Full opinion text
Opinion for the Court filed by Circuit Judge ROBB. Dissenting opinion filed by Circuit Judge MacKINNON. ROBB, Circuit Judge: In this case Philip Agee challenges a regulation relied on by the United States Department of State to revoke his passport. The District Court, 483 F.Supp. 729, declared the regulation invalid for lack of congressional authorization and restored the passport. We affirm. Appellee Philip Agee, a United States citizen and a former employee of the Central Intelligence Agency (CIA), presently resides in Hamburg, West Germany. Agee is a leading critic of the CIA’s clandestine operations throughout the world. He has written and spoken extensively attacking American intelligence efforts, and has purportedly revealed the identities of certain undercover CIA agents. Agee was issued a United States passport, No. Z3007741, on March 30, 1978, with an expiration date of March 29, 1983. However, the United States Department of State, aware of Agee’s activities and perhaps believing that they took on special significance because of the Iranian crisis and the recent unrest in other Islamic countries, moved to revoke his passport. On December 23, 1979 the United States Consul General in Hamburg delivered to Agee a letter from the Department of State notifying him that his passport was immediately revoked and should be surrendered. The letter invoked the authority of 22 C.F.R. §§ 51.70(b)(4) & 51.71(a) (1979). 22 C.F.R. § 51.70(b)(4) (1979) provides: A passport may be refused in any case in which: 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 . 22 C.F.R. § 51.71(a) (1979) states: A passport may be revoked, restricted or limited where: The national would not be entitled to issuance of a new passport under § 51.70 According to the State Department letter The Department’s action is predicated upon a determination made by the Secretary under the provisions of Section 51.-70(b)(4) that your activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States. The reasons for the Secretary’s determination are, in summary, as follows: Since the early 1970’s it has been your stated intention to conduct a continuous campaign to disrupt the intelligence operations of the United States. In carrying out that campaign you have travelled in various countries (including, among others, Mexico, the United Kingdom, Denmark, Jamaica, Cuba, and Germany), and your activities in those countries have caused serious damage to the national security and foreign policy of the United States. Your stated intention to continue such activities threatens additional damage of the same kind. (J.A. at 13). The letter also informed Agee of his right to administrative review, and the Department of State subsequently offered him a hearing on an expedited basis. Agee rejected this option, however, and on December 31, 1979, he sued Cyrus Yance, who was then Secretary of State, in the District Court. The complaint sought declaratory and injunctive relief. Agee’s complaint challenged the revocation of his passport on five grounds: (1) that 22 C.F.R. § 51.70(b)(4) has not been authorized by Congress and is therefore invalid; (2) that 22 C.F.R. § 51.70(b)(4) is impermissibly vague and overbroad; (3) that the revocation of his passport prior to a hearing violated his Fifth Amendment right to procedural due process; (4) that the revocation of his passport violated his right to travel — a liberty interest protected by the Fifth Amendment; and (5) that his passport was revoked in order to punish, him and suppress his criticism of government policy in violation of the First Amendment. In proceedings before the District Court on January 3, 1980, Agee’s counsel, for the purposes of attacking the Secretary’s authority to adopt and apply 22 C.F.R. § 51.-70(b)(4), conceded the truth of “the charges as they are made in the letter to Agee.” (Tr. at 16). On January 18, 1980 the case was orally argued to the District Court on cross-motions for summary judgment. By Memorandum and Order dated January 28, 1980 the District Court granted summary judgment to Agee and ordered the restoration of his passport. The District Court concluded that “[t]he Secretary of State’s power to revoke or limit a passport flows from Congress not from the President” and “[h]is power is no greater than Congress may choose to delegate to him.” Accordingly the court held that 22 C.F.R. § 51.70(b)(4) is invalid because “the Secretary’s promulgation of the challenged regulation was without [express or implied] authorization from Congress.” On January 29, 1980 the Secretary of State filed a notice of appeal from the District Court’s decision, and by Orders dated February 4 and 5, 1980 this court granted the Secretary’s motion for a stay pending appeal. As authority to promulgate and enforce 22 C.F.R. § 51.70(b)(4), the Secretary of State relies on the Passport Act of 1926, 22 U.S.C. § 211a (1976), which at the time the regulation was adopted in 1968 provided that: The Secretary of State may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic representatives of the United States, and by such consul generals, consuls, or vice consuls when in charge, as the Secretary of State may designate and by the chief or other executive officer of the insular possessions of the United States, under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other persons shall grant, issue, or verify such passports. In Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), the Secretary of State had denied two passport applications pursuant to a regulation promulgated in reliance on 22 U.S.C. § 211a. The regulation prohibited the issuance of passports to members of the Communist Party or to persons who “engage in activities which support the Communist movement” or “are going abroad to engage in activities which will advance the Communist movement for the purpose, knowingly and wilfully of advancing that movement.” Id. at 117-18 n.1, 78 S.Ct. at 1114 n.l. The Supreme Court held that “[t]he right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment,” and, therefore, “[i]f that ‘liberty’ is to be regulated, it must be pursuant to the law-making functions of the Congress.” Id. at 125, 129, 78 S.Ct. at 1118, 1120. Further, the Court stated that it would “construe narrowly all delegated powers that curtail or dilute [the right to travel].” Id. at 129, 78 S.Ct. at 1120. The Court held that Congress did not give the Secretary of State “unbridled discretion to grant or withhold a passport from a citizen for any substantive reason he may choose”, and that the only grounds for refusing a passport “which it could fairly be argued were adopted by Congress in light of prior administrative practice” were “relate[d] to citizenship or allegiance on the one hand or to criminal or unlawful conduct on the other.” Id. at 127-128, 78 S.Ct. at 1119. The Court explained that: The difficulty is that while the power of the Secretary of State over the issuance of passports is expressed in broad terms, it was apparently long exercised quite narrowly. So far as material here, the cases of refusal of passports generally fell into two categories. First, questions pertinent to the citizenship of the applicant and his allegiance to the United States had to be resolved by the Secretary, for the command of Congress was that “No passport shall be granted or issued to or verified for any other persons than those owing allegiance, whether citizens or not, to the United States.” 32 Stat. 386, 22 U.S.C. § 212. Second, was the question whether the applicant was participating in illegal conduct, trying to escape the toils of the law, promoting passport frauds, or otherwise engaging in conduct which would violate the laws of the United States. Id. at 127, 78 S.Ct. at 1119. Thus, the Court, observing that the State Department rulings concerning Communists were “scattered” and “not consistently of one pattern”, concluded that the regulation employed to deny passports to members and supporters of the Communist Party lacked congressional authorization and was therefore invalid. Id. at 128-30, 78 S.Ct. at 1119-1120. In Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), the Supreme Court considered the validity of an area travel ban imposed by the Secretary of State to prohibit travel to Cuba by all United States citizens. The Court reasoned that the language of 22 U.S.C. § 211a “is surely broad enough to authorize area restrictions, and there is no legislative history indicating an intent to exclude such restrictions from the grant of authority.” Id. at 8, 85 S.Ct. at 1276. Noting that area restrictions were imposed on numerous occasions both before and after the Passport Act was adopted in 1926, the Court held that the ban on travel to Cuba was valid because there was “an administrative practice sufficiently substantial and consistent to warrant the conclusion that Congress had implicitly approved it.” Id. at 8-12, 85 S.Ct. at 1279. In addition, the Court stated that, unlike the denial of the passport applications in Kent v. Dulles, supra, “the Secretary has refused to validate appellant’s passport not because of any characteristic peculiar to appellant [i. e., political beliefs or associations], but rather because of foreign policy considerations affecting all citizens.” Id. at 13, 85 S.Ct. at 1279. This court has also considered the issue of congressional authorization for administrative actions impacting on the right of international travel. In Woodward v. Rogers, 344 F.Supp. 974 (D.D.C.1972), aff’d without opinion, 159 U.S.App.D.C. 57, 486 F.2d 1317 (1973), this court summarily affirmed the District Court’s holding that there existed neither explicit nor implicit statutory authority for requiring an oath of allegiance as a prerequisite to the issuance of a passport. The District Court said: While an Oath of Allegiance may, indeed, have been included on the passport application for an extended period, travel abroad until recently was not conditioned upon the possession of a passport, with the exception of limited periods of international hostilities or national emergency. Moreover, there has been no evidence introduced establishing an open and highly published practice of denying applicants passports for simply refusing to swear to or affirm the Oath. Under these circumstances, this Court is extremely reluctant to conclude that Congress, in re-enacting the passport legislation in 1952, indicated a clear intention to authorize the Secretary of State to establish the Oath requirement as a prerequisite to the exercise of a citizen’s constitutionally protected right to travel. Indeed, the Supreme Court has made it plain that only the clearest of such evidence will permit this Court to consider Congressional silence to be a substitute for explicit and affirmative legislative action in limiting the free exercise of important rights. 344 F.Supp. at 985. In Lynd v. Rusk, 128 U.S.App.D.C. 399, 389 F.2d 940 (1967), this court held that the Secretary of State could not withhold a citizen’s passport for failure to give assurance that he would not travel without a passport to those countries where the Secretary had designated travel to be inimical to the nation’s foreign policy. The court reasoned that “[although Congress has approved administrative action intended to limit travel to restricted areas through the means of restricting passports, . it has not made travel to restricted areas a crime and added possible deprivation of liberty as a sanction for achieving this objective”; and thus the court concluded that there was no “basis for inferring that Congress has given the Secretary the authority to deny legitimate, constitutionally protected travel, merely because that is a technique which provides greater assurance of hindering travel to designated areas.” 128 U.S.App.D.C. at 405, 389 F.2d at 946-947. In summary, as the case law makes clear, the Secretary of State must demonstrate that Congress has authorized 22 C.F.R. § 51.70(b)(4) either by an express delegation or by a “sufficiently substantial and consistent” administrative practice to warrant finding the implied approval of Congress. The Secretary argues that the Passport Act of 1926, 22 U.S.C. § 211a, interpreted consistently with the President’s power to protect national security and conduct foreign affairs, authorizes the revocation of Agee’s passport under 22 C.F.R. § 51.-70(b)(4), especially in light of Agee’s concession for purposes of his summary judgment motion that his activities seriously damage the national security and the foreign policy of the United States. However, the Passport Act does not expressly authorize the Secretary to deny or revoke a passport on national security or foreign policy grounds, and no subsequent legislation relating to passports has explicitly delegated such authority. In fact, in .1958 and in 1966 the Department of State unsuccessfully sought this precise power from Congress, and in 1978 Congress limited the Secretary’s discretion, as upheld in Zemel v. Rusk, supra, to impose area restrictions on travel. To be sure the failure to enact the legislation sought by the Department of State and the contraction of executive power over area restrictions do not conclusively signify congressional disapproval of 22 C.F.R. § 51.-70(b)(4); but neither do they support the Secretary’s construction of 22 U.S.C. § 211a as a broad delegation of authority to regulate. Moreover, with regard to the inherent foreign affairs power of the executive, the Supreme Court emphasized in Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 707, 7 L.Ed.2d 663 (1962), that “it is error to suppose that every case or controversy which touches foreign relations lies beyoiid judicial cognizance”, and we reaffirm what this court stated in Lynd v. Rusk, supra: [I]n the cases before us the Secretary does not press any claim that he has an “inherent” authority, and contends his action is valid under the Passport Act of 1926. It is not insignificant that the Zemel opinion, supporting the Secretary, did not rely on an inherent authority. We think any claim of inherent authority would fall afoul of the Supreme Court’s warning in Kent v. Dulles, 357 U.S. 116, at 129 [78 S.Ct. at 1119] [2 L.Ed.2d 1204] (1958), that as freedom to travel is part of the “liberty” protected by the Fifth Amendment, “if that ‘liberty’ is to be regulated, it must be pursuant to the law-making functions of the Congress.” 128 U.S.App.D.C. at 403, 389 F.2d at 944. The Secretary contends that past administrative and legislative practice also confirms congressional approval of his authority to deny or revoke passports on the basis of “serious damage to the national security or the foreign policy of the United States.” However, the Secretary details only one instance in twelve years in which 22 C.F.R. § 51.70(b)(4) was employed to revoke a passport, and only five refusals of passport applications, two prior to the passage of the Passport Act of 1926 and three during the mid-1950’s, which were even arguably for national security or foreign policy reasons. Regardless of whether Congress was aware of these scattered examples when it adopted the Passport Act in 1926 and other travel control legislation in 1941, 1952, and 1978, such evidence hardly amounts to a “substantial and consistent administrative practice” demonstrating implied congressional authorization for the challenged regulation. Until Agee’s case arose. 22 C.F.R. § 51.-70(b)(4)) was virtually unused. In addition, the Secretary relies on a series of statutes, regulations, proclamations, orders and advisory opinions dating back to 1856, most of which concern the power of the executive to refuse passports to persons engaged in criminal conduct and to restrict or condition the issuance of passports during time of war or national emergency; but such measures are inapposite and unpersuasive on the issue of implicit authority to invoke national security or foreign policy considerations during peacetime. See Kent v. Dulles, supra, 357 U.S. at 128, 78 S.Ct. at 1119. Further, as illustrated by the Supreme Court’s decisions in Kent v. Dulles, supra at 127, 78 S.Ct. at 1118, and Zemel v. Rusk, supra 381 U.S. at 8, 85 S.Ct. at 1276, the criterion for establishing congressional assent by inaction is the actual imposition of sanctions and not the mere assertion of power. “[0]nly the clearest . . . evidence [of past administrative and legislative practice] will permit this Court to consider Congressional silence to be a substitute for explicit and affirmative legislative action in limiting the free exercise of important rights.” Woodward v. Rogers, 344 F.Supp. at 985. Such proof is lacking here. We conclude that 22 C.F.R. § 51.-70(b)(4) was promulgated by the Secretary of State and enforced against Agee without the requisite express or implied authorization of Congress. The Secretary may not revoke Agee’s passport unless Congress has authorized him to do so, for “the right to travel abroad” is constitutionally protected and subject to regulation only “pursuant to the law-making functions of the Congress.” See Aptheker v. Secretary of State, 378 U.S. 500,505, 84 S.Ct. 1659, 1663, 12 L.Ed.2d 992 (1964); Kent v. Dulles, supra 357 U.S. at 129, 78 S.Ct. at 1119. The decisions of the Supreme Court would permit the revocation of Agee’s passport if he were indicted or otherwise charged with criminal conduct, but he has not been charged with any violation of law. The State Department’s letter revoking his passport makes no such charge. Under the decisions it is not enough, absent a formal allegation of criminal activity, that Agee’s conduct may be considered by some to border on treason. We are bound by the law as we find it. The judgment of the District Court declaring 22 C.F.R. § 51.70(b)(4) invalid and ordering the restoration of Agee’s passport is affirmed, and the stay pending appeal is vacated. So ordered. . An article in the New York Post on December 17, 1979 reported that Agee would be invited to visit Iran and serve on an “international tribunal” created by Ayatollah Khomeini to pass judgment on the prisoners held in the American Embassy in Tehran. Agee denied being “invited to Iran by its government, The Revolutionary Council, or any representative thereof . ” (J.A. 98), but resolution of this factual dispute is irrelevant to our decision. See note 3 infra. . Section 211a was amended in 1978 by the addition of the following language: 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 travellers. 22 U.S.C. § 211a (Supp. II 1978). By Executive Order No. 11295 (August 5, 1966), 31 Fed.Reg. 10603, the Secretary of State was “designated and empowered to exercise, without the approval, ratification, or other action of the President, the authority conferred upon the President by the first section of the Act of July 3, 1926 (22 U.S.C. 211a), to designate and prescribe for and on behalf of the United States rules governing the granting, issuing, and verifying of passports.” . The dissent emphasizes this reference in Zemel v. Rusk to “foreign policy considerations”, as well as the Supreme Court’s statement that “the restriction which is challenged in this case is supported by the weightiest considerations of national security [as] is perhaps best pointed up by recalling that the Cuban missile crisis of October 1962 preceded the filing of appellant’s complaint by less than two months." 381 U.S. at 13, 16, 85 S.Ct. at 1280. The dissent suggests that Zemel v. Rusk upholds passport revocations on foreign policy and national security grounds in the broad sense of those terms. In our view, however, Zemel v. Rusk holds only that, in light of the extensive history of executive imposition of area restrictions on travel, such restrictions are valid because they have received congressional authorization. See id. at 8-12, 85 S.Ct. at 1276-1278. The heart of the Zemel opinion is the Supreme Court’s statement that “[t]his case is therefore not like Kent v. Dulles, supra, where we were unable to find ... an administrative practice sufficiently substantial and consistent to warrant the conclusion that Congress had implicitly approved it.” 381 U.S. at 12, 85 S.Ct. at 1279. Although the Secretary’s 1961 ban on travel to Cuba assuredly involved foreign policy and national security considerations, so too did the Secretary’s denial of passports to Communist party members and sympathizers pursuant to 22 C.F.R. § 51.135, which was struck down in Kent v. Dulles. Rather than broadly validating passport revocations on foreign policy and national security grounds, Zemel v. Rusk merely sustained one means of satisfying those concerns — the imposition of area restrictions — because it had been “implicitly approved” by Congress. The dissent also notes the Supreme Court’s citation in the Zemel opinion of 22 U.S.C. § 1732, which directs the President to “use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release” of “any citizen of the United States [who] has been unjustly deprived of his liberty by or under the authority of any foreign government.” The Zemel Court stated: It also cannot be forgotten that in the early days of the Castro regime, United States citizens were arrested and imprisoned without charges. We think, particularly in view of the President’s statutory obligation [under 22 U.S.C. § 1732], that the Secretary has justifiably concluded that travel to Cuba by American citizens might involve the Nation in dangerous international incidents, and that the Constitution does not require him to validate passports for such travel. 381 U.S. at 15, 85 S.Ct. at 1280. The dissent argues that 22 U.S.C. § 1732 authorized the revocation of Agee’s passport as part of the President’s efforts to free the. Americans held hostage in Iran. However, in revoking Agee’s passport, the Secretary did not rely on 22 U.S.C. § 1732 and, in fact, made no mention whatsoever of the Iranian crisis. According to the letter that Agee received from the Department of State, the Secretary relied only on 22 C.F.R. §§ 51.70(b)(4) & 51.71(a) as authority for his action, and the sole reasons offered for his decision were that: Since the early 1970’s it has been your stated intention to conduct a continuous campaign to disrupt the intelligence operations of the United States. In carrying out that campaign you have travelled in various countries (including, among others, Mexico, the United Kingdom, Denmark, Jamaica, Cuba, and Germany), and your activities in those countries have caused serious damage to the national security and foreign policy of the United States. Your stated intention to continue such activities threatens additional damage of the same kind. (J.A. at 13). Thus, 22 U.S.C. § 1732 is not germane to this case. . S. 4110, 85th Cong., 2d Sess. (1958), introduced by Senator Green at the request of the Secretary of State, would have permitted the denial of passports to persons whose activities or presence abroad would “seriously impair the conduct of the foreign relations of the United States” or would “be inimical to the security of the United States.” H.R. 14895, 89th Cong., 2d Sess. (1966), introduced by Representative Hays, would have sanctioned the refusal or revocation of a passport if “the Secretary determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.” Both these bills died in committee and were never brought to a vote. . See note 2 supra. . In 1970 the passports of Charles McKissack, attorney for Mrs. Mary Sirhan, and his assistant were revoked pursuant to 22 C.F.R. § 51.-70(b)(4) as they were preparing to leave the United States, and they were unsuccessful in their attempts to enjoin the revocations. (Br. for Appellant at 46). . In 1906 a passport was denied to an Ameri-' can citizen who had traveled to China and became notorious as a promoter of gambling and prostitution. In 1907 a passport was denied to Nelken Waldberg, an American citizen living in Cairo, who “was engaged ... in blackmailing projects, and was disturbing, or endeavoring to disturb, the relations of this country with the representatives of foreign countries.” Id. at 37-38. Colonel Hubert Julian, whose activities included supplying arms to various countries, was denied a passport in 1954. In 1955 two passport applications were refused because the applicants’ participation in political affairs abroad had become an internal problem to the foreign governments involved. Id. at 46; (Rep.Br. for Appellant at 17 & n.15). In addition, the Secretary notes that the statistics provided to the Senate Foreign Relations Committee during hearings in 1957 showed that, apart from numerous “passport refusals for security reasons” that were related to 22 C.F.R. § 51.-135, the Communist regulation held invalid in Kent v. Dulles, twenty-one passport applications in 1955 and ten passport applications in 1956 were refused because the applicants were “participants in political affairs abroad whose activities were deemed harmful to good relations and 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 difficulty with police, etc.).” (Br. for Appellant at 44); Department of State Passport Policies, Hearings before the Senate Committee on Foreign Relations, 85th Cong., 1st Sess. 38-40 (1957). The rationale for these passport denials, however, appears only tenuously related to 22 C.F.R. § 51.70(b)(4)’s concern with “serious damage to the national security or the foreign policy of the United States.” . See, e. g., Pub.L.No.65-154, 40 Stat. 559 (1918); Pub.L.No.77-114, 55 Stat. 252 (1941); Pub.L.No.82 — 414, 66 Stat. 190 (1952); Pub.L. No.95-426, 92 Stat. 971 (1978); 23 Op.Atty. Gen. 509, 511 (1901); Proclamation No. 1473, 40 Stat. 1829 (1918); 17 Fed.Reg. 8013 (1952). . Because we so hold, we need not consider Agee’s constitutional attacks on the regulation and its application to him based on the First and Fifth Amendments. . See Kent v. Dulles, supra, 357 U.S. at 127-28, 78 S.Ct. at 1118-1119. 22 C.F.R. § 51.-70(a)(1) (1979) provides for the denial or revocation of a passport if “[t]he applicant is the subject of an outstanding Federal warrant of arrest for a felony, including a warrant issued under the Federal Fugitive Felon Act (18 U.S.C. 1073) . . . .” In Snepp v. United States, 444 U.S. 507, 517 & n.3, 100 S.Ct. 763, 769, & n.3, 62 L. Ed.2d 704 (1980), Mr. Justice Stevens observed in his dissent that “Congress has enacted a number of criminal statutes punishing the unauthorized dissemination of certain types of classified information” including “18 U.S.C. § 798, which imposes a prison term of 10 years and a $10,000 fine for knowingly and wilfully publishing certain types of classified information” and “18 U.S.C. § 794, which makes it a criminal offense punishable by life in prison to communicate national defense information to a foreign government.” The Secretary, in fact, acknowledges that Agee may be in violation of 18 U.S.C. § 793 because he “has ‘communicated’ ‘to persons not entitled to receive it’ ‘information relating to the national defense’ which could be ‘used to the injury of the United States.’ ” (Br. for Appellant at 23 n.8).'
MacKINNON, Circuit Judge (dissenting). The issue for determination is whether regulations of the Department of State, under which the Secretary of State revoked the passport of Philip Agee, are unconstitutional on their face and as applied. Agee, a former agent of the Central Intelligence Agency (CIA), concedes in this case that his international travel activities “have caused serious damage to the national security and foreign policy of the United States” and that his “stated intention to continue such activities threatens additional damage of the same kind.” (App. 9, 29) The District Court held that while such grounds may be adequate to support a passport revocation during an emergency, they are not adequate in “peace-time.” (App. 51) This overlooks the significance of the enactment by Congress in 1978 which extended the requirement for passports in emergencies into the peace-time era. It also does not give adequate recognition to the powers of the Executive under the Hostage Act and implicit adoption by Congress in 1978 of prior administrative practice in passport revocations. For this and for other reasons which are demonstrated hereafter, the Secretary of State on the record in this declaratory judgment action is authorized to revoke Agee’s passport. It is an unreasonable interpretation of congressional intent to hold that a passport cannot be revoked for one with Agee’s propensities to cause serious damage to this nation. No United States Congress would ever intend to require a President to issue a passport to one with Agree’s record and intentions. If the decision of the District Court is not to be reversed the least that should be done would be to vacate and remand for the hearings that were never held. I. FACTS A. Agee’s Background — Past Activities. Agee is an American citizen who is presently residing in Hamburg, West Germany after having previously been deported from Great Britain, (danger to national security), France, Germany and Holland (endanger Holland). (App. 92); P. Agee, L. Wolf, Dirty Work: CIA in Western Europe 286-300 (1978). When Agee first entered on duty with the CIA as an agent on July 22, 1957, he executed a formal “Secrecy Agreement” with the Agency which included the following undertaking: [I]n consideration of my employment by CIA I undertake not to publish or to participate in the publication of any information or material relating to the Agency, its activities or intelligence activities generally, either during or after the term of my employment by the Agency without specific prior approval by the Agency. (App. 65) Thereafter, in reliance on Agee’s execution of the Secrecy Agreement, the CIA assigned him to highly confidential duties in a trust relationship with the agency. He was given training in CIA clandestine operations, and allowed to enter CIA headquarters where he became personally acquainted with numerous CIA employees who had undercover assignments, many of whom are still active. Agee also was assigned to serve in undercover assignments abroad. (App. 56-57) He worked in numerous positions of trust in the CIA including one with the Directorate of Operations, and he was permitted to acquire a detailed knowledge of the secret methodology used by the agency to provide cover for its undercover employees and cooperating sources. (App. 57) As a consequence of personal problems that threatened to expose his CIA affiliation in an undercover position, Agee resigned in November of 1968. (App. 57) In November, 1971 the CIA received its first indication that Agee had embarked on a program to expose CIA intelligence activities when a publication in Uruguay published a letter, purportedly written by Mr. Agee, in which the CIA was accused of interference in upcoming Uruguayan elections. Subsequently, on October 3, 1974 Agee issued a press release in London as follows: 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. This effort to identify CIA people in foreign countries has been going on for some time . . .. (Today’s) list was compiled by a small group of Mexican comrades whom I trained to follow the comings and goings of CIA people before I left Mexico City. Similar lists of CIA people in other countries are already being compiled and will be announced when appropriate. We invite participation in this campaign from all those who strive for social justice and national dignity. (App. 58) Following that announcement Agee continued to engage in a world-wide program designed to expose CIA activities and personnel. In doing so he resorted to publications, personal appearances and press conferences throughout the world, including London, Sweden, Denmark, Jamaica, and Cuba. He was quoted or interviewed on the same subject in newspapers or by the television media in Portugal (concerning CIA agents in Angola), Spain, Holland, Rome (concerning CIA activities in Switzerland), Bolivia, Australia and New Zealand. (App. 58-61) At the time of these disclosures Agee allegedly admitted some of them and some were credited to him by the publishers or writers without his confirmation. When the CIA’s Athens Chief, Richard Welch, was murdered by Greek Terrorists in December, 1975 some CIA officials reportedly blamed Agee’s activities in part. (App. 92) In 1978, Agee participated in the publication of a book entitled, Dirty Work: CIA in Western Europe (1978). In the book’s introduction Agee stated he intended, by participating in the publication, to create opposition to the CIA by publishing the identities of CIA employees. The book claims reliance on a number of “official publications” but also asserts “use of other, less public information from within several American embassies, and other sources as noted ...” Id. at 319. The book contains an Appendix of 415 pages that purports to list and describe a large number of undercover CIA employees. (App. 61, 66-75) There is no record that Agee ever made a request to be released from the terms of his Secrecy Agreement. (App. 56) His right to write is recognized, but not his right to violate his Secrecy Agreement and disclose information vital to the national security of the United States. B. The Iranian Crisis. We may take judicial notice of the significant facts of the United States’ involvement in the present Iranian Crisis. Fed.R. Evid. 201(b), (c), (f). Early in 1979 the Shah of Iran was forced to leave his country. The country soon passed into the hands of a self-styled Islamic Republic, which termed itself “Revolutionary.” The person who became the principal figure in the government of the country was a prominent Moslem cleric, and there were a great many quick executions of persons who previously held top positions in the Shah’s government. As frequently happens with revolutions, the government that replaced the Shah did not quickly reach maturity and dangerous unrest continues throughout the country, and, principally in the capital city, Tehran. On November 4, 1979, a severe international crisis developed between the United States and a faction of militant insurgents in Iran who invaded the United States Embassy in Tehran, occupied the entire compound by force, seized over 50 United States citizens who were duly accredited as members of the official United States diplomatic mission to Iran, and confined them in the Embassy. These Iranian terrorists have continued to hold the members of the Embassy staff as hostages to their unlawful demand that the United States, with whom Iran has no extradition treaty, extradite Mohammad Reza Pahlavi, the Ex-Shah of Iran. The Ex-Shah, suffering from cancer and a bile duct obstruction had been temporarily admitted to the United States for a short period in November, 1979 for emergency surgery. The Ex-Shah has long since departed from the United States, and the United States has never acceded to the demand for his extradition to Iran. Nevertheless, the militant insurgents, voicing other nebulous complaints, continue to occupy the United States Embassy and by force and violence to hold captive therein the official staff members of the United States Diplomatic Mission. The United States took the matter to the International Court of Justice at the Hague where the above facts as alleged by the United States were not contradicted by Iran. That Court on December 15, 1979 was unanimous in issuing an Order which in significant part states: However important and however connected with the present case, the inequities attributed to the United States Government by the Government of Iran in that letter may appear to be to the latter Government, the seizure of the United States Embassy and consulates and the detention of internationally protected persons as hostages cannot, in the view of the court, be regarded as something “secondary” or “marginal,” having regard to the importance of the legal principles involved. * * * There is no more fundamental prerequisite for the conduct of relations between states than the inviolability of diplomatic envoys and embassies, so that throughout history nations of all creeds and cultures have observed reciprocal obligations for that purpose. United States Diplomatic and Consular Staff in Tehran, Provisional Measures, Order of 15 December 1979, I.C.J. Reports 1979, pp. 15, 19. On April 4, 1980, the President of the United States announced the severance of diplomatic relations with Iran because of Iran’s refusal to release the hostages. On May 24, 1980 the World Court announced its unanimous decision declaring Iran to be in violation of international law in holding the hostages. C. Agee’s Relation to the Hostage Crisis in Iran. With this situation existing on December 17, 1979 a newspaper article in the New York Post reported that Agee had been invited to travel to Iran in order to participate in a “Tribunal” to help judge the American hostages then being held in Tehran under the conditions described above. (App. 37) It is incorrect to state that the Secretary did not mention the Iranian crisis as the record refers to the “damage . found in the recent attacks on the United States [Embassy] ... in Iran . . . ” (App. 36) (Emphasis added). Judicial notice is also taken of the generally known fact that following the overthrow of the Shah those who succeeded to power in Iran conducted so-called revolutionary “Tribunals” which involved many mass trials that almost invariably led to imposition of the death sentence and prompt execution. Fed.R.Evid. 201(b), (c), (f). While there was no assurance that such would be the result of the Iranian tribunal to which Mr. Agee was invited to attend, he made no prompt public denial of the invitation nor any statement with respect thereto. The Iranian government also professed an inability to guarantee the security of the hostages. This created the gravest concern in the United States for the safety of its citizens who comprised the Embassy staff members being held hostage. (App. 37) In addition to the situation in Iran, recent attacks on United States embassies also occurred in other Islamic countries, Libya and Pakistan (App. 36), and the United States Ambassador to Columbia was held hostage during the same period by a band of militants in Bogota. The State Department expressed its judgment that the international situation was such that it was likely that other “United States diplomatic facilities, including embassies and consulates, would be taken over by force and that United States diplomats and other nationals would be physically harmed.” (App. 37) Given Agee’s prior disclosures of United States’ intelligence activities throughout the world, and some of the results that were outlined and detailed in the uncontroverted Government affidavit (App. 36-37), the State Department concluded that “Agee’s activities have caused and are likely to cause serious damage to the national security and foreign policy of the United States.” (App. 37-38) The United States allows its citizens more freedom of expression than any nation in the world, but our Constitution and laws do not require that we assist illegal conduct that adheres to our enemies, causes serious damage to our national security, and endangers the lives of our citizens. The State Department was well advised to “mark him well.” D. The Passport Revocation. As the District Court describes the situation: “The Department of State, aware of Agee’s activities and believing that they took on particular significance in light of the recent Iranian crisis and the general unrest in other areas, moved to revoke his passport.” (App. 47) (Emphasis added). To revoke his passport, on December 23, 1979 the State Department sent the following letter by cable to the United States consulate in Hamburg, West Germany for delivery to Agee: The Department of State has requested the Consulate to inform you that the Department has revoked Passport No. Z3007741 issued to you on March 30, 1978 under the provisions of Section 51.71(a) of Title 22, Code of Federal Regulations. The Department’s action is predicated upon a determination made by the Secretary under the provisions of Section 51.-70(b)(4) that your activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States. The reasons for the Secretary’s determination are, in summary, as follows: Since the early 1970’s it has been your stated intention to conduct a continuous campaign to disrupt the intelligence operations of the United States. In carrying out that campaign you have travelled in various countries (including, among others, Mexico, the United Kingdom, Denmark, Jamaica, Cuba, and Germany), and your activities in those countries have caused serious damage to the national security and foreign policy of the United States. Your stated intention to continue such activities threatens additional damage of the same kind. You are advised of your right to a hearing under Sections 51.80 through 51.-105 of the Regulations. A copy of the regulations is enclosed. If you should desire a hearing, you must notify the Consulate within sixty days after your receipt of this notice. ****** You are also advised that the Consulate is prepared to receive, on an expedited basis, any evidence you may with to present on your behalf as to why your passport should be re-instated. This opportunity to present evidence is in addition to your right to a hearing pursuant to the Regulations and is designed to afford you the fullest possible due process. (App. 13) (Emphasis added) II. THE INSTANT DECLARATORY JUDGMENT PROCEEDINGS As indicated above, the State Department letter (App. 13) advised Agee of his right to a hearing on the revocation of his passport in accordance with the Passport Regulations, 22 C.F.R. §§ 51.80-51.105 A copy of the regulations was enclosed. However, Agee elected not to exhaust his administrative remedies, even though he was advised that the Consulate was prepared on an expedited basis to receive any evidence he desired to present. (App. 13) So instead of appealing the revocation by the Secretary of State, on December 31, 1979 Agee elected to file a complaint in the United States District Court for the District of Columbia against Cyrus Vance, Secretary of State, seeking declaratory and injunctive relief. He should have been required to exhaust his administrative remedy, Robeson v. Dulles, 235 F.2d 810 (D.C.Cir.), cert. denied, 352 U.S. 895, 77 S.Ct. 131, 1 L.Ed.2d 86 (1956), or failing that, to make a more adequate record in this case. This complaint, which initiated the case presently before the Court, alleges that Agee suffered First and Fifth Amendment violations of his rights under the United States Constitution. It also alleges that Agee is a citizen of the United States residing in West Germany and holds a passport issued on March 30,1978 to expire on March 29, 1983; that he is a well-known critic of the foreign policy of the United States and the clandestine activities of the Central Intelligence Agency; that on December 23, 1979 his passport was revoked, effective immediately, under the authority of 22 C.F.R. §§ 51.70(b)(4) and 51.71; and that the relevant State Department regulations authorized revocation of passports when: (4) The Secretary determines that the national’s activities abroad are causing or likely to cause serious damage to the national security or the foreign policy of the United States. (App. 3); 22 C.F.R. § 51.70(b)(4). The complaint charges that the revocation of Agee’s passport was invalid and' unlawful for five stated reasons and that such revocation caused him irreparable injury. It prayed that the Court (a) declare 22 C.F.R. §§ 51.70(b)(4) and 51.71 invalid and unconstitutional on their face and as applied to Agee, and (b) withdraw the revocation and restore Agee’s passport. (App. 4) The matter came on for hearing in the District Court on January 3, 1980, at which hearing it was concluded that Agee would file a motion for summary judgment, to which the government would respond. In the course of the January 3rd hearing a colloquy occurred with the court in which Agee’s counsel conceded on behalf of his client that Agee was “causing or is likely to cause serious damage to the national security . . . ”, (App. 16-17, 29-30), and intended “to continue such activities”. (App. 34, 30) (Emphasis added) Agee had often expressed his intention to do just that. The District Court filed its Memorandum and Order on January 28, 1980 granting Agee’s motion for summary judgment and denying the cross-motion of the United States; its judgment was based primarily on a determination that the regulation was invalid. Other issues were not reached. The court stated: “[a]ll that is held here is that because Congress has not acted to grant the Secretary authority, the regulation in issue cannot be upheld.” (App. 53) In reaching this decision, the District Court claimed support primarily from Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958) and Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), from which it concluded: “The Secretary of State’s power to revoke or limit a passport flows from Congress not from the President . His power is no greater than Congress may choose to delegate to him.” (App. 49) As applied to Agee’s case, the District Court’s decision held that Congress, in authorizing the President to promulgate passport regulations, did not authorize him by regulation to provide for the revocation of passports of citizens in “peacetime” who are causing or likely to cause serious damage to the “national security” or the “foreign policy” of the United States and intended to continue to cause such damage. For reasons hereinafter set forth it is submitted that such conclusion misreads congressional intent and Kent and Zemel; that such decisions support a judgment here holding that the regulations authorizing the revocation of Agee’s passport because of the serious damage he was causing and threatening to cause to our national security and foreign relations are constitutional; and that the revocation on such stated grounds was also constitutional. III. STATUTORY AUTHORITY FOR PASSPORT REVOCATION The authority for the Secretary of State and consular officials to issue passports “under such rules as the President shall designate and prescribe for and on behalf of the United States” has existed since the first Passport Act was adopted on August 18, 1856, ch. 127, 11 Stat. 60-61. There have been minor amendments to the act but none changed the italicized wording set forth above granting the President the power to prescribe such rules. The same grant of power continues to the present day in 22 U.S.C. § 211a: § 211a. The Secretary of State may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic representatives of the United States, and by such consul generals, consuls, or vice consuls when in charge, as the Secretary of State may designate, and by the chief or other executive officer of the insular possessions of the United States, under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue or verify such passports . . . 22 U.S.C. 211a (Emphasis added). As the last clause indicates, the original purpose of this act was as much to stop Governors, notaries public, clerks of court and others from issuing passports as to recognize the power in the Secretary of State to issue them. This was a task that “naturally fell to the Department of State, as one of its manifestly proper functions” and had been exercised from the start of the nation. G. Hunt, The American Passport 36-42 (1898). However, in recent years the significance of passports has changed as they came to be required for international travel. Pursuant to the statutory authority cited above, that passports “may” be issued under rules prescribed by the President, and in accordance with authority lawfully delegated to him' by the President, the Secretary of State, on April 4,1968 issued the regulation referred to in Agee’s complaint: § 51.70, Denial of Passports, (a) A passport, except for direct return to the United States, shall not be issued or renewed in any case in which . (4) 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 ... Passport Regulations, 22 C.F.R. § 51.70 (1968), 33 Fed.Reg. 5681 (Emphasis added). Subsection (4) has remained substantially unchanged to this date. Agee’s basic contention here, which is supported by the decision of the District Court, is that this regulation is invalid “because. Congress has not [validly] acted to grant the Secretary [the] Authority . . .’’to exercise the authority conferred by said regulations. (App. 53). The 1856 provision in § 211a, as quoted above, which authorizes the President to issue passports “under such rules as the President shall designate and prescribe for and on behalf of the United States”, is obviously of sufficient breadth to authorize the promulgation of the questioned rule. It is, however, contended that the statute cannot be construed as broadly as Congress provided because to do so would constitute an unconstitutional delegation of legislative power since the statute (§ 211a) contained no adequate standard. Kent v. Dulles, and Zemel v. Rusk, decided in 1958 and 1965 respectively, held that the President’s authority thereunder “. . authorizes only those passport refusals and restrictions ‘which it could fairly be argued were adopted by Congress in light of prior administrative practice,’ Kent v. Dulles . . .”. Zemel v. Rusk, 381 U.S. at 18, 85 S.Ct. at 1281. It is also contended that there was no administrative practice prior to 1926 of denying passports on grounds that our national security or foreign policy was being or would be seriously damaged. Such construction of Zemel v. Rusk, however, is unwarranted because the Court there did uphold the denial of passports to an entire area (Cuba) on the grounds of “national security”, 381 U.S. at 16, 85 S.Ct. at 1280, and “foreign policy considerations”, 381 U.S. at 13, 85 S.Ct. at 1279. The greater power to deny passports to all citizens for a limited area on such grounds necessarily includes the lesser power to deny a passport to an individual citizen on the same grounds where it is conceded that his worldwide activities have caused serious damage to our national security and foreign policy, and that his stated intention to continue such activities was “likely to cause” additional damage of the same character. (App. 34, 29) This point, however, is not asserted as the rule for decision here, because the Department’s administrative history of passport revocation, which was adopted by Congress in its 1978 enactment, supports the regulation and the revocation in Agee’s case. No nation should request another nation to aid one of its citizens who admittedly intends to damage its national security and foreign policy. IV. THE SUPREME COURT AND PASSPORT REVOCATION Agee contends that the Supreme Court cases discussing passport denials support his case. However, the two major cases, Zemel v. Rusk and Kent v. Dulles, actually provide much stronger support for the Government’s case. The analysis of this issue must start with the admission by Agee that his travel activities have caused serious damage to the national security and foreign policy of the United States and that he intends to continue these activities. Notwithstanding this concession, Agee argues that Congress did not intend, when it authorized the President to issue passports “under such rules as he shall designate and prescribe,” that he should be able to promulgate a regulation authorizing the revocation of passports for damage to our national security or foreign policy. On the basis of these facts, the following discussion will establish that Zemel v. Rusk and Kent v. Dulles support the presidential power to revoke Agee’s passport on two separate grounds, either of which furnishes sufficient grounds to revoke his passport. Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965) is analyzed first because it is the most recent case, because it modifies Kent to some extent, and because it supports the revocation of Agee’s passport without any reliance on the affidavits filed by the parties in this Court. A. The Cuban Area Passport Restriction in Zemel. Chief Justice Warren’s opinion in Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965) followed Kent by seven years. Zemel clearly distinguishes Kent from the kind of facts we have here, and it also holds that passports to designated areas may be denied on national security and foreign policy grounds. Even though it dealt with an area limitation, it provides support for the position of the Government when applying the same grounds to the revocation of an individual’s passport. Zemel holds that the Passport Act of 1926 authorized the President to impose area restrictions on travel by United States citizens to Cuba. It distinguished Kent v. Dulles on the ground that Zemel was based on “national security” and “foreign policy” considerations affecting all citizens and was not based on an applicant’s political beliefs or associations. 381 U.S. at 13, 16, 85 S.Ct. at 1279, 1280. The same distinction exists here between Kent and Agee. In distinguishing Kent v. Dulles, Chief Justice Warren noted that Kent involved a passport denial based on the applicant’s “political beliefs or associations.” 381 U.S. at 13, 85 S.Ct. at 1279. He referred to Kent and pointed out: “[i]n finding that history [prior administrative practice] did not support the position of the Secretary in that case, we summarized that history ‘so far as material here’ — that is, so far as material to passport refusals based on the character of the particular applicant [Kent].” Id. (Emphasis added) Then he added: “the Secretary [of State in Zemel] has refused to validate appellant’s passport not because of any characteristic peculiar to appellant, but rather because of foreign policy considerations affecting all citizens.” Id. (Emphasis added). Also, most importantly for this case, the Zemel Court held that it was not restricted to relying on pre-1926 administrative practices: Even if there had been no passport legislation enacted since the 1926 Act, the post-1926 history of executive imposition of area restrictions, as well as the pre1926 history, would be of relevance to our construction of the Act. The interpretation expressly placed on a statute by those charged with its administration must be given weight by courts faced with the task of construing the statute. Udall v. Tallman, 380 U.S. 1, 16-18 [85 S.Ct. 792, 801-802, 13 L.Ed.2d 616]; Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 315 [53 S.Ct. 350, 358, 77 L.Ed. 796]. 381 U.S. at 11, 85 S.Ct. at 1278 (Emphasis added) The Court then proceeded to uphold the Cuban area passport restriction. In reaching its conclusion in Zemel, the Court also placed strong reliance upon the Hostage Law, 22 U.S.C. § 1732, which has been unchanged as a United States Law since 1868. Act of July 27, 1868, ch. 249, § 3, 15 Stat. 224, R.S. § 2001. It also cannot be forgotten that in the early days of the Castro regime, United States citizens were arrested and imprisoned without charges. We think, particularly in view of the President’s statutory obligation to “use such means, not amounting to acts of war, as he may think necessary and proper” to secure the release of an American citizen unjustly deprived of his liberty by a foreign government, that the Secretary has justifiably concluded that travel to Cuba by American citizens might involve the Nation in dangerous international incidents, and that the Constitution does not require him to validate passports for such travel. 381 U.S. at 15, 85 S.Ct. at 1280 (Emphasis added). Section 1732, as applied in Zemel, thus supports the revocation of Agee’s passport. When the facts of this case are taken by their four corners it is obvious that the Secretary of State, acting as the President’s lawful delegate, has determined that the revocation of Agee’s passport is one of the means “necessary and proper to . effectuate the release” of the American hostages-held captive in Iran. The Hostage Statute fits the present situation in Iran like a glove and, as in Zemel, supports the Secretary’s denial (or revocation) of a passport. The District Court recognized the Executive’s “extraordinary authority to act” under § 1732 and stated that “[i]f [Agee’s] activities are detrimental to the hostages in Iran ... his passport may be cancelled . . . ” under § 1732. (App. 53) However, for some unexplained reason the court failed to recognize the strong factual circumstances which bring § 1732 into play as one of the statutes that justifies the revocation. The factual situation in the instant case furnishes much stronger support for the application of § 1732 than the facts described and relied upon in Zemel. United States citizens in Iran are presently under arrest and imprisoned without charges. The record before the District Court disclosed some possibility that Agee might participate in a “Tribunal” that would judge these American citizens. His participation may or may not have been a realistic possibility. However, it was a rational conclusion at the time, given the news reports, Agee’s renegade character, his past activities and stated future intentions, and the absence of any public denial that he might participate as reportedly requested by the militants in Iran. The passport revocation may have caused him to assert a change of mind. Section 1732 is broad. Congress authorized the President to use “such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release . . .” of United States citizens who are unjustly deprived of their liberty by any foreign government. The revocation of Agee’s passport on national security and foreign relations grounds is obviously in pursuit of such objective and is amply supported by § 211a, the cited regulation, and the co-extensive authority conferred by § 1732. The Zemel Court also noted “[tjhat the [Cuban area] restriction [on passports] which is challenged in this case is supported by the weightiest considerations of national security." 381 U.S. at 16, 85 S.Ct. at