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(7) In October 1983, Nicaragua issued Agee a passport to replace the Grenadian passport that had been revoked following the U.S. invasion of Grenada.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 an interview with Agee, identified an alleged CIA official in Denmark.
(11) In October 1982, Agee conducted a one-week training course in Grenada. He lectured on CIA operations in Latin America, funding of covert operations, and means of identifying CIA agents.
(12) Agee appears on the masthead and occasionally prepares articles for Soberania, a journal funded by the Nicaraguan government and aided by Cuban intelligence, which sought to expose CIA personnel.
On June 29, 1987, Agee's counsel received a letter from Deputy Assistant Secretary of State for Passport Services Harry L. Coburn. The letter stated that the Secretary had determined that the material submitted by counsel did not demonstrate the requisite changed circumstances to warrant issuance of a passport. The letter then noted that on April 30, 1987, Agee had requested a hearing. Coburn proposed to hold a hearing on July 20, 1987, in Hamburg.
C. Developments pre-hearing
By letter dated June 30, 1987, Agee's counsel demanded immediate issuance of a passport on the ground that the Department had violated 22 CFR § 51.81, which requires the Department to conduct a hearing or issue a passport within 60 days of denial.
Writing to Agee's counsel on July 30, 1987, Coburn rejected the argument that 22 CFR § 51.81 had been violated and agreed to Agee's counsel's request, in a July 7 letter, to defer the hearing date.
By letter dated August 17, 1987, the Department informed Agee's counsel that the Assistant Secretary Clark had designated Michele E. Truitt as the hearing officer for the case and that Truitt was the person with whom counsel should communicate regarding the logistics of the hearing. The letter also acknowledged counsel's request for a "statement of reasons" for the denial and then disclosed for the first time the twelve items in the Webster appendix, adding to the information in the appendix that "reliable sources" provided item (8), i.e. the allegation that Agee was an agent of Cuban intelligence. The letter concluded by tracking the conclusions set out in the Webster letter. The last paragraph then stated:
The foregoing apprises your client of the grounds upon which the Secretary based his determination, and provides sufficient specificity to enable your client to respond thereto at the hearing. In this connection, even assuming arguendo that the Administrative Procedure Act (APA) applies to this hearing -- a notion which the Department rejects -- neither the Department's regulations nor the APA provide for the issuance of subpoenas or other prehearing discovery.
In an August 25, 1987, letter to the hearing officer, Agee's counsel demanded production prior to the hearing of the following documents and information: (1) copies and English translations of the articles referenced in the August 17 letter; (2) copies of the speeches referenced and sources of the transcripts; (3) videotapes of the television broadcasts referenced; (4) detailed information regarding the allegation that Agee was a paid advisor to Cuban intelligence and the identity and addresses of the reliable sources who provided this information; (5) the identity and addresses of the sources of the charge that Agee conducted a training course in Grenada; (6) information detailing the activities of Soberania and Agee's relationship thereto and the identity of the sources of this information; (7) all documents "containing information relevant" to the twelve allegations; (8) confirmation or denial of Agee's claim that evidence intended to be introduced against him was unlawfully obtained, citing 18 U.S.C. § 3504 (counsel attached government documents from the late 1970's indicating that the Justice Department considered prosecuting CIA officials for alleged civil rights violations against Agee); (9) any statement made by any witness the government intended to call, citing the Jencks Act, 18 U.S.C. § 3500; (10) copies of any warrants for electronic surveillance or applications made therefor, citing 18 U.S.C. section 2518; (11) a list of government witnesses and their intended testimony; (12) depositions by Agee's counsel of all prospective government witnesses and of persons with knowledge of the subject matter of government documentary evidence; (13) pre-hearing inspection by Agee's counsel of all government exhibits; and (14) comprehensive information on the hearing officer, including education, jobs, and whether she had any prior experience relating to Agee "to assure ourselves of your neutrality as a hearing officer." Counsel asked that the hearing officer respond to these demands "within a week" and that the government produce the documents "within a few days thereafter."
By letter dated October 7, 1987, Deputy Assistant Secretary Wharton, disavowing any legal obligation to provide any information, stated that further information was being provided "as a matter of administrative discretion." Attached were either photocopies or purported typed translations of various articles, items, interviews and speeches, corresponding to items (1) through (6), (9), (10), and (12) of the Webster letter. One item was attributed to an unnamed "Local Managua newspaper," another to an unnamed "Local evening Managua news program." The name of the Spanish television broadcast cited in item (9) was given as "La Clave."
D. The hearing
A hearing was held October 15, 1987, at the State Department in Washington. At the request of Agee, the hearing was public.
Wharton represented the Department. Agee himself appeared, along with counsel. Neither side offered any witnesses.
The Department's case consisted of the submission to the hearing officer of various documents, including its correspondence with Agee's counsel, the Webster letter, and internal Department cables.
Agee's counsel made a series of preliminary objections. He noted that the government had made no response to his demand regarding illegally obtained evidence pursuant to 18 U.S.C. § 3504 and stated that therefore "the proceedings are fundamentally defective." He "objected fundamentally to [the] entire proceeding" on the ground that sections 51.70(b)(4) and (b)(5) were unconstitutional.
Agee's counsel also presented a long list of objections to the introduction of the various documents in the Department's submission, calling them "totally inadequate, inadmissable, insufficient, unauthentic, a joke as far as nature of evidence is concerned." Specifically, Agee's counsel stated that the photocopied articles and particularly the typed translations, which lacked notations as to who did the translating and under whose auspices they were done, were not adequately authenticated. He speculated that one article "could be something that was composed in the offices of the Central Intelligence Agency over in Langley." He took issue with the attribution of material to unnamed Managua news outlets. He complained that no identification of "Land Og Folk" was provided and speculated that "it may be it's the CIA's magazine, personnel magazine."
Wharton responded that the disputed documents did not constitute the basis of the Secretary's decision to deny the passport. Instead, Wharton stated, the basis of the decision was the June 26 action memorandum from Clark to Shultz and the "enumeration" of the twelve items therein. He had asked the hearing officer to admit the documents only to demonstrate that the Department met Agee's demands for production. The hearing officer accepted the exhibits with the objections noted, and stated that the objections would be addressed "at a later time."
Agee's counsel, upon confirmation that the Department had concluded its case, moved that the hearing officer "declare the case against Mr. Agee is unproven, that the Department of State . . . has failed to carry its burden of proving that Mr. Agee violated any of the applicable regulations which is the basis upon which the Secretary of State has refused to issue him a passport." He contended that the June 26 action memorandum was inadmissable in that it was based entirely on the June 20 Webster letter, which itself was a "farce . . . a joke" based on "triple hearsay."
Agee's counsel only briefly addressed the various accusations in the Webster memo. He asserted without elaboration that the claims of violations of Agee's Secrecy Agreement, "even if it were true, I don't think you can constitute violations." He described the allegations regarding links to Cuban intelligence and the training course in Grenada as "a tissue of lies."
The only allegation that was directly addressed by counsel was the first, regarding the Geheim article, which counsel demonstrated via documentary evidence was simply a German translation of an article for which Agee had previously obtained CIA approval. Not content with his evidentiary showing on this point, counsel stated for the record that the CIA "is such a clumsy incompetent ignorant agency of Government, its right hand doesn't know what its far right hand is doing. It doesn't have a left hand."
Counsel further accused the Department of violating its own passport regulations at 22 CFR § 51.85, which provide:
The person adversely affected may appear and testify in his or her own behalf and may himself, or by his or her attorney, present witnesses and offer other evidence and make argument. If any witness whom the person adversely affected wishes to call is unable to appear in person, the hearing officer may, in his or her discretion, accept an affidavit by the witness or order evidence to be taken by deposition. The person adversely affected shall be entitled to be informed of all the evidence before the hearing officer and of the source of such evidence, and shall be entitled to confront and cross-examine any adverse witness. The person shall, upon request by the hearing officer, confirm his or her oral statements in an affidavit for the record.
"Who," counsel asked, "is the source of the allegation against Philip Agee that he is reported to be a paid advisor to Cuban intelligence? The source is probably some guy up in the CIA who made it up." Wharton offered no response. Invoking "Alice in Wonderland," counsel concluded that "this whole hearing is a joke. This whole hearing is invalid. This whole hearing is unlawful."
Counsel then stated that the only possible way the fundamental inadequacy of the evidence might be corrected would be to produce CIA director Webster for cross-examination, and he so moved. He repeated this demand several times thereafter.
The hearing officer responded by stating for the first time that she was not the decision-maker. Rather Assistant Secretary Clark would make the decision, after the hearing officer made findings of fact and a recommendation. See 22 CFR § 51.83. The hearing officer also disavowed any authority to compel the appearance of any witnesses. Wharton then stated, in response to Agee's counsel's question, that the Department would not produce Webster for cross-examination.
Wharton then invited Agee's counsel to introduce evidence taking issue with the various charges other than the Geheim article. Counsel responded that "we're not going to dignify what you call evidence as evidence because it's not evidence. It's junk."
Agee then made an unsworn statement, which, at the request of the hearing officer, he subsequently adopted as a sworn affidavit pursuant to 22 CFR § 51.85. Agee's statement included numerous sweeping, angry statements and almost no effort to address the specific charges against him:
I didn't come in here with any illusion that this would be, this whole procedure, not just this hearing, but the whole procedure would be fair and impartial or that common sense in this procedure would prevail. Because I know it won't. . . .