Haig V. Agee - Facts of The Case

Facts of The Case

Philip Agee, was an American citizen residing in West Germany. From 1957 to 1968, he was employed by the Central Intelligence Agency, holding key positions in the division of the Agency that is responsible for covert intelligence gathering in foreign countries.

In 1974, Agee called a press conference in London to announce his "campaign to fight the United States CIA wherever it is operating," declaring his intent "to expose CIA officers and agents and to take the measures necessary to drive them out of the countries where they are operating." Agee and his collaborators repeatedly and publicly identified individuals and organizations located in foreign countries as undercover CIA agents, employees, or sources. The identifications divulged classified information, violated Agee's express contract not to make any public statements about Agency matters without prior clearance by the Agency, prejudiced the ability of the United States to obtain intelligence, and were followed by episodes of violence against the persons and organizations identified.

In December 1979, the Secretary of State revoked Agee's passport and delivered an explanatory notice to Agee in West Germany. The notice advised Agee that his activities abroad were causing or were likely to cause serious damage to the national security or the foreign policy of the United States and of his right to an administrative hearing and offered to hold such a hearing in West Germany on 5 days' notice.

Agee at once filed suit against the Secretary. He alleged that the regulation invoked by the Secretary, 22 CFR 51.70 (b)(4)(1980), was not authorized by Congress and was invalid; that the regulation was impermissibly overbroad; that revocation prior to a hearing violated his Fifth Amendment right to procedural due process; and that the revocation violated a Fifth Amendment liberty interest in a right to travel and a First Amendment right to criticize Government policies. He sought declaratory and injunctive relief, and he moved for summary judgment on the question of the authority to promulgate the regulation and on the constitutional claims. For purposes of that motion, Agee conceded that his activities were causing or were likely to cause serious damage to the national security or foreign policy of the United States. The District Court held that the regulation exceeded the statutory powers of the Secretary under the Passport Act of 1926, 22 U.S.C. 211a, granted summary judgment for Agee, and ordered the Secretary to restore his passport. Agee v. Vance, 483 F. Supp. 729 (DC 1980).

A divided panel of the Court of Appeals affirmed the district court. Agee v. Muskie, 203 U.S. App. D.C. 46, 629 F.2d 80 (1980). It held that the Secretary was required to show that Congress had authorized the regulation either by an express delegation or by implied approval of a "substantial and consistent" administrative practice, Zemel v. Rusk, 381 U.S. 1, 12 (1965). The court found no express statutory authority for the revocation. The Court of Appeals took note of the Secretary's reliance on "a series of statutes, regulations, proclamations, orders and advisory opinions dating back to 1856," but declined to consider those authorities, reasoning that "the criterion for establishing congressional assent by inaction is the actual imposition of sanctions and not the mere assertion of power." The Court of Appeals held that its was not sufficient that "Agee's conduct may be considered by some to border on treason," since "e are bound by the law as we find it." The court also regarded it as material that most of the Secretary's authorities dealt with powers of the Executive Branch "during time of war or national emergency" or with respect to persons "engaged in criminal conduct."

The Court granted certiorari sub nom. Muskie v. Agee, 449 U.S. 818 (1980), and stayed the judgment of the Court of Appeals until its disposition of the case on the grant of certiorari.