Haig v. Agee

PETITIONER:Haig
RESPONDENT:Agee
LOCATION:U.S. Department of State

DOCKET NO.: 80-83
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 453 US 280 (1981)
ARGUED: Jan 14, 1981
DECIDED: Jun 29, 1981

ADVOCATES:
Melvin L. Wulf – Argued the cause for the respondent
Wade H. McCree, Jr. – on behalf of the petitioner — rebuttal

Facts of the case

In 1974, Philip Agee, a former employee of the Central Intelligence Agency, announced a campaign “to fight the United States CIA wherever it is operating.” Over the next several years, Agee successfully exposed a number of CIA agents and sources working in other countries. When Secretary of State Alexander Haig revoked Agee’s passport, Agee filed suit claiming that Haig did not have congressional authorization to do so. Agee also claimed that the action violated his right to travel, his First Amendment right to criticize the government, and his Fifth Amendment Due Process rights.

Question

Did the President, acting through the Secretary of State, have the constitutional authority to revoke the passport?

Warren E. Burger:

We will hear arguments next in Muskie v. Agee.

Mr. Solicitor General, I think you may proceed when you are ready.

Wade H. McCree, Jr.:

Mr. Chief Justice, and may it please the Court:

This case presents the question whether the President of the United States acting through the Secretary of State has the authority to revoke the passport of an American citizen whose international travel activities concededly have caused and will continue to cause serious damage to the national security and to the foreign policy of the United States.

The jurisdiction of this Court is found in 28 U.S.C. 2254(1), and the facts that give rise to this controversy may be succinctly stated.

For 11 years, from 1957 until 1968, respondent, an American citizen, was employed by the Central Intelligence Agency in the course of which employment he took an oath which this Court considered in Snepp recently, not to divulge, except upon prior approval, any information gained in the course of his employment.

During the course of his employment he became acquainted with the techniques of intelligence gathering of the Central Intelligence Agency, and learned the identities of many covert operatives who were employed by or utilized by that agency.

Many of these persons are still employed abroad by the agency.

In 1974 respondent publicly announced his intention to disrupt and to destroy the Central Intelligence Agency.

I’d like to direct the Court’s attention to Footnote 2 on page 3 of our brief in which, in an extraordinary press release in London on October 3, 1974, he said… and I’ll just mention the first paragraph:

“Today I announced a new campaign to fight the United States CIA wherever it is operating. “

“This campaign will have two main functions: First, to expose CIA officers and agents and to take the measures necessary to drive them out of the countries where they are operating; secondly, to seek within the United States to have the CIA abolished. “

Is that in the record?

Wade H. McCree, Jr.:

It’s in an affidavit that was filed with cross-motions for summary judgment in the district court.

Byron R. White:

And not controverted?

Wade H. McCree, Jr.:

And not controverted.

Potter Stewart:

So it is in the record.

William H. Rehnquist:

General McCree, when was the respondent issued his passport?

Wade H. McCree, Jr.:

I believe his passport… I can’t answer that precisely without reference to the record, but his passport was issued, I believe, before he terminated his employment, which would be 1968, because… I’m not certain.

William H. Rehnquist:

Before the issuance of the press release?

Wade H. McCree, Jr.:

Before the issuance of the press release.

But I can’t tell you specifically, Mr. Justice Rehnquist.

I can furnish that if it becomes relevant.

The respondent has traveled abroad extensively from his current residence in the Federal Republic of Germany, and is purported to identify CIA agents, employees, and sources in several countries.

These activities have resulted in a number of understandable consequences, including his exclusion from four West European countries because of these activities.

On one occasion his coauthor of a book in Kingston, Jamaica, identified 15 reported CIA agents whose homes… the homes of two of which were violently attacked by armed men subsequent to the disclosure.

William H. Rehnquist:

General McCree, may I ask you this question, which perhaps I ought to know the answer to but don’t.

What is the purpose of a passport?

It’s been my own experience in the couple of times I’ve been abroad other than in the Army that you don’t need a passport to get out of this country.

Wade H. McCree, Jr.:

A passport is currently required both to enter and to leave the United States under an Act of Congress in 1978, unless the President provides otherwise by rule.

Wade H. McCree, Jr.:

And he has provided otherwise by rule with reference to any country, I believe, in this hemisphere except Cuba, and certain Western European countries do not require it either.

But there is such a statute–

Potter Stewart:

And with reference, I think, to all members of the Armed Services who leave the country under orders, because they’re ordered to.

Wade H. McCree, Jr.:

–And that would of course–

Potter Stewart:

A soldier doesn’t need a passport.

Wade H. McCree, Jr.:

–Of course he does not.

Potter Stewart:

To be sent to West Germany.

Wade H. McCree, Jr.:

And that’s, of course, not inconsistent, either, with the presidential rule which exempts non-military personnel from leaving the country.

William H. Rehnquist:

Do you think that if the President should appoint Mr. X as his ambassador plenipotentiary to the Middle East and direct the Secretary of State who is his employee to issue a passport to him, that Congress could prohibit the issuance of that passport?

Wade H. McCree, Jr.:

I think not, and I’m confident he could not, and it may be that there is a general rule which would exclude a person.

Certainly, the authorization vested in the President in the Travel Control Act of 1978 would more than cover that, because the President can exempt from the operation of this statute, which forbids departure and reentry without a passport, according to rules and regulations that he might promulgate.

There are… to reply to Mr. Justice Rehnquist’s first question, the passport as I understand it serves two purposes.

First, the purpose of identifying the bearer as a citizen or a national of the issuing nation; and second, to request free passage for him from a foreign nation as well as the efforts of the foreign nation to facilitate his travel.

Warren E. Burger:

In its origins, Mr. Solicitor General, was it not in effect a letter of introduction from the President of the United States?

Wade H. McCree, Jr.:

It was essentially that, Mr. Chief Justice.

Warren E. Burger:

And are there not extant passports given 190 and 180 years ago that were personally signed by the President?

Wade H. McCree, Jr.:

There very well may have been because before 1856 the Congress did not enter this area of passport control at all.

Before 1856, the first passport act, the President of the United States, the Secretary of State, and indeed other persons, including governors, mayors, and in some instances notaries public executed, issued passports, and the purpose of the Act of 1856, as we point out in our brief, was to restrict the issuance just to the Secretary of State, acting under the President of the United States, under such rules and regulations as he might promulgate.

Potter Stewart:

But even after 1856, for many years, almost a century or more, a passport was not a travel control document as such, was it?

Wade H. McCree, Jr.:

That’s exactly right, and except in time of war, there were few instances when it occurred.

As we show historically in our brief, in the War of 1812, for example, for the first time that we could trace, a passport was required for travel control, and this applied to persons who had crossed the enemy lines.

I think this was in 1815.

The second time I believe it happened was at the time of the Civil War, when again a travel control statute was enacted.

The third time was 1918, just after the First World War, when again a travel control statute was issued.

And part of our argument, of course, is that when these travel control statutes… and I could take the others from 1918.

There was 1941, and 1952, and then 1978.

When each of these travel control statutes was passed, they assumed that the President would be issuing and refusing to issue passports, because a travel control act would make sense to require a passport if it didn’t emanate from someplace, nor would it make sense if there was not the power to revoke or, indeed, to decline its issuance.

And we contend that this is evidence that the Congress intended the Secretary of State to have the authority which we insist he possessed here to revoke respondent’s passport.

Potter Stewart:

Well, on the other hand, you can kind of turn that argument around and say that so long as a passport was no more than a letter of introduction, so to speak, that maybe it was in the discretion of the President not to give such a letter to anybody whose morals he didn’t like, but it wouldn’t affect that person very much.

Wade H. McCree, Jr.:

That’s correct, and there have been instances when the President has endeavored to do that, just because he didn’t approve of someone’s political beliefs, for example.

Potter Stewart:

Right.

Wade H. McCree, Jr.:

And that’s the Kent case, where this Court without reaching the constitutional contention that was made there, held that a passport could not be denied a person because of his political affiliation.

And later when the Congress attempted to do that, in Aptheker and Dayton this Court determined that it was unconstitutional to do it.

We’re not contending for thought control, or the control of associations here.

We’re contending that when a citizen’s activities, not his thoughts, abroad are causing or are likely to cause serious damage to the national security and the foreign policy of the United States, that the President has the power not to issue the passport or, if having issued it, to revoke it.

That’s exactly what happened in this case when in December, 1979, just a month after the seizure of the hostages in Teheran, and after this extraordinary statement at a press conference by the respondent, the Secretary of State notified respondent that his passport had been revoked and told him that he was entitled to a hearing under the appropriate regulation, and offered to hold an expedited hearing in West Germany where respondent lives.

Potter Stewart:

And in this case the effect of the revocation of the passport was to bring the man home and make him stay there?

To his home, back in our country?

Wade H. McCree, Jr.:

This would be the purpose of it.

Or certainly to deprive him–

Potter Stewart:

And that wouldn’t have been the effect of the revocation of a passport in the 19th century?

Wade H. McCree, Jr.:

–Without a travel control; that’s correct.

Potter Stewart:

In the 19th century?

Wade H. McCree, Jr.:

Without a travel control statute, concomitant travel control statute, which we say must be considered in pari materia with this passport control.

John Paul Stevens:

What, as a practical matter, happened when it was revoked?

Did he turn it in and did he come back to the United States?

Does the record tell?

Wade H. McCree, Jr.:

I’m advised that he went to the consulate where he tendered it for validation, and it was taken up by the employee at the consulate, and he was given instead an identification card which would permit him to return home, but he cannot use for extended travels, and so physically his passport has been cancelled.

John Paul Stevens:

But isn’t the question whether he can use that card for extended travel a question of whatever law he, the country he seeks to travel to or from?

Wade H. McCree, Jr.:

It may be, because another country can of course, a sovereign country can have its own–

John Paul Stevens:

As far as American law is concerned, the only thing that… it doesn’t prejudice his ability to come back to the United States, and apparently he doesn’t want to do that.

Wade H. McCree, Jr.:

–That’s… well, he may want to do that but in any event he could not–

John Paul Stevens:

But if he did he couldn’t get out again?

Wade H. McCree, Jr.:

–He would not get out again.

Also, it does not identify him as a person who is entitled to the protection of the United States in that country.

And it’s… anyone who’s… as of course the members of the Court have done, who have traveled internationally, recognize that it’s better to be with a passport than without a passport.

That’s the issue… but that’s the only sanction which has been imposed upon him for these activities here.

Byron R. White:

Mr. Solicitor General, is there a specific statute which permits revocation?

Wade H. McCree, Jr.:

There is no specific… there is not.

No, sir.

Wade H. McCree, Jr.:

There is not.

In 1926, July 3, the last of the series of statutes authorizing the President of the United States or the Secretary of State to issue passports, in accordance with rules and regulations, does not contain either the power to refuse or to revoke–

Byron R. White:

How long has there been a regulation which permits the Secretary to revoke?

Wade H. McCree, Jr.:

–We… in our–

Byron R. White:

There is now one, I take it?

Wade H. McCree, Jr.:

–Yes, the current one, I believe, was enacted in 1968, but there have been regulations and rules of the Department of State going back before the statute of 1856.

Byron R. White:

With respect to revocation?

Wade H. McCree, Jr.:

With respect to denial and revocation.

Byron R. White:

Covering both?

Wade H. McCree, Jr.:

Some of them.

We have instances in our brief.

For example, on page 25 of our brief, where we discuss the Passport Act of 1856.

Byron R. White:

Well, has… when was the Travel Act passed, 8 U.S.C. 1185?

Wade H. McCree, Jr.:

The current one was July 3, 1926.

But it’s–

Byron R. White:

And have there been, was there–

Wade H. McCree, Jr.:

–It’s the successor of the Act of 1856.

Byron R. White:

–And have there been… has that been reenacted since 1926?

Wade H. McCree, Jr.:

It has not.

The current Act is the 1926 Act, the Passport Act.

Byron R. White:

But prior to that, or at least since that, there have been, you say, express regulations permitting revocation?

Wade H. McCree, Jr.:

Since that there have been several regulations and rules promulgated.

Byron R. White:

And before that?

Wade H. McCree, Jr.:

And before that.

We set some of them out on page 25 of our brief, and 26; again on page 29 and 30 of our brief; again on pages 35 and 36 of our brief.

Byron R. White:

And what about the 22 U.S.C. 211(a) which authorizes the Secretary to grant passports?

Has that been reenacted recently?

Wade H. McCree, Jr.:

Not since 1926.

But as we show–

Byron R. White:

Has it been amended since?

Wade H. McCree, Jr.:

–It has not.

But as we show… it has not been amended with reference to the claimed authorization here.

It has been amended, I believe, insofar as it pertains to area, to permissible areas, where the holder of a passport can go.

Byron R. White:

Well, hasn’t the process, though, for issuing passports been revised in the last 20 years?

Wade H. McCree, Jr.:

Oh, from time to time there have been–

Byron R. White:

I mean, don’t you… didn’t you used to be able to get it at some district courts?

Wade H. McCree, Jr.:

–Oh, yes, it’s been changed several times, and our point, and our argument is, that with the changes, as Mr. Justice White has pointed out, where the delegated power to be issued from courts to passport offices and so forth, the Congress being aware of this practice by the Secretary of State has never seen fit to withdraw the power to deny the issuance on the one hand, or to deny the power to revoke a passport once issued on the other, for the reason involved here, and that is the national security of the country, which–

William H. Rehnquist:

Do you think that the Congress would have the authority to do that?

Take this hypothetical, that the Congress decides that there are just too many people leaving the country and traveling around and as a result we’re having to provide too much protection in the way of military force abroad, because they’re getting into trouble.

So we don’t want anybody leaving the country and therefore we forbid the issuance of passports.

Do you think–

Wade H. McCree, Jr.:

–That would raise a constitutional question, at a minimum, because this Court has held that the right to international travel is a constitutionally protected right, although entitled to lesser protection than intrastate travel.

William H. Rehnquist:

–It’s also held in Curtiss-Wright that the President is the sole organ of execution in the area of foreign affairs, is it not?

Wade H. McCree, Jr.:

Well, that, of course, is the separation of powers argument, which would also be involved were there to be such a situation as the Court has propounded.

William J. Brennan, Jr.:

Well, I gather, Mr. Solicitor General, that as to the subject of revocation, insofar as there are any constitutional implications, it’s irrelevant that Congress has not expressly given the Secretary of State power to revoke?

Wade H. McCree, Jr.:

Well, I would contend that.

But we are not claiming for the purposes of this litigation the inherent power to revoke, because we–

William J. Brennan, Jr.:

Well, you’re not suggesting either, are you, that the power to revoke depends upon some statutory authority?

Wade H. McCree, Jr.:

–Not at all, but we’re willing to address this question as the Court of Appeals addressed it, which was to see whether the Congress impliedly granted the authority to revoke when it granted the authority to grant.

William J. Brennan, Jr.:

And so far, at least, knowing that there were such regulations, it never did anything to–

Wade H. McCree, Jr.:

It never took any steps.

William J. Brennan, Jr.:

–In any way modify or repeal them or anything else?

Wade H. McCree, Jr.:

It never did with reference to either of these matters.

Potter Stewart:

And it most recently amended the statute in 1978, didn’t it?

Wade H. McCree, Jr.:

In 1978 it amended the Travel Control Act.

Potter Stewart:

And also limited the Secretary’s power–

Wade H. McCree, Jr.:

And limited the area–

Potter Stewart:

–On area restrictions.

Wade H. McCree, Jr.:

–And it did not do this, being fully aware of these matters.

William J. Brennan, Jr.:

So that the statutory authority is requisite; if it is at all, it’s there.

Wade H. McCree, Jr.:

This is certainly our contention.

The court below followed that analysis to see whether there was congressional grant of authorization by implication, because concededly it is not expressly there, and it found that there was not because there was not what it regarded as a consistent and unequivocal practice, which we believe is just blinking at the history which we set forth in our brief, and which the dissenting judge on the Court of Appeals for the District of Columbia set forth with great feeling in his dissenting opinion.

The court below did not reach the constitutional questions that respondent raised, and we don’t think these constitutional questions are substantial.

Respondent here is not being punished for speech or association, but for activity, for, as he put it best in his own press release,

“for seeking to disrupt and destroy. “

William J. Brennan, Jr.:

What would you call those activities?

Political activities?

Wade H. McCree, Jr.:

They are political activities and more.

They are certainly activities creating serious danger to the national security.

William J. Brennan, Jr.:

Incidentally, in that connection, Mr. Solicitor General, I notice in Footnote 7 of the Court of Appeals’ opinion, a footnote at 14a which recites, based on statistics supplied by the Secretary, that in 1955 21 passport applications were refused, and in 1956 ten such applications refused because the applicants were “participants in political affairs” Is there any record as to what the particular participation was in those instances?

Wade H. McCree, Jr.:

In some instances there are, Mr. Justice Brennan.

In others, there are not.

There was a period when what is perhaps this century’s “communist” and last century’s syndicalist or anarchist, where passports were denied for reasons of–

William J. Brennan, Jr.:

Well, Kent v. Dulles rather–

Wade H. McCree, Jr.:

–But Kent… that’s right.

William J. Brennan, Jr.:

–Sort of required at that–

Wade H. McCree, Jr.:

Kent v. Dulles, and Aptheker, and Dayton, threw all of that out.

William J. Brennan, Jr.:

–Well, does this case involve something more, like Kent v. Dulles, or are the areas of restriction similar?

Wade H. McCree, Jr.:

No, this case involves identifying a covert employee, an undercover employee of our intelligence service, and leaving him to the tender mercies of whatever might happen to a person so identified in a country where we haven’t the power to protect him.

Thurgood Marshall:

But he did nothing other than words.

Wade H. McCree, Jr.:

That’s correct.

He did nothing other than words, but these words were as deadly as bullets.

In Kingston, Jamaica, after the coauthor, his coauthor of a book, identified 15 agents, the homes of two of them were attacked violently by armed men, and if words will precipitate that and they’re uttered with the knowledge that they will–

Thurgood Marshall:

Well, could he be charged with a crime if he were in the United States and said that?

Wade H. McCree, Jr.:

–He might.

I suppose a holdup man who says, stick ’em up, and maybe doesn’t brandish a gun at all–

Thurgood Marshall:

If he doesn’t have a gun, I don’t know what crime he committed.

Wade H. McCree, Jr.:

–Well, I don’t know, if he puts a person in fear of his life and extracts his wallet from him… well–

Thurgood Marshall:

I’m not willing to go that far afield.

I’m willing to say, if he talks over here the exact same words he’s charged with talking over there, you couldn’t do anything to him.

Wade H. McCree, Jr.:

–You might not.

But we are not claiming that he committed a crime that’s indictable, that’s an indictable offense.

But we’re claiming that these are activities that go beyond pure speech.

This is not–

Thurgood Marshall:

But that are not punishable here?

Wade H. McCree, Jr.:

–It may not be punishable, we’re not contending that it’s punishable here, but we’re saying that it creates a serious–

Thurgood Marshall:

Then you have to say that taking his passport is not punishment.

Don’t you have to say that?

Wade H. McCree, Jr.:

–It’s a form of punishment, but it’s not criminal punishment.

It’s an implementation of the national security.

If this nation cannot have operatives abroad who can keep it advised of intelligence matters that may affect our security, certainly the safety of every one of us is diminished.

William H. Rehnquist:

General McCree, supposing a person right now were to apply for a passport to go to Salvador, and when asked the purpose of his journey, to say, to denounce the United States policy in Salvador in supporting the junta, however one pronounces it in Spanish.

And the Secretary of State says, I just will not issue a passport for that purpose.

Do you think that he can consistently do that in the light of our previous cases?

Wade H. McCree, Jr.:

I would say, yes, he can.

Because we have to vest these… The President of the United States and the Secretary of State working under him are charged with conducting the foreign policy of the Nation, and the freedom of speech that we enjoy domestically may be different from that that we can exercise in this context.

William J. Brennan, Jr.:

Well, Kent v. Dulles involved, did it not, preaching communist doctrine?

Wade H. McCree, Jr.:

But that’s quite different, perhaps–

Potter Stewart:

I know, but that’s why–

–It involved membership in the Communist Party, didn’t it?

Wade H. McCree, Jr.:

–Well, it was both, as I understand it.

It was membership and policy–

William J. Brennan, Jr.:

There’s a preaching aspect of it, and there, I was thinking about my brother Rehnquist’s hypothetical to you.

Wade H. McCree, Jr.:

–Oh, I think–

William J. Brennan, Jr.:

And their preaching communist doctrine he said you couldn’t refuse a passport to go and do that.

Wade H. McCree, Jr.:

–Because there was no showing, there was no contention–

William J. Brennan, Jr.:

And the difference from going to Salvador?

Wade H. McCree, Jr.:

–There was no contention made that that damaged the national security.

Now, if our national security–

William J. Brennan, Jr.:

How is the Salvador one involved in this?

Wade H. McCree, Jr.:

–Well, it just might, because it might be a provocation that would involve us militarily.

For example… and I’m out of the record in answering this… but just recently two Americans have been killed in Salvador.

Apparently they were some kinds of undercover persons working under the cover of a labor organization, and if this person identified them as not being what they appeared to be but as undercover operatives and it resulted in their deaths, it seems to me a rule that would deprive the President of the United States from–

Byron R. White:

Well, that’s something a little different than Justice Rehnquist’s.

But even if you couldn’t retrieve a passport for the reason Justice Rehnquist suggests, that doesn’t cover this case where the threat is to the lives of other American citizens.

Wade H. McCree, Jr.:

–That’s correct, Mr. Justice White.

If I may, I would like to reserve the balance of my time, if there is any.

Thank you.

Warren E. Burger:

Very well, Mr. Solicitor General.

Mr. Wulf.

Melvin L. Wulf:

Mr. Chief Justice, and may it please the Court:

I’m sorry Justice Rehnquist had to leave because I did just want to start by specifically answering one factual question.

Thurgood Marshall:

He’ll be back before you finish your statement.

Melvin L. Wulf:

I just want to answer one question which you asked the Solicitor General that has to do with when Mr. Agee’s passport was last renewed.

It was last renewed in 1978, which was after that press release, and after his principal book was published in 1975.

This case involves the constitutional right to travel.

William H. Rehnquist:

You say renewed.

Do you also have the data on when it was issued?

Melvin L. Wulf:

I assume it was issued five years previously thereto; I think five years is now the standard period.

Byron R. White:

Well, your affidavit in the record says it was issued March 30, ’73, and expires on March 29, 1983.

Melvin L. Wulf:

That is an error.

It was issued in ’73.

It expired in ’78–

Byron R. White:

And it’s been renewed now until ’83?

Melvin L. Wulf:

–And is renewed–

Byron R. White:

Well, I’m just reading from your affidavit, that’s all.

Melvin L. Wulf:

–It must be a typographical error.

I know that his passport expired, the one that was revoked, expired, was to expire in 1983.

It was issued–

Byron R. White:

That’s what you say.

Melvin L. Wulf:

–Yes.

Oh; I’m sorry.

Yes.

Byron R. White:

But you say it was issued on March 30, ’73?

And do not suggest that it was renewed, but it was?

You said–

Melvin L. Wulf:

It was renewed in ’78; yes.

Because they’re only good for five years.

This case does involve the constitutional right to travel.

According to doctrine by this Court in Kent and Zemel, the power to issue passports is a power that ultimately is within the authority of the Congress of the United States, and Congress must authorize either explicitly or implicitly any curtailment on the right to travel.

The Government, of course, concedes that there’s no explicit authorization in this case, and the task of this Court is to see whether it can divine from the history presented to it by the Government and by ourselves as well whether there is any implicit authorization which has to be based as the Court held in Kent and Zemel on a substantial and consistent administrative practice.

I would like to just summarize our argument in a nutshell and then treat each of the separate arguments individually.

Our first argument is that Kent itself disposes of this case, because Kent, taken together with its companion case Dayton, in fact was a case which dealt with matters of national security and foreign policy considerations.

It was not merely a case confined to speech and association, as the Government would have the Court see it.

Two, should the Court disagree with our analysis about the extent of Kent, then we can show historically that there is a total absence of any substantial and consistent practice, which is required to find that Congress implicitly authorized the regulation involved in this case.

Both of those arguments are supported by the fact that after Kent was decided by this Court in 1958, the then Administration tried very, very hard, and very, very unsuccessfully to secure legislation which would authorize the very kind of authority which it has exercised in this case against Mr. Agee.

And finally, looking around for what the intention of Congress actually is, we come to the amendments in 1978, substantial amendments in 1978, of Section 211(a), which is the fundamental passport authority, and Section 1185, which is the lineal descendent of all of the wartime national emergency provisions.

William H. Rehnquist:

–Mr. Wulf, to what extent do you think that Congress can limit the President’s authority to revoke or grant a passport to someone whom he has previously issued it to?

Melvin L. Wulf:

According to the decision in Kent, he has plenary… Congress has plenary authority.

The authority resides in Congress, it does not reside in the Executive Branch.

William H. Rehnquist:

Do you think that if the President appoints an ambassador to Italy and trouble comes up in Italy and the President summons the ambassador home, that the ambassador can simply stay in Italy and keep his passport, saying I’ve got a right to travel and I’m not going to come home?

Melvin L. Wulf:

Well, he can certainly be deposed and–

William H. Rehnquist:

He wouldn’t be ambassador for long, I’m sure, but–

Melvin L. Wulf:

–Not at all.

Yes.

I think he can refuse to come home.

In that case he would presumably have a diplomatic passport; he might have to turn that one in.

He’d be entitled to reissuance of a standard passport if he was no longer ambassador.

In 1978, explicitly, Congress expressed what its intentions were, and its intentions there were to withdraw whatever authority the Court had allowed it to exercise in the area of geographical restrictions, in the Zemel case; and secondly, it revoked Section 1185 of the Title VIII, which was the travel control statute, and reversed the purpose of that statute 180 degrees and required, although it still requires that passports be used for entry and exit by citizens of the United States, the purpose is not to allow the Executive Branch to exercise travel control over citizens who hold passports, but to facilitate… and that is explicitly what is in all of the congressional history relating to 1185… to facilitate travel of American citizens because of the now general requirement abroad that travelers present passports upon entry to foreign countries.

Warren E. Burger:

–Which of our prior cases, Mr. Wulf, would you think presented conduct and acts comparable to that of the respondent here?

Melvin L. Wulf:

I think that Kent involved the same kind of considerations that are involved here.

That is to say–

Warren E. Burger:

Disclosure of national security information?

Melvin L. Wulf:

–Well, the Kent decision, particularly the Kent dissent; and of course we all remember the history of that period when travel by American communists and communist sympathizers was prohibited, during the ’50s.

All of the expressions, all of the explanations about why that was being done had to do with considerations which were identical to the kind of national security and foreign policy concerns expressed by the Government in this case.

Warren E. Burger:

Did any of the people involved in any of that litigation get themselves involved in releasing classified information of the United States?

Melvin L. Wulf:

The party in Dayton v. United States, which was a companion case to Kent, the basis on which his passport was refused at that time, which led to the decision here, was that it was thought that he had something to do… and I quote from the charges against him… something to do with the Rosenberg espionage ring, and that he was at a meeting somewhere in New York where information was prepared for delivery to a foreign nation.

There was no charge–

Warren E. Burger:

Well, that might be suspicion, founded or not founded, but how does that compare with the statements released by Mr. Agee in the London press conference?

Melvin L. Wulf:

–Oh, I would think they would be worse, Your Honor.

Warren E. Burger:

Worse?

Melvin L. Wulf:

The statements that Mr. Agee released are expressions, political expressions which are protected under the First Amendment.

There’s no First Amendment protection to engage in espionage or sabotage.

I think the Dayton case is worse than the Agee case.

I don’t think the Agee case is bad, but I think that in the Government’s terms Dayton is worse.

Our brief essentially here today is that given the Government’s best case, in its brief, in terms of the historical information which it has provided the Court, that this Court cannot confidently conclude that the Congress has implicitly authorized the power which the Government seeks to exercise here, that the Government’s best case leaves it very doubtful, leaves it very ambiguous, leaves it very uncertain, about whether the kind of implicit authorization which is required has been found, will be found in this case.

And that this Court ought not guess about whether there is any such implicit–

William J. Brennan, Jr.:

Well, might I ask, Mr. Wulf, the same question I asked of the Solicitor General about that information in Footnote 7 of the Court of Appeals’ opinion?

Is that the fact, do you know?

It’s at page 14a of the Petition for Cert. It states that 21 passport applications in ’55 and ten passport applications in ’56 were refused because the applicants were

“participants in political affairs abroad whose activities were deemed harmful to good relations. “

Do you know what those cases are?

Melvin L. Wulf:

–No, I don’t know what they are, and neither does the Government, Your Honor, because there’s absolutely no explanation about those in the documents where they appear.

William J. Brennan, Jr.:

Well, wouldn’t that be significant in terms of the issue you’re now arguing if that were so?

Melvin L. Wulf:

I think they are insignificant, Your Honor, because there’s no explanation about what they mean.

And they’re as insignificant as are the other statistics which the Government has provided to the Court, because of the admixture of the kinds of… I’m looking for the… because of the different kinds of categories under which those various passports were revoked, or refused.

And it’s in our brief, what is lumped together, there were in 1955 refusal of passports in six cases.

At the same time there were persons whose previous conduct abroad has been such as to bring discredit on the United States and cause difficulty for other Americans, gave bad checks, left unpaid debts, had difficulties with police, et cetera.

There’s another category in ’56 which refers to–

William J. Brennan, Jr.:

Well, I agree with you, Mr. Wulf, that we’re not told how many of those 36-odd were bad check, unpaid debt, difficulty with the police, and that sort of thing.

William J. Brennan, Jr.:

The reason I asked the question was to see if we could find out.

Melvin L. Wulf:

–We can’t find out, because they–

Byron R. White:

But that same statement says, there were numerous other refusals for security reasons, in addition to the ones that might be harmful to relations.

Melvin L. Wulf:

–Well, their saying it isn’t proof that it exists, Your Honor, and they can’t produce the proof because… well, they haven’t produced it; perhaps they can but they haven’t here, and they have to rely on the record which they presented to the Court here.

The fact is that I think that those statistics are completely useless because of the totally inadequate description of what they were all about.

I mean, if there are 56 such cases, 55 of them could have been for bad checks and one of them might have been for something related to foreign policy and national security.

But I think that this Court can’t make a decision based upon that kind of data which is just totally insufficient.

Thurgood Marshall:

Am I disqualified to talk–

Melvin L. Wulf:

I’m sorry?

Thurgood Marshall:

–because I know why one of them was, am I disqualified because I know why one of them was?

Melvin L. Wulf:

No, we won’t disqualify Your Honor.

Thurgood Marshall:

You won’t?

John Paul Stevens:

Mr. Wulf, can I ask what your position is with respect to the authority of the Secretary of State to revoke a passport for matters such as writing bad checks, being convicted of crimes, or something of that kind, non-political in context, but is there authority for the Secretary to do it?

Melvin L. Wulf:

I think he doesn’t have authority.

John Paul Stevens:

He does not have?

Melvin L. Wulf:

That’s right.

If that was done abroad, if it’s not a crime within the United States… it might be, under some statute; I wouldn’t want to say conclusively… but if it’s according to Kent, there are only two grounds upon which the Executive Branch can refuse to issue passports.

One, whether or not the applicant is a citizen; and two, whether the applicant is trying to escape the foils of the law, as the opinion put it.

It’s pretty clear that what they mean is whether the applicant has committed a crime within the United States.

John Paul Stevens:

Well, do you agree that that’s a proper basis for revocation of a passport, and if so, what’s the authority for that?

Melvin L. Wulf:

The authority for that is that Kent found that that was–

John Paul Stevens:

Did Kent create an authority that did not previously exist?

Melvin L. Wulf:

–Kent found the authority when it hadn’t been previously looked for.

John Paul Stevens:

Where did it find it?

Melvin L. Wulf:

In history.

John Paul Stevens:

In history, rather than in any written regulation or statute?

Melvin L. Wulf:

Absolutely; absolutely.

Because the only statute is 211(a) which broadly confers the power to issue passports–

John Paul Stevens:

I’d sort of like to figure out where the thing started.

I mean, where did the original power revoke for that reason come from?

John Paul Stevens:

There must have been a first case, when there would have been no prior history to justify it.

Melvin L. Wulf:

–There were first cases in the 19th century which are described in one or another of the briefs before the Court.

Byron R. White:

Well, did Kent involve a revocation?

Melvin L. Wulf:

Kent was a refusal.

Frankly, I lump them together, Your Honor.

Byron R. White:

Well, I know, so you do say that despite the absence of any express power to revoke in the Secretary, the Secretary at least for some reason may revoke a passport?

Melvin L. Wulf:

I wouldn’t deny that.

We haven’t argued that there’s… we haven’t argued a distinction between a refusal to issue and a revocation.

Byron R. White:

And if he can refuse for a reason he can revoke for the same reason?

Melvin L. Wulf:

We wouldn’t contest that; no.

William J. Brennan, Jr.:

Well, are you suggesting now, Mr. Wulf, as in Kent, that Mr. Agee’s activities have First Amendment protection?

Melvin L. Wulf:

Yes.

William H. Rehnquist:

Well, then you reject–

Melvin L. Wulf:

But I go beyond that, of course, because I think Kent is broader than merely a First Amendment case.

We believe that Kent and Dayton, taken together, involve the same kind of national security-foreign relations concerns which are–

William J. Brennan, Jr.:

–I know, but what was the constitutional protection for whatever the activities were that were involved in Kent, wasn’t it in every instance the First Amendment?

Melvin L. Wulf:

–Yes.

William H. Rehnquist:

You reject the Court of Appeals’ distinction, then?

That although there may be authority not to issue, there is no authority to revoke?

Melvin L. Wulf:

We don’t argue the distinction about that, Your Honor.

Lewis F. Powell, Jr.:

Mr. Wulf, is it your position that the First Amendment protects everything that Mr. Agee is said to have stated in his press release in London in 1974, including the exposing of CIA agents abroad?

Melvin L. Wulf:

Yes, sir.

It is our position that that is–

Potter Stewart:

There is no First Amendment in that there’s no written constitution in England.

Melvin L. Wulf:

–Oh, it’s protected with respect to American law.

Lewis F. Powell, Jr.:

Of course.

Melvin L. Wulf:

Yes.

Lewis F. Powell, Jr.:

But even if exposing the agents, as the Solicitor General has argued, resulted in their death, is that a proper exercise of the First Amendment?

Melvin L. Wulf:

There is no claim at all here that his revelations have resulted in anybody’s death.

In fact, there’s a specific disclaimer in one of the affidavits that’s in the record that nothing that he has said has resulted in the death or injury of any member of the CIA.

Melvin L. Wulf:

And that’s at 116a of the Petition for Cert.–

Lewis F. Powell, Jr.:

I’m not suggesting that there is proof of an agent dying as a result of Mr. Agee’s disclosures; I just don’t know.

But I would think the occupation is sufficiently hazardous without having one’s name publicly revealed.

Melvin L. Wulf:

–Well, as you presumably know, Your Honor, there has been attempts continually being made for the last year or two in Congress to adopt a statute which would make it a crime to identify CIA and other covert action–

Lewis F. Powell, Jr.:

It’s very difficult to draw that sort of legislation.

Melvin L. Wulf:

–And the Congress has been unsuccessful in doing it, and no bill has been acted on, no statute has been adopted.

Lewis F. Powell, Jr.:

But if it adopted–

Melvin L. Wulf:

Until then, if such a statute should be adopted, I dare say that the question of constitutionality will be here soon enough.

In the meantime, I believe that that kind of identification is indeed protected by the First Amendment.

–Well, Mr. Wulf, suppose that–

Lewis F. Powell, Jr.:

–Even if the statute is otherwise valid?

Not void for vagueness?

The First Amendment protects a right to disclose publicly secret agents of the United States wherever they may be?

That’s your position?

Melvin L. Wulf:

In general that is my position.

In particular, I would say that Mr. Agee, like Mr. Snepp, would be subject to the same terms of the secrecy agreement, to the same terms of the secrecy agreement that he executed.

And in fact, he us now subject to that agreement.

There is an injunction outstanding against him, which he is complying with.

So whatever… as of the past few months.

So whatever may have been the case before then, he is now bound by that injunction.

Byron R. White:

Mr. Wulf, suppose then that Mr. Agee or somebody else applies for a passport and he says, I know I’m subject to a secrecy agreement but I want to go England and reveal the names of people that I am forbidden to reveal here, and if I go to England I can do it and probably get away with it.

But I fully intend to breach my contract by going abroad.

And the Secretary says, well, awfully sorry, you’re subject to the agreement and you’re not going to get a passport.

Melvin L. Wulf:

I would think that that’s not the remedy.

The remedy is not to deprive him of a passport.

The remedy is to proceed on a contempt citation against him under the injunction.

Byron R. White:

Once he’s in England.

Melvin L. Wulf:

When he comes back, if he comes back.

Potter Stewart:

Well, how can actions taken in England violate the law of the United States?

Suppose he killed somebody at the press conference, could he be prosecuted over here?

Melvin L. Wulf:

No.

Potter Stewart:

That’s a violation of the law of Great Britain.

Melvin L. Wulf:

Yes.

William J. Brennan, Jr.:

Mr. Wulf, I don’t think you’ve answered Mr. Justice Stewart or Justice White.

Melvin L. Wulf:

Well, the answer is that if he has so conducted himself that he is not… has committed a crime which is only a crime by the law of a foreign state, he can’t be, he cannot be prosecuted here.

William J. Brennan, Jr.:

Well, suppose it’s not a crime by the law of the foreign state?

I think that’s Justice Stewart’s question.

Melvin L. Wulf:

If it’s a crime by the law of the United States, he can be prosecuted here, of course.

William J. Brennan, Jr.:

Even though the conduct’s committed abroad, where it’s not a crime?

Melvin L. Wulf:

It might in some circumstances.

I think there are some extraterritorial problems–

Byron R. White:

Well, if it were, if Congress did pass the law you referred to and made it a crime to do that, and a person applied for a passport and the Secretary says, what are you… somehow the Secretary knew and he freely conceded that he was going to go abroad and break that law, could he refuse a passport?

Melvin L. Wulf:

–I said I do not believe so, and I believe his remedy is in the criminal law, or if there’s an injunction, for contempt.

William J. Brennan, Jr.:

Get an injunction before he gets on the plane.

Melvin L. Wulf:

Perhaps they can get an injunction to enforce the injunction against him prohibiting him from revealing information.

But apart from that, I believe that there is no authority to withhold his passport.

Warren E. Burger:

And you think that the in personam restraint of an American court injunction would follow him in London or Beirut or wherever?

An in Personam–

Melvin L. Wulf:

It might well, it might well.

I could see that kind of an injunction which is breached abroad being basis for a contempt citation here.

–Mr. Wulf, putting to one side–

Melvin L. Wulf:

That wouldn’t shock me very much.

I must say, though, that this concentration on the facts of this particular case, I beg your leave, doesn’t have anything to do really with the issue which is before the Court.

I mean, I can understand why the Government has concentrated on the facts in this case in trying to make–

John Paul Stevens:

–Mr. Wulf, let’s put these facts to one side for a moment and put to one side cases in which there are preexisting contracts restraints or violations of law; just the conduct of an American citizen while abroad.

Does the United States have any control over what a citizen may do other than by trying to restrict his right to travel by revoking his passport?

If it has any.

Maybe it has none, which is essentially your position–

Melvin L. Wulf:

–I think it has none unless there is an extraterritorial crime has been committed.

John Paul Stevens:

–But if it has, other than extraterritorial crime, which is a rather… there are instances, of course, but other than that, if it is to impose any meaningful control over what our citizens abroad may do that may impact on national security or anything else, it must be through this device, must it not?

Melvin L. Wulf:

Yes, it must be.

But the issue today is whether Congress declares that it will be.

I mean, that’s the issue today.

John Paul Stevens:

Well, I know, but precisely, the issue is whether the regulation issued pursuant to the statute that Congress did enact was within the power of the President as delegated to the Secretary of State under that statute.

Melvin L. Wulf:

No, I disagree.

The issue is, whether there was any authority for the regulation at all.

John Paul Stevens:

The regulation purports to have been issued pursuant to the statute which says, it gives the power initially to the President, and he’s redelegated it to the Secretary of State.

Byron R. White:

Well, Mr. Wulf, you would like to put Mr. Agee in the same category as any other citizen, and treat him like any other citizen.

I would think you might win with any other citizen and still lose about Mr. Agee.

The logic would be because he is subject to an agreement which you agree binds him.

Melvin L. Wulf:

Well, I don’t think that that has any bearing at all, Your Honor.

Byron R. White:

I know you don’t but he isn’t, in that regard he’s not like just any other citizen.

Melvin L. Wulf:

For purposes of travel I believe he is like any other citizen, and I don’t see how–

Byron R. White:

Well, other citizens aren’t subject to the agreement, though.

At least you have to concede that.

Melvin L. Wulf:

–I concede that, but I also would argue that that agreement is subject to independent enforcement, which has no bearing on the question, the basic question here about congressional authorization.

I mean, obviously, I would like you all to forget about the facts of the Agee case, and I think that you have to and–

Byron R. White:

I suppose you’d take–

Melvin L. Wulf:

–in terms of what the issue is before you.

Byron R. White:

–I suppose you’d take the same position if the secrecy agreement said, nor will I travel abroad to do so?

Melvin L. Wulf:

I might take a different position, but it doesn’t say that, of course, so I don’t have to take any position.

William H. Rehnquist:

I take it all of your answer exclude “in time of declared war”?

Melvin L. Wulf:

We don’t deny that in times of declared war there can be restrictions, limitations imposed on travel which would not be unconstitutional, and of course Congress has adopted such legislation in 1918, 1941, and related legislation in 1952.

But none of that is in effect now, of course, including the 1952 legislation, since that national emergency is no longer in effect.

There is no national emergency.

Our second argument, of course, goes to the question whether there is any proof presented, historical proof presented to you by the Government which would persuade you that there is the necessary consistent history of administrative practice which is necessary to find authorization.

Warren E. Burger:

How many times in the past have there been conduct that is directly comparable to this by an American passport holder?

You were talking about a history, so, if the events never occurred, there wouldn’t be any history.

Are there others?

Melvin L. Wulf:

Well, the Government described seven in its brief, extending from 1906 to 1970, and then, of course, it also lumps together those other–

Warren E. Burger:

Twenty-odd.

Melvin L. Wulf:

–Well, there were 62 in their opening brief.

It turns out to be 100 in their reply brief, of those nondescript cases out of the statistics.

Specifically they refer to seven cases in the last 75 years which they claim as the basis for their support of an administrative practice.

They’re in the brief and it was only one of them, in 1970, which was in fact under the same regulation.

The others weren’t under any regulation at all, as a matter of fact.

It was… they were just under the claimed discretion of the Secretary of State.

As I said in opening, I think that these examples of administrative practice presented to the Court by the Government are far too ambiguous, far too uncertain a basis upon which this Court ought to rest its judgment that they will find implicit authorization.

I think that that–

Byron R. White:

Implicit authorization to do what?

Melvin L. Wulf:

–Implicit authorization for the regulation applied here against Mr. Agee.

Byron R. White:

You mean, to revoke for these reasons?

Melvin L. Wulf:

To refuse passports–

Byron R. White:

Because you agree that there is a power to revoke?

Melvin L. Wulf:

–Yes.

Yes.

Byron R. White:

For the right reasons?

Melvin L. Wulf:

Quite; quite right.

Byron R. White:

And there’s a historical practice of revoking–

Melvin L. Wulf:

Yes.

Byron R. White:

–But not for the reasons claimed?

Melvin L. Wulf:

Precisely; yes.

And with that… and the Court ought not make that decision on the basis of the evidence here.

That decision ought to be, the Court ought to require, in light of the fact that this is a constitutional right, that Congress exclusively say what its intentions are with respect to this kind of power which is asserted in the regulation before the Court.

William J. Brennan, Jr.:

Well, anyway, Mr. Wulf, you would argue that if there were explicit statutory authorization to revoke for this kind of conduct, the statute to that extent was unconstitutional because this kind of conduct has First Amendment protection?

Melvin L. Wulf:

I would make that argument, but then we would deal squarely with the constitutionality in First Amendment terms of the authority which was concededly granted to the Executive Branch.

But today we don’t believe that that authority exists.

I think that the 1978 amendments really settle this case.

There Congress revoked what authority this Court had given to the Government in the Zemel case regarding geographical restrictions, which certainly shows an intent to withdraw whatever authority the Executive Branch had with respect to national security and foreign policy considerations.

We believe that the decision below should be affirmed.

Warren E. Burger:

Mr. Solicitor General, do you have any?

Wade H. McCree, Jr.:

Mr. Chief Justice, and may it please the Court:

If I have 60 seconds left I’d like to call the Court’s attention to two matters.

First, in response to counsel’s claim about the effect and the intent of the 1978 amendments, I would refer you to page 47 of our brief, where we set forth the Senate report which makes it clear, and I read:

“The Committee recognizes clearly that the passport authority should not be restricted in any way which would limit the President’s ability to control the departure of United States citizens to foreign countries when such travel is inconsistent with a greater Government interest. “

The other matter to which I would like to direct the Court’s attention, if I may, is on this seven-page reply memorandum that we filed to the Petition for Certiorari, where we set forth the colloquy conducted by the court and counsel in the district court, where counsel under very careful questioning concedes that for the purpose of the determination of the validity of this regulation, he concedes that his client was causing or likely to cause serious damage to the national security.

And I suggest, therefore, that he admits that he is fully within the ambit of this regulation which means that this Court needn’t decide the question whether his conduct was within the regulation.

Of course, it leaves the constitutional question as well as the statutory authorization question to be determined.

And with that, we would submit our case on the briefs.

Warren E. Burger:

Thank you, gentlemen, the case is submitted.

Wade H. McCree, Jr.:

Thank you.

The honorable court is now adjourned until Monday next at 10:00.