HAIG V. AGEE, 453 U.S. 280 (1981)

Philip Agee, a disillusioned former agent of the Central Intelligence Agency, wrote a book while living abroad in which he denounced covert operations and published the names of undercover agents. The U.S. State Department responded by revoking Agee’s passport, and he brought suit, claiming that the revocation was not authorized by law. Kent v. Dulles (1958) had earlier struck down on that ground a regulation denying passports to communists.

The lower courts held for Agee, but the Supreme Court held, seven to two, that a revocation on grounds of ‘‘substantial reasons of national security and foreign policy’’ was implicitly authorized because the State Department had publicly claimed to possess such a power and Congress had failed to prohibit such actions.

Since Congress is extremely unlikely to legislate in response to a mere unexercised claim of executive power, this approach goes far toward abandoning the distinction between authorized actions and actions on which the law is silent.

Kent v. Dulles was not expressly overruled. There are several important distinctions. First, Kent involved a whole class of people, not all of whom would plausibly cause harm by traveling abroad, while Agee had already sought to cause harm. On the other hand, the civil liberty at stake in Kent was the right to obtain a passport, while Agee’s interest was in his right to re-enter the United States. Kennedy v. Mendoza-Martinez (1963) had forbidden revoking Citizenship in such a case, yet here the consequences were almost equally severe.

DANIEL N. HOFFMAN

References and Further Reading

• Agee, Philip. Inside the Company: CIA Diary. New York: Bantam, 1984.

Cases and Statutes Cited

• Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)
• Kent v. Dulles, 357 U.S. 116 (1958)