclosed some Cuba, crisis present the Iranian evokes participate in possibility Agee might a on a many of the same considerations more judge “Tribunal” that would these Ameri- fact, present the immediate basis. In forci- participation may may citizens. His can Embassy in occupation of our Iran and ble have possibility. not been a realistic How- staff as holding hostages the of our official ever, conclusion at was a rational the as an act properly are more considered time, given Agee’s the rene- reports, news the war than the situations in Cuban missile character,10 gade past activities and charges and the without crisis arrest intentions, future the stated absence of Americans in None of our Cuba.12 Em- public might participate denial that he bassy officials were seized confined in reportedly requested as the by militants in Cuba. The relied on “hostage” by situation may Iran. The revocation have Court in Zemel was best minimal him change caused to assert of mind. compared present situation in Iran. Congress 1732 is broad. authoriz- Section 2,500 years All civilized nations for have means, ed President to use “such not persons diplomatic envoys treated the war, amounting may to acts of as he think Thus, inviolable. Court’s reliance Zemel necessary proper obtain or effectu- 1732 and national ate the release . .” United States grounds, policy applied when to the instant deprived unjustly citizens who are of their case, lead the conclusion inevitably to liberty by any foreign government. The the revocation is autho- revocation of Agee’s passport on national by rized the same considerations. grounds and foreign relations is disposition The that Zemel makes of the objective obviously pursuit of such and is challenge legislative 211a, delegation amply supported by regu- cited Agee: is lation, power equally applicable the co-extensive con- by ferred Finally, challenges appellant the 1926 Act on the it does not con- ground that Zemel “[tjhat The Court noted also tain sufficiently definite standards passports] restriction [Cuban [on area] which is formulation of travel controls challenged supported in this case is weightiest important considerations of Executive. It is to bear in security." mind, 381 85 S.Ct. at 1280 in appraising argument, recognized against in 1918 when it 12. The use of force the official staff of passed requiring pass- Diplomatic the Act citizens to have the United States Mission to Iran ports occupation by to leave or United enter the States that and the seizure and force of the Embassy may nations conflict with United States United Iran “will be said to possible employ renegade war, wherever be an act of but state or condition Americans no agents employing as her instead war exists without such declaration Whiteman, suspicion Congress. about [their nationals] whom would 10 M. International Law easily Hackworth, H.R.Rep. (1968); be excited.” VI No. 65th International G. Law Cong., (1943). (Empha- insurgents 2d Sess. H.R. A contention added). war, Lauterpacht, sis The same situation not continues H. International Law Rosenberg, (Oppenheim) (6th 1944), though exist. States v. 200 F.2d Ed. (2d 1952), Rosenberg Cir. sub nom. instant situation Unit- create doubt as to wheth- present ed er the L.Ed. “contention” at the time does beyond insurgents. present not extend very situation in Iran similar to that which stages during early existed apparent of the so-called 11. As is Zemel’s from the Petition for Court, 6-8, Boxer Rebellion in in 1900 Rehearing Supreme pp. China before the use in the these troops by force the United States. II facts were not in the Zemel record. The Su- Britannica, Encylopedia Micropaedia judicial 210. preme Court in effect took notice of them. 17-18, changeable because 381 U.S. at explosive S.Ct. at 1281 (Empha- added). essence, nature of sis contemporary international re- the Zemel Court lations, ground and the fact added another broad that the Executive list Kent, infra, discussed the Executive immediately privy information which may rely upon pass- to, to withhold or revoke swiftly presented cannot be evaluated ports prior practice and the administrative by, and upon by legislature, acted Secretary supports the revocation of Congress giving the Executive au- —in Agee’s passport. thority over matters of affairs— must of necessity paint with a brush History B. of Administrative Denial of broader than that it customarily wields in Passport Applications. domestic areas. Zemel interpretation holds “Practically every volume of charged Act the Executive with its ad- United States Statutes contains one or reenactment, ministration before its 1926 joint more acts or resolutions of Con- thereto, and subsequent may both be con- gress authorizing action the Presi- determining sidered in whether dent respect subjects affecting will recognized be deemed to have and con- relations, which either leave sented to particular the exercise of authori- the exercise of the power to his unre- ty. past passport This calls for a review of judgment, provide stricted a stan- practices it fairly to determine “which could dard far general more than that which argued adopted by Congress be were always been requisite considered light prior administrative [executive] with regard to domestic affairs.” Rusk, 18, practice.” Zemel v. United States v. Curtiss-Wright Corp., at 1281. Interim declarations by Con- 304, 216, 222, [57 gress also relevant to this review. L.Ed. 255]. In times emergency Congress has rec- This does not mean that simply because a ognized that certain factors should be taken statute relations, deals with foreign it can into consideration in the pass- issuance of grant the Executive totally unrestricted e., ports, i. “public safety”;13 “the interests freedom of choice. the 1926 States”;14 “if [the President] Act grant. contains no such We have deems that the interests of the United held, Dulles, Kent v. supra, and reaffirm require”;15 “[promote] States so today, that the 1926 Act must take its defense”;16 the national “inimical to the content from history: only authorizes States”;17 best interests of those passport refusals and restrictions “needed to insure the security.” “which it fairly argued could declarations, Following these Congress in adopted by Congress light passport requirement19 continued the practice.” administrative Kent v. because “public safety” required.20 so supra, at 128 S.Ct. at limit- So [78 traditional 1719]. needs of national ed, the Act does not constitute an previously invalid had been considered in connec- delegation. tion emergencies with the legislation.21 22, 1918, May 81, Sess., 13. Act of (1952); 477, ch. 40 Stat. 559. 66 Stat. 137 H.J.Res. 82d Sess., Cong., (1952). 2d 66 Stat. 14. Act of June ch. 55 Stat. 253. 1185(b), (1978). 19. 8 U.S.C. § 92 Stat. 993 S.Rep. Cong., 15. No. 77th 1st Sess. 1 (1941). S.Rep. Cong., 20. No. 94th 2d Sess. 32-33 16. Id. (1976), Cong. 1976, p. U.S.Code & Admin.News 2288. Id. S.Rep. Cong., No. 93rd 1st Sess. 83-84 Sess., Cong., 18. H.R.J.Res. 82d 2d 66 Stat. (1952); Sess., Cong., S.J.Res. 82d 2d (1952); Cong., 66 Stat. 96 H.J.Res. 82d 2d passport issue refusing engaged to a to one emergencies The 1978 Act continued “disturbing, or endeav- blackmailing into the so-called passport requirements disturb, of this coun- oring to the relations peacetime future. of representatives try with the practices be- brings up passport This perfect description a This is countries.”28 of after the 1926 reenactment fore and intention. The Agee’s presently stated of Passport Even to the 1856 211a. right deny asserted the to Department also passports issued on a Act the Executive policy” grounds public passports high “on During the War discretionary basis.22 Civil that he to believe and if there “is reason an order of the passports required by improper will to an put passports and were denied to those Secretary of State unláwful use.”29 subject military service without a bond.23 also denied to citizens “on Passports were passport President Wilson’s rules In 1920 injurious peace hostile and errands [pass- Secretary “to refuse authorized the dangerous to the Union.”24 country to those who were ports] in his discretion” security is more vital in war- While national dangerous Following class.”30 “within a time, major govern- matter of always it is a Act, President the enactment of the 1926 mental concern. rules in 1928. Coolidge issued new to state the ob- required applicants These Attorney General in 1901 ruled that ject trip country and fur- of their each passport may be denied in the “discretion” thereof, proof nish and authorized Sec- State, “an Secretary of the avowed retary deny passports in his discretion.31 anarchist, for instance.”25 In 1903 Presi- President Hoover’s Executive Order promulgated passport Roosevelt rules dent identical,32 President Franklin D. Roo- rejection applica- which authorized the substantially sevelt’s order was same33 tions which “further an unlawful or would Instructions of Passport Division Office In 1906 the improper purpose.”26 Solicitor 30, examples per- set forth July advised that a State who could be under sons denied to a citizen passport could be denied who Secretary. discretionary power gone had and became notorious as China disloyal persons guilty of These included promoter gambling prostitution acts, an intention to persons suspected of likely because he “is to embarrass Unit- bring grave a crime or otherwise Department ap- ed 1907 the commit States.”27 justice, country, evaders of a decision of the Consul discredit on this proved General See, Hackworth, 22, Hyde, g., supra at 498-99. 22. e. C. International Law 27. 3 note Chiefly Interpreted Applied by the Unit- Hackworth, (1945); Digest States, ed States 1195 3 G. Foreign 28. 1907 Relations Moore, (1942); of International Law 1076, 3 J. Part 1082 -83. Digest (1906). of International Law 919-23 29. Id. Hunt, Passport 23. G. The American 49-54 (1898). Travel, Hearings Right 30. Part Sub- Rights, Senate Ju- committee on Constitutional Moore, supra 24. 3 note at 920. Mr. Se- Committee, diciary Cong., 85th 1st Sess. 343- ward, prescribed of State in (hereafter Hearings). 1957 Senate people, Depart- this class of and informed his “strictly enjoined grant ment that it was no (1928). 31. Exec. No. 4800 Order loy- person of whose whatever alty you to the Union have not the most com- (1932). 32. Exec. No. 5860 Order satisfactory plete and evidence.” Id. (1938), Fed.Reg. 33. Exec. No. 7856 681. Order Op.Atty.Gen. 25. 23 902; July Moore, Passport supra Instructions of Division Office 26. 3 note Rules Gov- (Abstract Passport erning Granting Issuing Passports Laws and Prece- dents, 7.22). September No. Code go port registration and “those who wish to abroad to take facilities to them or to them.42 extending protection part in the or political military affairs of foreign ways countries in which would be added) (Emphasis contrary policy to the or inimical policy were also Foreign considerations welfare of the The United States.” 1957 passports made a in the denying basis for regulation issued in 1952. This authorized Hearings Senate at 74 set forth two exam- engaged such action when citizens were ples of passports denied on the latter designed violate laws activities would ground. protect of the United States The period 1930’s was also the when a promote order to the national interest “[i]n imposed number of area restrictions were by assuring foreign conduct on the issuance of passports. These includ- relations unlawful inter- shall be free from Spain (1936)35, (1935)36, ed Ethiopia China The 1956 ference.”43 amendment of this (1937)37, Europe (1939)38, and after World regulation provided passports should II, Czechoslovakia, Albania, War Hungary, “prejudicial be denied for activities to the relations; China, Bulgaria, orderly foreign conduct of Communist Rumania and prejudicial the interests the Soviet Union.39 In 1968 States.”44 this standard The rules issued under the 1941 Act rec- was restated to authorize denial ognized the Secretary’s discretion and called applicant for an whose activities abroad are for consideration of whether the use of the causing likely or are to cause serious dam- “prejudicial would be to the inter- age foreign poli- 1947, ests of the United in- States.”40 cy regulation This United States.45 structions to consular officers called for past years, has not been 12 changed in the passport applications to be referred to the present and constitutes the standard. Department applicant’s wherever the politi- passport practices The of the State De- cal activities were “of a character which partment through years fully have been tends to be inimical to the best interest of Congress. year The 150 communicated precedent detrimental to interna- denying passports to those who could with the interfere harmony tional and understanding.”41 carrying policy report- out our From Department 1948 to 1955 the notified 1956, examples ed to and six all Passports” “Bearers of as follows: 1955 were cited where were refus- Engaging political affairs in ed to “participants political affairs countries abroad whose activities were deemed harm- Department always considered good ful to relations.”46 These six refusals it is improper for American citizens were called to the attention in Senate’s 1957 to interfere in the political affairs of for- along with several current denials for travel eign general countries and in has taken to certain areas which prejudicial “would be ground such action refusing pass- foreign policy of the United States Hackworth, 22, supra Foreign 35. 3 (August note at 533. 41. Service Serial No. 1947) at 5. 36. Id at 531. Publication, Department 42. State “Information 37. Id at 532. Passports,” for Bearers of 1948 -1955. Fed.Reg. (1939) (unless applicant Fed.Reg. (1952). 43. 17 prove “imperitiveness” pro- could of his posed travel). Fed.Reg. (1956). 44. 21 Dept, (Nov. 1955). 51.70(b)(4). 39. 33 of State Bull. 45. 22 C.F.R. 6069-70, 6349, Fed.Reg. (1941). Hearings

40. 6 on H.R. Subcommittee No. Committee, change. Fed.Reg. Judiciary Cong., 1942 amendments made no House 84th 2d (1942). Sess. 12-13 ” 47 abroad, During hearings traveling the same citizens he what interests of the reported pass- that 166 considered to be best State Rea- ports “Security had been refused for Nation.54 during period

sons” the 55 month from added) (Emphasis February August 1951 to 1952 and Passports also been denied where have January from 1954 to December illegal but were the citizen’s acts were not 1956.48 considered inimical to the interests fully The subcommittee was in- Senate Examples: Colonel Hubert United States. regulations Department formed to various coun- (supplying F. Julian arms interpretations, the extent and exercise of tries),55 Luke McKissack and and Charles discretion49, departmental reg- and that the Sirhan).56 (attorneys his assistant for Mrs. merely Department ulations confirmed Note, Passport Refusals for Political far back as can trace practice you “as it” Reasons: Issues and Judicial Constitutional refusing passports persons who act- Review, (1952) reported 61 Yale L.J. 170 ing “contrary policy to the of the United passport denials: several similar well known Legislative Reference States.”50 Ser- (a who physicist Kamen had care- radiation Congress reported in Library vice of the information to lessly disclosed confidential passports 1957 that were denied to “those vice-counsel, 174-76); Id. at Isac- a Soviet inter- on missions adverse to the national (American Party son Labor member who political ests” officers in the rebels, the Greek proposed to aid Id. at Department would determine whether trav- 176); (speaking giving Robeson con- inter- el would be “harmful to the national certs abroad “not in interests ests.” States”, 176-77); (left-wing Id. at Lamont writer, “not ... the best travel the 1958 decision in Kent v. Following States,” 177); interests of the Id. at United Dulles, Congress was advised that the Exec- (spied Joseph Charles E. Davis for Senator traditionally passports utive had denied McCarthy on Communists and United where their issuance would be “inimical to diplomatic personnel preju- “to the States relations.”52 This Switzerland,” 178). Id. dice of at after Ken t53 in 1960 practice continued Congressional Report to the Senate Staff practice In analyzing prior administrative Operations Committee on Government re- inquiry solely it is erroneous to restrict ported 50) to revocations since 1968 when That authority regulation present to issue or withhold reached its form. has, law, Secretary’s

passports by precedent regulation merely been codified the part long interpretation his authori- standing vested of State as a its responsibility protect ty of his American under the statute since the date of 73, 4137, 22, Hearings, supra Foreign 47. note S. Senate on Rela- 1957 Senate Committee tions, 23, (1958). Cong., 128 -29. 85th 2d Sess. 48. Id. at 40. Reorganization Passport Report, 54. Staff State, Department Functions of the Senate 22, 59, Hearings, supra 49. 1957 Senate note Operations, on Committee Cong., Government 86th 68, 75, 101, 164-65, 180-81, 248-49, 266. (1960). 2d Sess. 13 50. Id at 60. Law, Developments 55. in the The National Se- 49, Hearings in 51. S.Res. Subcommittee on Liberties, curity 85 Harv.L. Interest Civil Rights, Judiciary Constitutional mittee, Senate Com- (1972). Rev. 1150 n. 76 Cong., (1957). 85th 1st Sess. 175-84 (S.D.N.Y. Rogers, 56. Sirhan v. No. 70-3965 H.R.Rep. Cong., No. 85th 2d Sess. 1970); Cir., Sept. (2d No. 35364 Oct. 1970) enjoin (attempts to the revocation denied Hearings on H.R. House Committee Courts). in both Affairs, Foreign Cong., on 2d 85th Sess. (1958); Hearings on S. S. S.

original change enactment refusal since 1856 to 1856. It is this con- make interpretation sistent of the Act over its Presi- to the grant basic entire life that constitutes the admin- dent. 22 Prior administra- 211a. U.S.C. § practice istrative that must be considered. Zemel v. Rusk practice tive therefore under fully aware of the Depart- Agee’s passport supports the revocation of ment’s grounds denials of on foreign policy national national security policy, nev- grounds. support 1732 is additional Section thereto, objected er and it enacted for such revocation. present law in requiring passports past Finally, activities in view of with full knowledge here, additional stat- and his admissions two long would follow standing its administra- tive, support Secretary’s utes revoca- add practice applying and interpreting the Agee’s passport tion regulations. relevant statutes and First, grounds. Congress recognized in the Therefore, Congress, when with detailed Intelligence establishing statute the Central knowledge Department’s interpreta Agency that it was “in the interest of na- statute, tion of its authority adopt and the ” intel- security “[protect] tional . . . present ed the statute in without al ligence statutes, sources and methods from unau- tering the existing adopted and confirmed the authority of the thorized “the Executive to disclosure” and to maintain continue its administrative practise. security foreign intelligence activities of FPC, Chemehuevi Tribe of Indians v. 403(d)(3), the United States”. 50 U.S.C. §§ 395, 410, 1066, 1075, 43 U.S. 95 S.Ct. L.Ed.2d added). Therefore, 403g57 (Emphasis re- (1975); Co., NLRB v. Aerospace Bell voking Agee’s passport attempt in an 267, 275, 1757, 1762, 416 U.S. 94 S.Ct. 40 stop “intelligence his disclosure of sources (1974); Rusk, L.Ed.2d 134 Zemel v. 381 U.S. methods,” id., recognized and statutorily 12, 18, 1278, 1281; 85 S.Ct. at Kent v. being “in the interest of national securi- 125, 127, 78 S.Ct. 1118. ty.” In view history of this it was error for That national security considerations the District Court to conclude that the Sec- granting to be considered in deny- retary, in denying passports on national se- ing passports support also derives some curity foreign policy considerations from the pro- Act of June which through years, has not followed “admin- vided that the Administrator of the Bureau practice istrative sufficiently substantial Security and Consular Affairs of the implied consistent to warrant ap- [the State, Department of which Bureau in- proval Rusk, Congress.” Zemel v. of] Office, Passport cludes the “shall have au- at 1279. The denial of thority to maintain direct and continuous passports to those who intend to cause seri- liaison with the and the and with damage [FBI ous to our security CIA] security other internal officers of policy very is the minimal basis that expect purpose would Government for the of obtaining follow. Congress has so indicated its and exchanging information for use in en- provides: 403g provides: 57. Title 50 U.S.C. Section “In the interests of the “(d) purpose coordinating For the the in- intelligence activities of the United States telligence activities of the several Govern- implement proviso order further to departments agencies ment in the inter- 403(d)(3) of section of this title that the Di- security, duty est of national it shall be the Intelligence respon- rector of Central shall be Intelligence] Agency, the [Central under the protecting intelligence sible for sources and Security direction of the National Council (63 methods from unauthorized disclosure.” . That the Director of 211) Stat. Intelligence responsible Central shall be protecting intelligence sources and methods ” (Em- from unauthorized disclosure phasis added). indi- The record before District Court Chapter58 of this provisions forcing in viola- illegal conduct the internal cates instances the interest of (66 is sufficient 793(d). This 8 U.S.C. Stat. tion of 18 United States.” U.S.C. § 174-175, 847). revoca- support 91 Stat. Kent to under addition, McMahon and tion. greatly Zemel ex- appears that It thus indicate addi- affidavits before Court V, illegal grounds, conduct see pands Kent’s very serious na- illegal conduct of tional infra, authority for additional provides rely on these does not ture. This decision on national se- the revocation of because of their violations but additional where foreign policy grounds curity and not overlooked and they nature serious with historical ad- such action is consistent in the event Appendix in the are discussed Revoking Agee’s practice.59 ministrative further considera- that his conduct receives hopefully halting the passport, thereby 80-98) serious tion. intelligence release of illegal dangerous foreign policy security and our national world, throughout sources and methods in the record before present which is the interests of national clearly within conceded, Court, also in- and is District Therefore, Secretary’s action security. conduct.” “illegal volves in the instant case was authorized Con- gress and was lawful. by the Kent was denied a

Government, then in accordance with the ap- an existing regulations, required V. stating to submit an affidavit plicant he was then or ever had been whether ANALYZED AND KENT v. DULLES When Kent refused to submit communist. DISTINGUISHED affidavit, passport application such an Kent 357 contends that v. Agee suit brought he a successful was denied and 1113, 2 L.Ed.2d 1204 78 U.S. S.Ct. declaratory Supreme relief. The Court na- (1958), support revocation on does not his claim and ruled that “freedom upheld foreign policy grounds. security tional aspect of important . . .an travel is however, case, is not on such That at ‘liberty’ ”. 357 U.S. the citizen’s never discussed because the Court point at 1119. S.Ct. notwithstanding argu- grounds such grant- power stated that the opinion dissent, grounds that such were ment in its Congress did not extend ed President here is present.60 significance What is of file such for refusal to denying passports revo- recognize Kent did that that reaching that In the course affidavits. has applicant cation is authorized when the several areas defined conclusion Court “illegal" or in engaged in conduct that is passports Congress, had authorized in the laws of of] “violation First, was when naturally, to be denied. at States.” Id. 357 U.S. S.Ct. allegiance did not exist. citizenship or 1119. security damage 1185(b), requiring passports serious to our national for- 58. 8 U.S.C. § citizens, part eign policy. ideological creat- of the “Act” referred to. Cf. factors also Stat. that constitutional overtones ed additional Kent involved denial could not be surmounted. provides additional authori- U.S.C. § weakly ideological grounds, passports ty. contrast, Agee’s passport was re- In asserted. admittedly damaging to voked because of acts the denial of 60. The contention is made security; which he conceded were party the national passports in mem- Kent “to communist Also, govern- likely “assuredly sympathizers” continue. in Kent involved bers and security bring foreign policy hostage considera- and national situation ment never had a play as the area ban. While tions” same Cuban did in the Cuban 1732 into as the Court § situation, may “consid- Kent erations,” have “involved” some such our and as we have here with embas- proof the record was deficient sy hostages in Iran. passports the issuance of without non-commu- likely cause nist affidavits would cause or be Illegal A. Conduct v. Second, Under Kent Dulles appli- . . . [when] Passport Revocation. as a Grounds conduct, illegal participating cant was law, trying escape the toils of the Agee In this case that his has conceded frauds, promoting passport or otherwise damage to the actions “have caused serious engaging in conduct which would violate security foreign policy national stated inten- laws United States. States” that “[his] threatens tion to continue such activities Id. at at 1119. The also Court the same kind.” additional light stated that administra- 13, 30) facts that the court From the practices categories tive those two were the notice, may judicial Fed.R. consider under only fairly argued ones which it could 201(b), (c), (f), the affidavits filed Evid. adopted by Congress when Court, may also be con- in the District Court, reenacted the statute in 1926. The damage to causing cluded that “serious however, did observe that one can find in foreign policy” the national the records of the State “rul- is, been, “participating ings covering of subordinates range a wider would vio- illegal conduct . which ” of activities than the two indicated. Id. at late the laws of the United States”. at 1119. considera- He has also U.S. 78 S.Ct. at 1119. tion need not be taken here of such commu- stated his intention “to continue such activi- merely nist activities. The demonstrated, Court refused to which, ties” it will be violate give our laws. State “unbridled dis- grant

cretion” to or withhold a passport point this it should be developing first from a citizen for any substantive reason he noted the case now before Court Withholding choose. Id. separate judicial proceeding a de novo relations not a direct appeal from an administrative grounds is not an exercise of reviewing “unbridled decision where court is limit- strictly legal ed to the factual and consider- power.” explaining After the refusal upon ations which the administrative action to file a non-communist affidavit did not Exchange was based. Cf. Securities relate citizenship allegiance on the one Chenery Corporation, Commission hand, or to criminal or unlawful conduct on 454, 459, 87 L.Ed. 626 63 S.Ct. other, the Court ordered the issuance of permissible appeal It is thus on this passport. upon to in the rely facts set out uncontra- Kent not damage did involve serious to dicted of in the affidavits record District security foreign national of the policy Court, appellant, the concessions of the con- of the United States. The Court said “[w]e clusions of law and fact admitted beliefs, associations, deal with with with parties in this fact of proceeding, any ideological matters.” Id. at judicial which notice be because taken 1120. Agee present does not a case that subject it is dispute “not to reasonable beliefs, deals with ideological associations or (1) generally that it is either known within Agee’s matters. Rather acts cause serious jurisdiction territorial of the trial court damage to our national (2) capable ready of accurate and deter- policy, and such conceded involves mination resort to sources whose accura- Thus, illegal conduct. Kent v. cy Dulles is reasonably questioned.” cannot be Fed. 201(b), (c), (f). R.Evid. important for its recognition passports may be person partic- denied where the Agee’s complaint alleges that “exhaustion ipating illegal conduct which vio- would of administrative is not required remedies ” late the laws of the United States. 4), (App. . and he did not exhaust at 1118. This brings his administrative remedies. He thus analysis Agee’s fore an cross-examination, acts avoided but also lost illegal advantage constitute conduct. might whatever accrue to him any person . the same to the admin- . being from this limited to Court [etc.] a bare bones deci- istrative record. While not entitled to receive it . [s]hall ’’61 rendered on the limited facts in imprisoned sion can be be fined ... . . record, have better case would if presented the issues Agee, by his dis- The record indicates that held, hearing had been or if the trial court of the throughout the world identi- closures or if the evidentiary hearing, had held an agents, and CIA ty of undercover CIA Agee’s deposition, Government had taken methods, 403(d)(3), sources and 50 U.S.C. § because “the facts as viewed an adminis- supra, clearly has violated 18 U.S.C. expert eye may provide guidance trator’s 793(d). Such disclosure of identities reaching constitutional determi- court methods, agents, sources and CIA Baker, nations . . . .” Plano v. country support a in each would (2d 1974). Cir. Cf. Robeson v. F.2d separate The District Court indictment. deposition might His supra note 4. have from the record that could concluded provided illuminating also have further offense, justify- thus Agee committed such facts as to his conduct and intentions. ing passport his under Kent. revocation of However, the record is sufficient support A draft indictment is set forth the mar- the revocation his “ille- for the gin.62 gal past conduct” which is involved in his Relationship Passport Regu- B. disclosure of secret CIA information in vio- Illegal lation to Conduct. applicable lation of the criminal statute. “If The District Court remarked that: striking example

The most ille- law, any is indicted for violation gal conduct is seen under the Wilful Com- passport may 53) be cancelled”. munication of Defense Information statute. 793(d). Agee argues provides: U.S.C. This statute criminal conduct can- support not the revocation of his “Whoever, lawfully having possession of foreign policy national con- . relating information to the na- they comply siderations unless sepa- tional defense pos- which information the Passport Regulation rate sessor has reason to believe could be which authorizes used injury or to revocation crimes in certain stages nation, advantage any foreign prosecution. regulation will- referred communicates, delivers, transmits, issued, fully provides shall not be or causes to be communicated except for direct return to the United 793(d) provides: possession relating 61. 18 lawful U.S.C. of information Whoever, (d) lawfully having possession the national defense of the United wit, relating identifying_and_ information information and_and ___as possessor intelligence agents defense information the injury reason to believe assigned (Nation), could used to the of the CIA which infor- advantage of the United States or 'to the integral part mation relates to and is an nation, communicates, any foreign willfully the United States’ and which defense the said delivers, transmits or causes to be communi- Agee had reason to believe could be used to cated, delivered, attempts or transmitted or injury United States to the communicate, deliver, to transmit or cause to nation, did, advantage of a on or communicated, delivered or transmitted _ day _, 19_, about at a any person the same to not entitled to receive public press of_, city conference in the it, willfully or retains the same and fails to (Nation), wilfully communicate, deliver employ- deliver it on demand to the officer or communicated, transmit and cause to be de- ee of the United States entitled to receive it transmitted, attempt livered and municate, com- to [sjhall impris- be fined ... attempt deliver and transmit and (64 1003). oned ... or both. Stat. communicated, to cause to be delivered and Information, Transmitting Injurious Defense transmitted the aforesaid information relat- 793(d) 18 U.S.C. § ing to the national defense of the United Jury charges: The Grand of_, States to the in viola- Government Philip Agee, intelligence That a former 793(d). tion of 18 U.S.C. § agent Intelligence Agency of the Central (hereinafter CIA), having the United States States, States,” olations the laws of the outstanding where there is an Fed- United of] eral felony, recognizes may warrant of arrest for a where Kent such that conduct parole probation grounds denying passports conditions would be vio- serve as for even charges lated or applicant though has been committed actual formal criminal have institution, to a mental where process extradition is not been laid or are not in the sought foreign country, being prosecuted from a or where a in formal manner. some subpoena passport applicant against to the proceed involves The Government need not a prosecution grand jury every Federal or a inves- means in order by law violator formal tigation. 51.70(a)(1) (5).63 22 C.F.R. to that prove separate proceeding to some underlying theory The of of- illegal. contention his conduct was Prosecution respect regulation to this where many is that fenders is declined in instances violated, grants exhausts the circumstances under which il- laws are as in the case of legal may grounds constitute immunity. conduct for It would be absurd hold denying passports. regula- given such was because an admitted criminal tion merely provides specific several to act as a witness prosecutorial immunity grounds for denying passports greater and under of other securing the conviction criminals, Kent v. thereby 357 U.S. at the Government denying passports passport does not foreclose denying by foreclosed from him a for citizens who are engaging proving separate passport proceeding “otherwise in a conduct which would violate the laws of the that he had violated the United States crim- United testimony. States.” Id. inal his own laws as conceded in- Declining prosecution because it would Kent describes “trying escape those volve the disclosure of informants or classi- the toils of the law” only group as one who Also, fied matter is example. another law might passports. be denied The enumer- violators are frequently permitted to con- ation of (a)(1) circumstances in subsections prosecution tinue without for a considerable (5) persons all involve be char- period of time because their surveillance being acterized as group. proc- The produces evidence other criminal viola- ess of the proceeded courts has further with tions, such as continuing espionage involv- respect to those covered subsections ing others. (a)(1) (5), but that enumeration is no means exclusive and Kent recognizes that present The is one factual situation just “participating illegal conduct” may where the failure of the Government support denial. Id. It thus proceed against wrongdoer on criminal clear illegal conduct grounds need not be for- preclude ability does not its to use mally processed stage indictment, civil and other remedies. See United States warrant, arrest subpoena, Kearns, (D.C.Cir.1978) extradition or 595 F.2d court order to grounds (civil prosecution constitute for Export-Im- denial of officer of of a passport. port fiduciary duty). Branch for breach of

Since criminal involving conduct “nation- regulation The authorizing the refusal of al security” “foreign relations considera- passport applications where the national’s tions” “illegal constitutes conduct” and activities causing abroad are or are likely “[vi- (3) 51.70(a)(1) (5) provides: applicant subject 63. 22 C.F.R. The to a court or- committing (a) der him to a mental institution. except A for direct return to the (4) applicant subject is the of a re- shall not be issued in case in quest provisional extradition or arrest which: applicant presented subject extradition which has been is the of an out- government standing foreign country. Federal of a warrant of arrest for a felo- ny, (5) including applicant subject The warrant issued under the Fed- is the of a sub- Fugitive (18 1073); poena pursuant eral Felon Act U.S.C. or issued to section 1783 Ti- applicant subject 28, Code, to a court or- tle United States in a matter involv- der, parole, for, or ing prosecution conditions of or grand jury conditions of Federal or probation forbidding departure of, investigation felony. from the States; United or quired, which authority cause serious national securi- was scheduled to or the ty policy 14, expire September States, provides a non-criminal basis for Each of these instances in our nation’s denying passports. lynchpin to this history, passports required when have been entire is that clearly discussion ille- country, of our citizens to leave or enter gal damaged also the national se- conduct protect came into force to our national se- Thus, curity. revocation was curity foreign policy. It was Kent, legal under and under 51.70. § issued, passports climate that were to be analysis disposes This likewise of the con- oper- modus Congress’ denied or revoked. revoking tention that there is some bar to during required passports andi when it Agee’s passport Attorney because the Gen- periods significant. those each of eral at earlier allegedly some date stated explicitly pro- those four instances it never of Justice did not in- Act that any vided standards in the should bring charges tend to formal criminal issuing be followed the Executive in or against him. Yet, refusing passports. surely to issue Congress implicitly intended that the Exec-

VI. apply utive would stan- passports. issuing denying THE PRESENT STANDARD FOR THE dards in Otherwise, OF UNDER issued to passports ISSUANCE PASSPORTS if were to be REQUIRING THE object STATUTE PASS- willy-nilly, requir- all citizens PORTS ing passports practically meaning- would be Thus, less. the fact that did not Generally throughout history specifically provide standards for revocation United States citizens have not been re- requiring passports in the indicates statute quired passports to have to enter leave Congress recognized the Executive as country. there have been First, possessing power spe- such without a more several exceptions. an 1815 enact- Congressional delegation. cific during required pass- ment the War of 1812 4,1815, 31, 11, ports. February Act of ch. All present this is relevant to the situa- Second, during Stat. 200. the Civil War 1978, again Congress, tion because in the passports required by were order of the existing, troubled world situation then Secretary of exception State. The third again provided by amendment to the 1952 occurred during World War I when Presi- Act, supra, passports required were (40 dential Proclamation No. 1473 Stat. leaving entering all citizens 1829), May under the Act of States: Stat. made it unlawful to leave or “(b) Except provided by as otherwise enter without a United States valid subject the President and to such limita- passport. only This later Act was effective exceptions tions and as the President in wartime but it was amended in 1941 so it prescribe, authorize shall unlaw- applied prior entry could be to our in World ful for citizen of the United 21, 1941, War II. Act of June ch. enter, depart attempt from or to de- Stat. 252-53. the President’s Procla- See enter, part from or the United States 14, 1941, mation No. 2523 of November passport.” unless he bears a valid 1696. That emergency Stat. continued until 7, 1978, 1185(b), Act of October U.S.C. April 1952 and was then extended until Pub.L.No.95-426, 54, 57, 96, 137, 92 Stat. 993. The Confer- April (66 Stat. 333). Next, Report ence Committee on the bill states the Act of June Pub. L.No.414, 215(b), permanent that the above enactment made ch. 66 Stat. au- authority require thorized the of the President President Proclamation to passports valid require citizens to have for for- American citizens bear eign entering leaving travel. It was under this Act that when the United States citizens’ passports subsequently preserved previ- re- that had

108 ously been exercised on an the near East where the “emergency ba- vital interests of sis” from lapsing September, otherwise seriously our nation are most hazarded. 1978.64 It Act should also be that the 1978 noted

This Congression- whole case turns on the delegates legislative authority over is- al intent which is essentially indicated the enact- on the same suance of 211a, e., ment of degree this 1978 statute because that basis as i. the same § present law. Much of the discussion pari discretion. The two statutes are in parties as to the intent of earlier Con- —they materia both authorize President gresses and the effect of earlier court promulgate regulations deci- passport —and sions passe becomes because of Thus, this latest together. are to be read the defer- Congress enactment. The intent of in the standing long ence due the administrative present law expressed in the power Senate Com- construction under of the President’s Report mittee the Bill: applies delegation 211a to the same 1185(b). Congress followed fact that The committee recognizes clearly that 211a, pattern gave no same passport authority should not be re- indication of its dissatisfaction with the ex- stricted any way which would limit the tent of the exercised the Presi- ability President’s depar- control section, dent under that enhances the con- ture of foreign U.S. citizens countries adopted Congress when clusion that ad- such travel is inconsistent with a practice ministrative and intended to autho- greater interest, government pre- such as rize the to continue the same venting a seeking citizen who is to avoid practices. Chemehuevi v. judicial Tribe of Indians processes of FPC, 395, 410, 1066, 1075, 95 States. Nor would U.S. the committee wish to (1975); 43 L.Ed.2d limit NLRB v. Bell Aero- ability President’s to deter U.S. Co., space 267, 274-75, citizens from U.S. entering countries with 1757, 1761-2, (1974); which the 40 L.Ed.2d 134 is at Zemel war or Rusk, regions where there U.S. 85 S.Ct. occurring are hostili- (1965); ties L.Ed.2d 179 which relate to Kent v. American pol- 116, 125, 128, icy interests. U.S. 78 S.Ct. L.Ed.2d 1204

S.Rep.No.842, Cong., 95th 2d Sess. (Emphasis added). It Agee is obvious that The Secretary of State thus conforms to is interested in travelling to countries the intent of Congress, and therefore acts where hostilities occurring which direct- constitutionally, when he revokes a ly relate to American foreign policy inter- regulation under the on the factual circum- addition, ests. may be denied Agee presents. stances that if Agee’s right to travel is inconsistent with greater “a government interest.” When VII. applied standard is the answer is also CONGRESSIONAL SILENCE AS

obvious. The authorization of LEGISLATIVE INTENT travel is clearly with, inconsistent and is outweighed by, greater government in- argued It is has not enact- protecting terest of our national security ed of the bills that were introduced in and foreign policy from the serious damage Congress provide spe- the Executive with that Agee concedes he intends and which statutory authority cific to deny passports the record indicates he causes. (App. 36-37) when their issuance would cause serious Our foreign policy cannot stand much fur- damage to our ther damage, particularly since Agee is policy, and that Congressional such silence presently directing his attention in Iran and indicates Congress thereby intended to Report H.R.Rep. Conference Cong. on H.R. p. Code & Admin. News Cong., (1978), No. 95th 2d Sess.

109 (of Agee’s interpreta- modification and its there is authority. such withhold Zemel, create substantive expression by tion) can any specific by absence of a total any the construc- way indicates affect any changes materially in Congress intent. such tion of a statute. every introduced of bills are

Thousands day, light see Congress that never VIII. here. were not enacted like those that 25,000 bills intro- had over 95th CONSTITUTIONAL ADDITIONAL into Yet, than 650 were enacted less duced. CHALLENGES congressional in- laws. Persuasive public challenges to Agee raises three additional from be discerned ordinarily tent cannot (1) violation of Secretary’s actions: Market, v. Retail Inc. Boys silence”. “mere travel, (2) vio- right to Amendment’s Fifth 235, 241, Union, 90 U.S. Clerks Amendment, (3) First lation of the (1970). also 1583, 1587, L.Ed.2d 199 See due right procedural of his violation v. Bd. of Commissioners United States has of these contentions process. Each 110, 135, Sheffield, 98 S.Ct. 435 U.S. of them and none fully considered been (“it imper- is 965, 988, 55 L.Ed.2d revocation of setting aside the warrant approval to draw inferences missible they were not dis- passport. Since inaction of Con- unexplained from the by nor this Court by cussed the District States, 328 v. United U.S. gress”); Girouard them necessity to consider there is no Court 90 L.Ed. 1084 66 S.Ct. opinion. further in this find in treacherous to (1946) (“[i]t is best adoption of a silence alone the congressional law.”); NLRB v. Plaster-

controlling rule of CONCLUSIONS 129-30, Union, ers’ Local 50.71(b)(4) Passport Regulations, §§ 360, 368-369, 30 L.Ed.2d 312 51.71, the denial which authorize Here, the floor in either no bill ever reached damage to our prevent serious legislative The mere failure of house. foreign policy are con- national that never reaches a body to enact a bill face, on their constitu- stitutional nothing more than in most instances is floor applied Philip on the tional as signifying nothing.” Sev- fury, “sound and declaratory judgment novo record in de opposition do not expressing eral senators action, existence of such seri- in which the Very few congressional constitute intent. damage ous is conceded. unanimously. Most bills have pass laws First, its wide U.S.C. § here, there Generally, some as opposition. the President in hos- grant authority between the contents many are too variants situations, authority on the of Zemel v. tage question to pending legal of such bills and a Rusk, 1271, 14 L.Ed.2d 85 S.Ct. the sub- congressional inaction into convert (1965), the revocation authorized In in- stance a declared intent. other Agee’s passport part of the President’s expression by stances there is no clear Con- hostages the Americans held too, efforts to free enactments gress. subsequent Then Kent, foreign policy.65 our following in Iran and to conduct developments, as here applying say support did In a rule or It that the Executive the revocation. is incorrect regulation misconception revoking Agee’s passport. rely of Executive 1732 in is not on § power regulation regulation for a court to overlook the and the He relied on the pass- underlying relating encompassed This conferred statute. all functions Moreover, Secretary expand regulation. issuing regulation ports. or restrict (see specifically referring specifically 63 Stat. Ill” District Court relied on “sec. clearly contemplated implications below). 1732 did consider the of that § Section 1732 (App. 53) “extraordinary Section authori- statute. 1732 does confer such a function. The ty” (App. 53) “extraordinary authority” hostage hostage situations conferred uphold clearly is alone to revocation. a “function” conferred sufficient situations is and, being pari la mate- Its force is prior 1185 and of State buttressed statutes, practice. available to administrative ria with the relatively There are few United citi- correctly perceived the The District Court and vi- possible capability relevance of this statute but did who have the same zens justi- not full to the facts which give effect cious intent to our fy support use the instant particular its brand Agee. as Mr. And his activities, hate, pres- revocation. e., alleged i. CIA very “prob- ently at the core of the Iranian Second, in Douglas’ opinion Kent Justice demand that the lem” with the terrorists’ Embassy “spies.” be staff tried as 1118, 2 the supports L.Ed.2d constitutionality passports of the denial of foregoing To the that differs extent the generally, Agee’s particular, for and in the I majority opinion respectfully from the involved in “illegal conduct” viola- dissent. 793(d). tions of It frosting 18 U.S.C. is illegal

the such cake that acts also cause APPENDIX damage security serious our national provide foreign policy and thus additional IN- ILLEGAL CONDUCT BY AGEE AS support regulation. for revocation under the DICATED BY FILED AFFIDAVITS Third, supports v. Rusk the Zemel denial IN COURT ON APPEAL THIS of passports security” on “national In addition to the record before Dis- “foreign policy” grounds and denial is such Court, trict has it an this Court before prac- consistent administrative affidavit filed in the District Court tice. day Government after the District Fourth, in the three instances its days Court released decision. Three la- passports when were re- February ter on Government quired to protect our filed sup- another affidavit in this Court in foreign policy, change no was made in the port Stay Pending Appeal. of its Motion President’s authority which was first recog- Agee affidavit in reply filed states that August 18, 1856, nized the Act of the two Government affidavits were read to Congress again Stat. 60-61. in 1978 re- His answering very him. affidavit is brief quired passports citizens have for foreign great and does not many very contradict In enacting travels. such law the Senate allegations concerning personal serious his Report August Committee on the Act of allegations actions. Such uncontradicted additionally indicated that must therefore be considered having as may be denied the Executive on national possible been admitted. Because their foreign policy grounds “when future to Agee’s passport they relevance such greater travel is inconsistent with a overlooked, should not be accordingly government interest.” It is clear here that analyzed and commented on below. to issue a passport to a citizen who admit- tedly caused and intends to cause seri- Agee After was advised that his ous damage revoked, to our national security and had been his affidavit to this foreign policy, capable so, and is doing Court indicates he stated publicly would be “greater inconsistent with the first time he had not intended to visit government avoiding interest” in serious Iran until hostages were released. to such vital interests of 98) the nation. provides: Section 4 promulgation Stat. Ill Reliance on this statute in Secretary may questioned regulations Sec. 4. The of State indicates that all rel-

promulgate regulations such Secretary rules as evant “functions” of the were incor- may necessary carry porated regulations. out the functions into the And note su- Secretary now or pra, hereafter vested delegation describes the President’s State, State or power and he of all under U.S.C. 211a. delegate authority perform of such employees functions to officers and under supervision. direction and

A. announced that time

At same] [the The Definitional Criminal Statutes. terrorists to the Iranian suggested had he offenses, reference detailing Before such hostages they should release is made to three statutes on CIA in- exchange for all CIA records fundamen- Code that are States [Criminal] past Iran for the operations in telligence tal crimes. applicable to all Agee of- In that connection years. First, 2(a) provides U.S.C. analyzing fered to assist the terrorists against an “Whoever commits offense newspa- According to such documents. aids, counsels United States or abets [or] rejected terrorists per accounts commission, punishable its Nevertheless, Agee, since Agee’s offer. 717). (65 principal.” Stat. time, specifically to have reported implications that he would suggested very to the terrorists broad This statute has crimes. hostages were to all federal applies Iran after the travel is known that the ter- released. it Since Second, 7(3)66 18 defines the U.S.C. § Embassy documents rorists obtained “special jurisdic- maritime and territorial Embassy, they when ransacked tion of the as used in the United States” eventu- Iran even in the Agee’s travel to United Criminal Code to extend to States released, hostages are ality that “Any lands . acquired . on-the-spot him do an would enable States, use of the United and under the classified docu- analysis possibly jurisdiction concurrent thereof possess. ” currently ments the terrorists (66 589). . . . Stat. McMahon, Deputy Di- Affidavit of John N. provision By virtue of this the United 84-85) operations. rector for CIA Tehran, Embassy in Iran is within States added). (Emphasis “special” jurisdiction territorial It the uncontradicted submitted ground occupied by United States. a alleged facts in these affidavits indicate Embassy United is not officially States illegal several instances of conduct serious Hackworth, territory, IV United States G. by Agee. forth below are the outlines Set (1942), International Law 564 but such foreign of several “national premises subject juris are to the concurrent policy” by violations of United laws States diction of the United criminal laws States Agee which are indicated the affidavits to the extent indicated our laws and They filed in this Court. are in addition to opinion by Judge decisions. An Craven 793(d) violation and each violation Er- the Fourth Circuit in United States v. constitutes serious of the character dos, 157, (4th 1973) 474 F.2d 159-60 Cir. by Agee’s conceded admission. Kent Under denied, 876, 42, 414 94 38 cert. U.S. S.Ct. v. any may support violation of law 122, respect felony L.Ed.2d held with to a required a revocation. It is not Embassy committed in the United States formally charged. Guinea, that the violation be 7(3) See grants “Spe that 18 U.S.C. § V, B, supra. jurisdiction” cial . . territorial with 7(3) provides: pow- 66. 18 U.S.C. This definition includes an exercise of the pun- er define conferred “[t]o “special The term maritime and territorial against ish . Offences the law of Na- jurisdiction States”, as used in I, tions.” U.S.Const. art. cl. 10. United States title, includes: 249, 109, Rodgers, v. 150 U.S. 14 37 L.Ed. S.Ct. (3) Any acquired lands reserved or for the Flores, (1893); 1071 United States v. 289 U.S. use and under the exclu- 580, 53 77 L.Ed. S.Ct. thereof, jurisdiction sive or concurrent (1933). The law of Nations consists of the place purchased acquired or otherwise body principles of rules and of action which are legislature United States consent of the binding upon in their civilized states relations be, the State which the same shall for the Brierly, one another. J. The Law Na- fort, arsenal, magazine, erection of a dock- (6th 1976). presently tions 1 Ed. It is described yard, building. or other needful as International Law. holding

Terrorists Embassy the American respect to federal crimes committed in an hostages within Iran therefore consti- embassy country acquired “foreign government.” tute the use of the United States and under its applicable With these basic definitions jurisdiction. concurrent The United States by the proscribed the crimes United States Embassy in obviously Tehran these satisfies Code, from affida- appears Criminal requirements. vits that several United Agee has violated addressing conduct that Criminal statutes statutes, in addition States criminal injury causes direct to the United States 793(d). additional violations U.S.C. These Government, capable per- which is are outlined below. particular petuation regard without citi- locality, applicable United States B. countries, though

zens in even expressly statute does not so declare. Ski- Illegal Violation of Conduct and United Florida, 313 riotes v. U.S. by Agee. States Laws (1941); 85 L.Ed. 1193 Foreign Forbidden Intercourse with Bowman, States (The Logan Act), 18 Governments U.S.C. (1922). Unit- L.Ed. 149 The laws of the 953, 11. This remaining three §§ subjects “everywhere.” ed follow its offenses are based on affidavits filed in (5 Furlong, United States v. (App. 80-100) this Court. Wheat.) L.Ed. Supreme Court to rule has refused out Agee quoted stating as that “in recent of validity applying United States laws to weeks” prior pro- to he December foreign illegal- citizens of who act countries posed (who to the “militants” Iran obvi- ly foreign against the United States ously under a § U.S.C. “faction Bowman, countries. United States v. su- body insurgents” constituting a “for- pra. eign government”) they compel should statute,

The third provides U.S.C. the United “exchange § States to . “foreign government” the term operations as used the files C.I.A.’s on its in Iran in the United States Criminal Code includes Captive since 1950 for the Americans.” “faction, any body insurgents”. Cf., or (App. 94, 3)68 Such conduct vio- H provides: 67. 18 identifying personnel § U.S.C. involved in or in ana- CIA lyzing government hostages Foreign documents until after all the § defined “foreign government”, by The term are released. This I sure as used in am is known Mr. 112, 878, 970, except my title proposals this in sections Vance because have not been any government, (Emphasis added). Agee’s includes secret." Id. affida- faction, body insurgents vit, 1980,” or within coun- a “February, part filed in as of these try with peace, which the United States is at proceedings, but after the District Court deci- irrespective recognition by the United 97-98), opinion (App. sion denies that he States. by government, was ever “invited to Iran its (Emphasis added). This statute is also autho- Council, Revolutionary any representa- or by I, rized supra, U.S.Const. art. cl. 10. n. See thereof, purpose sitting any tive for the on pp. and text at 51-52. whatsoever, any tribunal other reason ” (App. 98) (Emphasis added). . As 68. The affidavit in this court of John McMa- N. sweeping hon, appears, actually Deputy Operations as does not CIA Director of refers article, possibility by to rule out the that he a New York was invited Times 24 December 1979, quoting Agee, insurgents that in the the “militant” whom the Iranian “recent weeks” prior professedly to December he Government could not control. They hostages had “proposed threatened the with government, trial to the Iranian to the reporter Agee occupying Embassy and execution and told the militants the American in Tehran he had talked with and to . the “militants” “recent . . that the [others] quickest (App. to weeks” to solution the crisis would be an December exchange 93-95) Agee by operations of the CIA’s If was not files its even invited captive in Iran since 1950 for the the “militants” then admitted Ameri- his conversations ” possibility cans. with them take on even more 94) (App. (Emphasis added). criminality Agee part sup- is also severe on his as it would quoted having possibility port “will said that he not become that he initiated the contact with the “Iranian

(His communication 94) furnish the (App. could Government” prohibits any 953 which 18 U.S.C. § lates count.) for an additional basis carrying from of the United States citizen any or intercourse correspondence terrorist (the Iranian foreign government Statute, (2) The Treason U.S.C. meas- influence faction) intent to “with [its] 2381. The treason statute makes it an § . ures or conduct [that] offense enemies “adhere[] [the] [of violation of this agent thereof.”69 aid and States], them giving is self evident from with the Terrorists act comfort States or else- within the United A draft statement. his own uncontradicted where 2381.71 The .”18 U.S.C. margin.70 in the is set forth indictment constituting foreign government with of- proposed militants in which he with the thereof, agents they ficers and with intent to influ- extortion. secure the CIA records undeveloped responsible nature ence measures and conduct of said go government agents If elected to of such facts. hearing he had and of the officers and offered, disputes such the State thereof in relation to and controver- brought have been out cross-ex- foreign government facts could sies between said and the deposition judicial States, in the amination or proceeding. United and to defeat the measures of was not disputes the United States versies, such and contro- might solely intended because he have revoked in that within a few weeks before the Iran, go activi- but because his world-wide day Philip 23rd Agee of December the said caused, likely causing, and were ties had did, communicate, correspond, and have damage to the national securi- to cause serious ty with the intercourse aforementioned Iranian foreign policy the United States by counselling, suggesting Terrorists them, world, including throughout Iran. dispute relation their and controver- 13) they sy pre- with the United States that could vail in their unlawful demands on the United provides: 69. 18 U.S.C. 953 by forcing contrary the United States correspondence with 953. Private thereof, authority by extortion, to deliver governments possession of the aforesaid Iranian into States, Any wherever citizen of the United foreign govern- constituting Terrorists said be, who, without he ment, wit, property, certain United States all indirectly directly com- Intelligence Agency records of the Central of any correspondence or mences or carries on (CIA) intelligence the United States any foreign government on CIA or intercourse with any thereof, operations years, past in Iran for 30 in agent the with intent to officer or by any for the return release said Iranian Terrorists or conduct of any influence the measures upwards agent foreign government of 50 citizens of of officer or of the United States or thereof, any disputes duly in or contro- who were accredited to the relation to official staff of States, Embassy Tehran, Iran, the United or to defeat versies with the United States in and States, being United shall be the measures of the who were then threatened with execution $5,000 imprisoned not being unlawfully fined not more than or held and confined within (62 years, Tehran, more than three or both. . . . Embassy by the United States Iran 744) Stat. foreign government hostages force said as in dispute controversy its with the United Foreign 70. Unlawful Intercourse Govern- States; 953, all in violation of 18 §§ U.S.C. Act) (Logan ment Jury charges: The Grand provides: 71. 18 U.S.C. 2381 day From on or about the 4th of November 2381. Treason day until on or about the 24th of Decem- 1979 Whoever, owing allegiance to the United ber, 1979, (an Iranian), (an Iranian), a States, against levies war them or adheres to large group whose names are of other Iranians enemies, giving their them aid and comfort unknown, Jury hereinafter re- to the Grand elsewhere, within United the States is Terrorists”, a to as “Iranian constituted ferred death, guilty of treason and shall suffer “foreign government” as defined 18 U.S.C. imprisoned years be not less than shall five body they in that were a faction $10,000; and fined not less than and shall be Iran, country recognized by insurgents within a incapable holding office under the country the United and with which the States (62 807) United States. Stat. during peace; the United States was at that provides The United States Constitution also charged period Philip Agee, herein as aforesaid III, States, Article defendant, Section 3 as follows: a the citizen against did, Section 3. Treason vicinity Hamburg, Germany, then in the States, only levying States, directly shall consist War authority of the United without them, against adhering indirectly carry correspondence to their Ene- in- mies, giving body insurgents them Aid and Comfort. No Per- the tercourse with aforesaid 114 extortion, through might obtained

that be by the militants offers be taken his would Iranian terrorists a fac- constitute militant and encour- support clear indication tion, insurgents in Iran. an Ameri- position from agement for their Constitution, has no the treason Under the Terrorists give citizen. It would can may territorial limitation and the crime be courage” holding the “heart and to continue by an living committed American citizen embassy hostages to detriment and the outside the United Kawakita v. States. of the States and United interests States, United U.S. S.Ct. hostages. rights particularly to (1952). Adhering L.Ed. 1249 enemies plain by such indi- It is conduct the United States likewise has no territorial his to the enemies of cated adherence required limitation. The overt acts for aid and giving them com- United States may minor, treason be “small . . fort.74 . . . not insignificant crucial . . . a casual unimportant step long physical ... its His offense in distance Ann”, may attempt; “Orphan be an abortive ... is to that of aspects, similar [it may minute Rose”. Dur- possibly “Tokyo . . . remote from the also who be] scene of demoraliz- action . . . It is II she broadcast ing the nature World War Japan from American important propaganda act ing ... [If was convicted give troops acts would in the Pacific and enemy tend the] the treason courage war,’72 ‘heart and United Courts under go with the enemy by her adhering to . for is sufficient for statute [that treason].” 738-39, 741-42, D’Aquino Id. at broadcasts. radio citing S.Ct. at States, cert., (9th 1951), 192 F.2d 338 Cir. 1, 28-29, Cramer v. United denied, 918, 931-932, 96 L.Ed. 89 L.Ed. 1441 (1952). enemy Agee adhered to The death upheld sentence was he in which proposals telephone over It rigorous Kawakita. follows that more terrorists that suggested admits he proof required standard of than is trea- hostages they exchange the American son not would be required charge for a the CIA’s Iranian records. “adhering to enemy.” pro- What [the] scribed is “adhering . ene- Charge Jury, the Grand F.Cas. mies in their enmity.”73 This aptly de- (C.C.Ohio 1861) (No. 18,272) declares: scribes Agee’s adherence. “This language enemies, [adhering Here it is clear exchange leaves no room to doubt treason etc.] proposal for obtaining Terrorists predicated acts which are not [on] CIA records showed more than sympathy a direct levying of war according to the with the militants. When coupled with his of construction that phrase . .” . suggestions counselled and offer to assist v. 47 Haupt, F.Supp. the United militants See States 836 subsequently analyzing in the (N.D.Ill.1942), grounds, rev’d on CIA other 136 they acquired, records had and others enemy assistance son shall be an is sufficient to come convicted of Treason unless on terminology Testimony purposes within such the of two of forfeit- Witnesses to the same Act, ing question open overt or veterans benefits. The acts in in Confession Court. opposition shall articles written in have Power to declare to the Kore- Treason, asserting, alia, the of Punishment but an War inter no Attainder that United States Blood, Corruption support of shall Treason work of or of in the United Nations Korea consti- except during intervention”, Forfeiture the life of Per- aggres- tuted “armed “armed son attained. by perpetrated sion" “fiendish Lidicies American Id. hands.” at 904. The Court held Treby, Captain 72. Lord in Chief Justice Trial of the determination must be made in the first Vaughan, 485, 13 How.St.Tr. 533. by instance the Administrator of Veterans Af- 73. Id. greater fairs. acts here are of substance assisting in and more direct the militants than Gleason, Thompson (D.C. 74. v. 317 F.2d 901 Thompson. in 1962), any by Cir. held that act defined Con- gress as a crime which does in fact render jurisdiction of the United territorial However, the seizure and States,” kidnapping by statute its (1943).75 F.2d Embassy, jurisdiction, American within such applies of the terms occupation Amer- Embassy power staff of of the is as to the only question confinement hostages against them as holding to enforce its laws citizens and United ican States 12, act of war. note See an does constitute laws States who violate United individuals forth be- is set supra. A draft indictment in territo Embassy American in an low.76 Erdos, supra, v. ry. United States 11, the federal decided that Fourth Circuit

(3) Kidnapping, §§ U.S.C. statute, Kidnapping Lindbergh Ameri manslaughter applied and 2. statute to an of transportation originally required Here Embassy can citizen in the Guinea. com- or in interstate the victim clearly guilty of the Iranian citizens are Trans- merce, recently been amended. term kidnapping. Regardless of what an essential element longer no portation acts, kidnapping is a applied to their is “seized” if victim the crime every country. crime in civilized “special maritime within the “confined” laws, our offense under is an Since the United jurisdiction territorial kidnapping statute the federal applying Embas- States Since United States.”77 compound comprising Iran, territory laws federal criminal under our sy in Tehran Embassy the United States decisions, “special . is within 76. Violation of the treason. ing ed States date fully members the entire seized and otherwise as that, 23rd Iran mies have continued to tion Embassy in mies of the United aforesaid facts and conditions and above described that charged treaty, 1946), giance the 15th ist between Embassy in the United States 18 U.S.C. § Raza 18 U.S.C. The Grand On militant faction and Haupt denied, said United States give and to hold said staff said enemies constituting during or about the Pahlavi, seized and day despite aff’d, and confined to the United the United States extradite (hereinafter as the day April, This conviction was them aid and comfort was retried and convicted premises the 4th Tehran, Haupt said Jury charges: 11 were enemies of the United to threaten with trial December, 1979, the Ex-Shah to the absence of Haupt, defendant, duly enemies of the United States within a few 91 L.Ed. occupied period, Philip 4th hostages for their demand Treason Statute day v. United foreign government by counselling “enemies”), of the said against States, did, accredited force Iran and also 152 F.2d 1980 and day Embassy, and said ene- body date hereof to be ene- 67 S.Ct. members for reward November, a citizen and violence unlaw- the United States unlawfully their will over 50 Iran, affirmed in Unit- November, weeks before the States, continued to elsewhere than official staff of thereafter, (1947), adhere to the in violation of United States insurgents in and on said Agee, Mohammad owing and execu- extradition unlawfully (7th again 1979 and that the propos- rehear- occupy herein under L.Ed. alle- Cir. and ex- 77. 18 U.S.C. § ing liver into the United States release many States records of the Central tain CIA’s tants [the an Government Iran for the pying for the ing ations in Iran “exchange cans.” 18 U.S.C. 2. Within recent jurisdiction of the United otherwise minor inveigles, away within the term of shall 1. Within recent weeks 1979 said in direct object 1979 said (2) any (a) property files on its the American to the aforementioned contrary States captive Americans.” Whoever be other ^[*] if: and holds by faction and years their of the above said punished decoys, kidnaps, the such act any person, except past communications from Philip Agee proposed to the Irani- Philip Agee proposed since 1959 for the overt special ^[*] parent enemies of said or for life. Iran that possession, did and operations in Iran since 1959 unlawfully (CIA) . acts, for ransom or reward provides: weeks ^[*] “exchange ^[*] against the CIA’s by imprisonment years; body Embassy maritime thereof, Intelligence described violations of on CIA performed the follow- they ^{[*] [*]} prior to December wit: States; States, abducts, the and that in return for the insurgents] seizes, force the United enemies of files on its when: in the case of a captive Ameri- thereof, and territorial person hostages, sfc ^[*] operations in to December . [Tehran] to wit: all West Ger- Agency or carries confines, to effect the mili- ^[*] is done . to de- occu- oper- cer- upholding a demurrer to an indict- decision ment, application “special virtue of an of the . remarked: jurisdiction of territorial locus, States” specially The not necessary when grant the defined, upon purpose is within constitutional to Con- depends the description punish by as evinced the gress: “To define and .' Of- upon the nature of the crime law of against fences the Nations.” U.S. Const, upon power territorial the limitations I, art. cl. 10. The constitutional jurisdiction government punish of a by provision framers intended em- crime under the law of nations. power Congress to “define” as well as to “punish” 97-98, against at 41. offenses the law of na- Farrand, tions. 2 M. The Records the citizens, In Bowman three United States Federal Convention 1787 315-16 and a citizen of Great Britain then resident The militants “seized” and “confined” the Brazil, were indicted in the United States 50 official staff members United District Court the Southern District of Embassy within the This Embassy. seas, for conspiring New York on the high ais direct crime against the United States. charged separate Brazil as Iranians, count, Because the kidnappers are govern to defraud a United States Supreme ment presently corporation. outside the reach Court held of United States proscribe that criminal statutes acts judicial process, question the Iranians in injurious directly that are to the Govern may never come within the reach of federal with capable perpetuation ment and judicial power sufficiently for this nation to regard any particular locality out are to enforce “special” jurisdiction territorial applicable be construed as to citizens of that Congress has decreed. if the high United States on seas or in a they judi- did come within the reach of our foreign country79 though even there is no power cial it likely is most that United express declaration that effect. The uphold States courts would their trial and Court also refused to dismiss the indictment grant conviction under the constitutional against subject, though the British even he Congress to “define” and “punish” crimes was never ship aboard United States against law of nations. U.S.Const. art. and his locus was all times within the I, cl. 10.78 territorial limits of Brazil. Bowman, United States 260 U.S. L.Ed. Chief Jus- permit That international law would Taft, overruling tice a district prosecute against court’s United States to crimes it Newspapers May reported government recognized, was but it noted was prosecute jurisdiction the British Government would that such local was not “asserted” surviving (as sole here), by comity Iranian among terrorist who held the and that civilized diplomatic hostages Iranian staff as for week only nations where the offense affected “the Embassy in the Iranian in London. Neverthe- helping vessel or those them” the offense less, indicated, the Iranian Government so the to be dealt with the authorities of nation asserts, story news that it seek extra- would belonged. .opinion to which the vessel rec- dite the terrorist to Iran. This indicates that ognizes exception an where the dis- offense the Iranian Government also contends peace tranquillity turbs the of the local special jurisdiction territorial over offenses here, country, sovereign but where as the local by its nationals that are committed in Em- its law, does not assert its it is submitted that bassy foreign country. in a comity, recognized of the Inter- order Justice, supra, recog- national Court of would Flores, 79. Cf. United States v. jurisdiction nize the declared concurrent 155-58, 584-585, 53 S.Ct. 77 L.Ed. 1086 directly nation offended. such circum- Under (1933) which held that law United States stances there would no internal force against murder on waters “within admiral- prevent could courts the offended nation ty jurisdiction and maritime applying from law their to its citizens oth- applied States” to an American citizen ers laws who violate its and come within the board an American vessel shore attached power judgments. of its its courts enforce Belgian Congo point within cable at a course, special jurisdiction Of maritime differs Congo inland 250 miles from the mouth jurisdiction. special from territorial jurisdiction River. The concurrent of the local

“If two or persons any more ... in subject jurisdiction place to the of the in- “morality justice” the of because States, conspire United ... in by Justice Cardozo suggested volved seize, take, possess any proper- force Delaware, 383- v. Jersey New 414-415, ty of United contrary 78 L.Ed. States 84, 54 S.Ct. authority thereof, they (1934): shall each be gov- law, law that or the $20,000 impris- International fined not more than times, states, like the erns between not years, oned more both.” than 20 states, twilight a ex- law within common hardly it is distin- which during istence law in applied Under the United States justice, till at morality or from guishable Erdos, supra, Embassy the American in a attests of court imprimatur length place subject special Tehran is a to the supra, pp. Lauterpacht, quality. jural its States, jurisdiction territorial of the United 16; 255; Hall, pp. supra, 11. From the statement attrib- U.S.C. § 11,12. Jenks, Jurisprudence, pp. The New Agee conspired uted to that he is clear commits (Agee) thus citizen American An with the Iranian Terrorists who were on laws States of United violation a criminal Embassy premises to seize extortion our “counsels”, U.S.C. “aids” and he when States, of the property contrary United country, under a citizens of 2(a), property thereof. circumstances, violation in their the above subject conspiracy was the of the consisted premises on the kidnapping statute our of records, e., i. of Government CIA records Embassy where a United States of years covering operations of in Iran. jurisdiction. has concurrent States United conspiracy Agee Such between and the Ter- kid- in such principal a thus became rorists existed within the “recent weeks” terrorists counselled when he napping December, before the 23rd of day 1979. As demand violations to kidnapping their in above, Agee’s stated statement concedes e., rec- i. the CIA property, States United the facts that constitute their offense of release ords, return for in e., 94), i. that he counselled “militants” A draft indictment captives. American to demand the margin.80 operational CIA records on in the forth set Iran. A draft indictment set forth in the Conspiracy, 18 U.S.C. (4) Seditious margin.81 provides: This statute 11; period during Philip Kidnapping said of time States, Agee, a citizen of the United also a Jury charges: The Grand herein, aid, November, day defendant did abet and of counsel said or about the 4th On continuing date of this indictment in until the defendants their commission of said crimes Embassy compound against United States the laws the United States coun- Tehran, City in the they in Iran situated on lands selling proposing United force the acquired for of the United States the use contrary authority thereof, States to the to de- thereof, jurisdiction a the concurrent under possession liver into of said Iranian Terror- statutorily special place defined within the ists, hostages, in return for release of their said jurisdiction of the Unit- and territorial maritime States, wit, property certain of the United all States, Terrorist) (name (name Iran ed Intelligence Agency records Central per- Terrorist) other Iranian and numerous (CIA) operations States CIA unknown, composed Jury to the sons Grand past years; Iran for of 18 violation Terrorists, constituting mili- group of Iranian U.S.C. 11 and 2. §§ Iran, body insurgents faction and tant defendants, did, by charged force and herein Conspiracy 81. Seditious to Commit Extortion unlawfully occupy United the said violence Jury charges: The Grand Embassy and hold and seize and confine States day Within the recent weeks before the 23rd hostages to and otherwise as therein reward December, 1979, thereafter, place in a Ex- unlawful demands extradite their jurisdiction subject to the Iran, of Iran United States Shah from the wit, acquired lands the use of the despite extradition the non-existence Tehran, Iran, Embassy United nations, treaty 50 citi- between the two over jurisdiction lands are under the concurrent duly of the United States accredited zens States, Philip Agee, Embassy an American staff of the United States official did, Tehran, Iran, citizen and the herein defendant with nu- of 18 §§ in violation U.S.C. FEDERATION, NATIONAL WILDLIFE

Appellant, Douglas COSTLE, M. in His Official Ca

pacity Administrator, Environmental Agency,

Protection et al. (Ocean Dumping)

No. 78-2167. Appeals, United States Court of Columbia Circuit. District 2, 1979. Argued Nov. 2, 1980. July Decided of Rehearing As Amended Denial Aug. Amended As Oct. co-conspirators conversation merous unindicated then aforementioned militant Tehran, Iran, present Iranian in names Terrorists. whose are to unknown, (2) Jury a day Within few Grand hereinafter referred weeks before the 23rd December, Terrorists,” unlawfully, Philip Agee to as “Iranian ingly know- counselled the said willfully conspire together Iranian Terrorists within commit the United States Em- bassy Tehran, against States, proposed in certain Iran and offenses the United in that some objectives provisions illegal of their violation of of Sections 2384 and could be achieved Code; forcing America, contrary 2 of United the United Title States that said States of authority thereof, Philip Agee coconspira- and said unindicated to deliver into the possession seize, conspire by tors did take the Iranian force to Terrorists certain States, property wit, possess contrary property of of the United the United States all CIA thereof, e., property intelligence operations records on to the ing i. consist- CIA in Iran years, years past past for the of records for the return for the release intelligence operations said in Iran of the Iranian Central Terrorists of the aforemen- States, Intelligence Agency hostages. tioned American citizens here- held as “CIA”, (3) during inafter to as The said Iranian referred Terrorists continued ille- gally occupy Philip premises conspiracy Agee, course of said did of the United aid, Embassy Tehran, States counsel Iranian abet and the said Terrorists Iran. (4) premises within The said Iranian of the aforesaid United Terrorists within the premises Embassy conspiracy Embassy States of the United the unlawful de- States in Teh- above; object ran continued to scribed that to effect the confine force and violence against conspiracy, their will the above described unlawful excess 50 citizens of during all defendants conspiracy, the course aforesaid members the official Embassy staff performed following did States in Iran. (5) acts, The said Iranian and other Terrorists overt wit: continued to hostages confine as same 50 United OVERT ACTS threaten, day citizens threaten, did 23rd Within few weeks before the and continue to December, 1979, Philip Agee telephone had their trial and execution. notes statistics (1901); 1473, Foreign vided to the Senate 511 Proclamation No. Relations Commit- Gen. that, (1918); during hearings Fed.Reg. apart tee 40 Stat. 1829 in 1957 showed conduct,10 with charged criminal but he inapposite measures are and un- has but such implicit authority on the issue of persuasive charged not been violation law. foreign policy revoking to invoke national Department’s The letter State during peacetime. See Kent considerations passport charge. no such Under the makes Dulles, at at supra, v. 357 U.S. S.Ct. absent a formal enough, decisions it is not Further, as illustrated Su- Agee’s allegation activity, of criminal in Kent v. preme decisions Court’s by some to bor- conduct be considered Zemel v. supra at at We are bound the law der on treason. Rusk, at supra U.S. as we find it. establishing congressional the criterion for judgment de- of the District Court imposition assent inaction is the actual 51.70(b)(4) invalid and claring 22 C.F.R. § mere assertion of of sanctions and not the Agee’s passport ordering restoration power. “[0]nly the clearest . evi- affirmed, pending appeal is stay is legislative past dence administrative and [of vacated. practice] permit will this Court to consider ordered. So Congressional silence to be a substitute for explicit legislative affirmative action limiting important the free exercise of MacKINNON, Judge (dissenting). Circuit rights.” Rogers, v. 344 F.Supp. Woodward The issue for determination is whether proof lacking at 985. here. Such State, regulations We conclude that 22 C.F.R. 51.- under Secretary which the of State revoked 70(b)(4) promulgated by Secretary passport Philip Agee, are unconstitu- against Agee and enforced State without applied. Agee, tional their face and as a requisite express implied authoriza agent Intelligence former of the Central Congress.9 Secretary may tion of not (CIA), Agency concedes in this case that his Agee’s passport revoke unless international travel activities “have caused so, right authorized him to do for “the damage serious constitutionally protected travel abroad” is foreign policy of the United States” subject regulation “pursuant only to that his “stated intention to continue such law-making Congress.” functions of the activities threatens additional State, Aptheker See 9, 29) (App. same kind.” The District 500,505, 1659, 1663, 12 84 S.Ct. L.Ed.2d grounds may be Court held that while such (1964); Dulles, supra Kent v. adequate support revocation 78 S.Ct. at 1119. during an emergency, they are not ade- 51) quate “peace-time.” Supreme The decisions of the Court This permit Agee’s pass significance would the revocation of overlooks the of the enactment if port by Congress he were indicted or otherwise in 1978 which extended the hold, ishing 9. Because we so we need not consider the unauthorized dissemination of cer- regulation types constitutional attacks on the tain ing of classified includ- information” application and its to him based on the First imposes prison “18 U.S.C. years $10,000 and Fifth Amendments. term of 10 and a fine for wilfully types knowingly publishing certain Dulles, supra, 10. See Kent v. U.S. at 127- of classified information” and “18 U.S.C. § 28, 78 S.Ct. at 1118-1119. 22 C.F.R. 51.- punishable which makes it a criminal offense by 70(a)(1) (1979) provides for the denial or revo prison to communicate national de- life applicant cation of a if “[t]he foreign government.” fense to a information subject outstanding

Case Details

Case Name: Philip Agee v. Edmund S. Muskie, Secretary of State

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 5, 1980

Citation: 629 F.2d 80

Docket Number: 80-1125

Court Abbreviation: D.C. Cir.