Philip Agee Is Dead. Should the Precedent Die With Him?

Agee died on Monday in Havana (Times obit here), having lived out his days as a Havana travel agent (and apparently as a US citizen until the end). Among his legacies as a CIA renegade is the legal battle surrounding the revocation of his passport in 1979. In Haig v. Agee, the Supreme Court upheld the action against statutory and constitutional challenges. The Court found the relevant regulation — allowing the Secretary of State to undertake such action where “[t]he 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” — to have been implicitly authorized by Congress, and found its application to Agee to violate neither a right to travel nor to free expression. Then as now, it’s unlawful to depart the United States without a valid passport except in limited circumstances. See the Immigration and National Act § 215(b).

The reg is still with us (22 CFR § 51.70(b)(4)), but I wonder if it’s been used in recent decades. (The most significant expansion of passport revocation involves parents in child support arrearages, which one can take as an riff on revoking passports of criminal flight risks.) These days you can do almost as much damage remotely, at least in an Agee kind of case; it’s not clear how location makes a difference. Anyone that the government would be worried about engaging in some sort of terrorist activity would probably be guilty of some conspiracy-based crime, at least. So it can’t be good for much as a national security tool. Anyone likely to get into other kinds of trouble can just be left to his or her own devices; the U.S. doesn’t have to come running to protect its citizens these days if they get themselves into an international pickle.

As for rights, there’s always doctrine from a Curtiss-Wright platform. But might one be able to make something more of a right of international travel, which might in turn impact the constitutional thinking on the question? Congress amended the passport act in 1978 to better conform with the Final Helsinki Act (which of course was concerned with East Bloc exit controls). The law now provides that “Unless authorized by law, a passport may not be designated as restricted for travel to or for use in any country other than a country with which the United States is at war, where armed hostilities are in progress, or where there is imminent danger to the public health or the physical safety of United States travelers.” The Agee Court used the opening clause as the out, highlighting congressional acquiesence to an executive practice of revoking passports for national security purposes.

The right to exit one’s on country is pretty well established as a matter of international law. Although it’s true that article 12 of the ICCPR allows for derogation of such a right where “necessary to protect national security,” the Human Rights Committee has stressed the high hurdle to invoking the exception — see this general comment from 1999 which among other things notes that it “would not be met, for example, if an individual were prevented from leaving a country merely on the ground that he or she is the holder of ‘State secrets.'” Agee might have posed more of a threat than that back in the early 80s. But what’s the scenario in which the revocation authority gets deployed today?