◆ SpookStack

- '· Approved For Release 2008/11/06 : CIA-RDP04M01816R000502010009-4 26 !/ Footnote continued from previous page. section 3623(d) does not refer to .section 1702 and does not provide criminal penalties for opening mail without a warrant. Nothing in the legislative history of the enactment of section 3623(d) indicates that Congress believed that it was altering· the elements of 18 u.s.c. §1702. It would have been extraordinary for the Congress without discussion to have enacted a restriction upon the President's foreign intelligence surveillance power so obliquely when, in 1968, legislating with respect to the much greater in- vasion of privacy constituted by wiretapping, it carefully disclaimed any intent to affect this area -- partly in response to the concern that it might have no power to do so. See 18 u.s.c. §2511(3), which is discussed at length in the Keith case. The Department has not heretofore ta.~er. that view of the statute, and to do so for the first time in connection with the present prosecution would -- in addition to reaching only post-1970 activities -- raise the difficulties concerning fair- ness, the defense of mistake of law, and jury reaction discussed below in connection with newly imposed requirements regarding the character of presidential authorization. The Department does not wish, how~ver, to make a final deter- mination concerning the future interpretation it will accord section 3623(d) in the distorting context of the present pro- ceeding, where any position other than that set forth above would have the flavor of retroactive legislation. If in the future any mail opening, based on express, properly limited Presidential authority, is contemplated, we would regard as a necessary preliminary step to assure its lawfulness the issuance of an advisory opinion by the Attorney General concerning the effect of section 3623{d) upon section 1702. A roved For Release 2008/11/06: CIA-RDP04M01816R000502010009-4