Facts
- Philip Agee, a U.S. citizen and former CIA employee, publicly declared a campaign to oppose CIA operations and expose CIA personnel abroad.
- Agee traveled internationally and publicly identified alleged undercover CIA officers and intelligence sources in foreign countries.
- The Secretary of State determined that Agee’s activities abroad were causing or likely to cause serious damage to U.S. national security or foreign policy.
- In 1979, the State Department revoked Agee’s passport under a regulation permitting revocation on national security or foreign policy grounds.
- Agee was notified of the revocation and informed of the opportunity for an administrative hearing; he did not pursue the administrative process before filing suit.
- The district court ordered restoration of the passport, holding the Passport Act of 1926 did not authorize the revocation; the court of appeals affirmed.
- The Supreme Court granted review.
Issues
- Whether the Passport Act of 1926 implicitly authorizes the Secretary of State to revoke a passport on national security and foreign policy grounds.
- Whether revoking a passport for activities abroad likely to cause serious national security or foreign policy harm violates the First Amendment.
- Whether the revocation unconstitutionally infringes a liberty interest in international travel under the Fifth Amendment.
- Whether the Fifth Amendment requires a pre-revocation hearing before a passport may be revoked for national security reasons.
Decision
- The Supreme Court reversed and upheld the passport revocation.
- The Court held the Passport Act of 1926 authorizes passport revocation based on national security and foreign policy concerns, supported by longstanding executive practice and congressional acquiescence.
- The Court held the regulation was constitutional as applied to Agee because the government’s interests in national security and foreign affairs outweighed the burden on international travel and any incidental effect on expression.
- The Court rejected Agee’s First Amendment claim, characterizing the revocation as directed at harmful conduct facilitated by foreign travel rather than punishment of political views.
- The Court held due process did not require a pre-revocation hearing under these circumstances; post-revocation administrative procedures and judicial review were sufficient given the asserted security risks.
Legal Principles
- Statutory authority to issue passports may include implied authority to deny or revoke passports on the same grounds, absent an express statutory limitation.
- Longstanding, substantial, and consistent executive practice in passport control, coupled with congressional awareness and non-repudiation, can support a finding of implied congressional approval.
- International travel is a protected liberty interest but is subject to reasonable regulation, and it is more readily restricted than domestic travel when tied to national security or foreign policy.
- A passport restriction aimed at conduct likely to cause serious national security or foreign policy harm may be upheld even if it incidentally burdens speech.
- In matters involving discernible national security risks, the Constitution may permit post-deprivation process rather than a pre-deprivation hearing.
Conclusion
The Court held that the Secretary of State had statutory authority to revoke a passport for activities abroad likely to cause serious damage to national security or foreign policy, and that, as applied to Agee, the revocation did not violate the First Amendment, the Fifth Amendment liberty interest in international travel, or procedural due process despite the absence of a pre-revocation hearing.