Agee v. Baker
| Decision Date | 30 October 1990 |
| Docket Number | Civ. A. No. 90-1350. |
| Citation | 753 F. Supp. 373 |
| Parties | Philip AGEE, Plaintiff, v. James A. BAKER, Secretary of State, Defendant. |
| Court | U.S. District Court — District of Columbia |
Melvin L. Wulf, New York City, William H. Schaap, Washington, D.C., for plaintiff.
David J. Anderson, Vincent M. Garvey, Thomas Millet, U.S. Dept. of Justice, Washington, D.C., for defendant.
This case is before the Court on cross-motions for summary judgment, which have been fully briefed.
The plaintiff, Philip Agee, a United States citizen, complains that he has been denied a passport and that procedures provided by the Secretary of State with respect to his passport application violated the Constitution and federal statutes and regulations.1 He seeks to compel the Secretary to provide him with a "fair hearing ... and/or to issue him a passport." The Court's federal question jurisdiction is properly invoked. The record of Agee's passport proceedings before the Department of State has been filed as exhibits to the motions.
Agee currently resides in Madrid, Spain. He was employed by the Central Intelligence Agency from 1957 to 1968. In 1979, the Secretary revoked Agee's passport on the authority of 22 CFR sections 51.70(b)(4) and 51.71(a), which provide for revocation where "the Secretary determines that the national's activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States."
Agee declined to seek administrative review of the revocation. Instead, he brought an action for declaratory and injunctive relief against the Secretary in this Court. At that time, Agee chose not to contest that he was causing or was likely to cause serious damage to national security and foreign policy but asserted that the Secretary lacked authority to promulgate any regulations under which a citizen's passport could be revoked. Agee also contended that the revocation violated his Fifth Amendment rights to travel and procedural due process and his First Amendment right to free speech. This Court granted judgment for Agee, and the Court of Appeals affirmed by divided vote, but the Supreme Court reversed, upholding the passport revocation. Agee v. Vance, 483 F.Supp. 729 (D.D.C.1980), aff'd, Agee v. Muskie, 629 F.2d 80 (D.C.Cir.1980), rev'd, Haig v. Agee, 453 U.S. 280, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981).
Agee v. Central Intelligence Agency, Civil Action No. 79-2788, Order (D.D.C. November 21, 1980).
On January 21, 1987, Agee applied for a passport at the United States Embassy in Madrid.
By letter dated April 28, 1987, William B. Wharton, Director of the State Department's Office of Citizenship Appeals and Legal Assistance, informed Agee's counsel in New York:
The quotation from the letter to Agee stated:
The Department's action is based upon the fact that you were the subject of passport revocation in December 1979 under 22 C.F.R. 51.70(b)(4). At that time, you conceded that your activities abroad came within the purview of the regulation. You have not demonstrated that your activities abroad since 1979 have changed so that issuance of a passport is warranted. You may submit any evidence of a change in circumstances in writing to the Department of State.... In addition to the foregoing, you are also entitled to a hearing under Sections 51.80 through 51.89 of the passport regulations, copies of which are enclosed. If you desire a hearing you must notify this office within sixty days after receipt of this notice.
On April 30, 1987, Agee's counsel forwarded a response to Wharton's letter, intended as "Mr. Agee's formal submission under Sec. 51.71(b)(5) to show the requisite change of circumstances which requires that a passport now be issued to him." Counsel noted that the specific charges underlying the Secretary's 1979 finding that Agee was a threat to national security were (1) that he had embarked on a program to expose CIA clandestine activities and personnel and (2) that he had violated his Secrecy Agreement. Counsel then stated categorically that Agee had exposed no CIA clandestine activities or personnel at least since December 1979 and that he had not contravened his Secrecy Agreement at least since October 1980. He attached numerous documents indicating that Agee had repeatedly submitted writings to the CIA for prepublication review. The April 30 letter also requested a formal passport hearing pursuant to the regulations "if a passport is not issued to Mr. Agee based upon the information in this letter."
On May 8, 1987, Wharton wrote Agee's counsel acknowledging receipt of the April 30 materials. He further stated:
We acknowledge Mr. Agee's tentative request for a hearing in the event that a passport is not issued to him on the information which you submitted in his behalf. We consider that request to be proper notice under the 60-day time limitation of 22 CFR 51.81.
By memorandum dated June 26, 1987, Assistant Secretary of State for Consular Affairs Joan M. Clark recommended to Secretary of State Shultz that he deny Agee's passport application. Clark concluded that the submissions by Agee's counsel did not demonstrate a change in circumstances and moreover was contradicted by a letter received from the Director of Central Intelligence, William H. Webster, on June 20, which was attached to the Clark memorandum. The Webster letter asserted that Agee had repeatedly violated this Court's injunction. Webster also alleged that Agee "has served as a paid consultant to, and otherwise assisted, one or more hostile intelligence services, and that this assistance has included instructing foreign intelligence officials in techniques for identifying and countering U.S. intelligence personnel and their activities." An appendix attached to the Webster letter listed twelve charges against Agee, as follows:
(1) In early 1986, Agee published an article in the West German magazine Geheim that was not submitted for CIA prepublication review.
(2) In an interview published in the February 18, 1985, issue of the Spanish magazine Tiempo, Agee identified the alleged location of CIA stations in Spain and claimed that the CIA founded Orbe, a Chilean news agency.
(3) In an interview published in the March 19, 1984, issue of the Belgian Communist Party newspaper Drapeau Rouge, Agee accused the CIA of backing Latin American death squads and attributed his purported knowledge to the fact that he had conducted such activities while with the CIA.
(4) In October 1983, at a conference in Nicaragua, Agee called for exposure and harassment of CIA agents and identified the U.S. Ambassador in Managua as the CIA station chief.
(5) In an October 1983 speech televised in Managua, Agee stated that he was "prepared to advise and participate completely in whatever program that has as its goal a counter-attack on the CIA in solidarity with Nicaragua and liberation movements in our America."
(6) As reported in the October 20, 1983, edition of the Mexico City newspaper Uno Mas Uno, Agee, at an October 19 Managua press conference, stated that for each fallen Sandinista, two CIA agents "must fall" and further stated that fifteen CIA officials were working under the U.S. ambassador in Managua.
(7) In October 1983, Nicaragua issued Agee a passport to replace the Grenadian passport that had been revoked following the U.S. invasion of Grenada.
(8) Agee was "reported" in July 1983 to be "a paid advisor to Cuban intelligence" and among his activities advised Nicaragua regarding U.S. intelligence personnel and activities.
(9) In a June 1983 television appearance in Madrid, Agee identified a former CIA Madrid station chief by name and stated that that individual was now directing U.S. policy in Central America. Agee also claimed that the CIA "set up" Soviet officials expelled from foreign posts for espionage.
(10) An article published in the February 14, 1983, issue of the Danish Communist Party newspaper Land og Folk, based on...
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