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AGEE v. BAKER

October 30, 1990

PHILIP AGEE, Plaintiff,
v.
JAMES A. BAKER, SECRETARY OF STATE, Defendant


Gerhard A. Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE

 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. *fn1" 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.

 I. The administrative proceedings

 A. Background

 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, 203 U.S. App. D.C. 46, 629 F.2d 80 (D.C.Cir. 1980), rev'd, Haig v. Agee, 453 U.S. 280, 69 L. Ed. 2d 640, 101 S. Ct. 2766 (1981).

 Meanwhile, Agee had brought a separate Freedom of Information Act case in this Court against the CIA. As part of that action, the Court issued an injunction prohibiting Agee from violating the terms of his secrecy agreement with the CIA executed in 1957. Particularly, the Court enjoined Agee from

 
disseminating, or causing to be disseminated, any information or material relating to the Central Intelligence Agency, its activities, or intelligence activities generally, without the express written consent of the Director of the Central Intelligence Agency or his representative, provided that the Agency review of submitted material be completed within thirty days of submission and that approval for dissemination be withheld only for information which the Central Intelligence Agency determines to be classified.

 The injunction further provided that

 
extemporaneous oral remarks that consist solely of personal views, opinions, or judgments on matters of public concern, and that do not contain, or purport to contain, any direct or indirect reference to classified intelligence data or activities, are not subject to this injunction.

 Agee v. Central Intelligence Agency, Civil Action No. 79-2788, Order (D.D.C. November 21, 1980).

 B. The preliminary passport denial

 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:

 
As I told you in our phone conversation of April 14, 1987, your client, Philip Agee, will shortly be receiving a letter from the Consulate General in Frankfurt explaining that his passport application of January 21, 1987 is denied under sections 51.70(b)(4) and (5) of the passport regulations. *fn2"

 Wharton's letter then stated, "Following is the text of the letter" and in five indented paragraphs quoted the promised forthcoming letter to Agee. The quoted letter invoked 22 CFR § 51.70(b)(5), which permits the Secretary to deny a passport where

 
the applicant has been the subject of a prior adverse action under [22 CFR § 51.70 or 51.71] and has not shown that a change in circumstances since the adverse action warrants issuance of a passport.

 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 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 ...


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