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e· Approved For Release 2008/11/06: CIA-RDP04M01816R000502010009-4 42 of law that the defense normally would require. Notwithstanding this, the Department believes that the circumstances of the case could very well induce the trial court to instruct the jury on a mistake of law defense broader than that generally recognized, perhaps on the ground that a reasonable belief in lawful authority would negate the intent that section 1702 requires.~ . ./ Indeed, in the recent decision ~. o'f the District of Columbia Circuit Court in the Barker and Martinez case, the prevailing opinions of two judges concluded that expansive variants of the defense properly were available to defendants who, as private citizens, had assisted a White House official in what purported to be a national security search. Judge Wilkey concluded that the defense properly·would 3f/ Certain staff documents prepared in the CIA at several points in the East Coast Project's operation expressed the view that, under generally applicable domestic statutes, mail opening was unlawful. These documents, however, were not prepared by attorneys; they were not, in any sense, considered legal judg- ments; they did not conclude that, because of unlawfulness, the project should be terminated. To the contrary, their point j appears to have been that the apparent unlawfulness would ser- iously embarrass the Agency if the program were exposed, perhaps especially because .the true purpose and authorization of the project could not be exposed in justification. The Department accordingly does not believe it likely that such documents can be taken as indicating that the defendants subjectively were aware that the project was legally unjustified, or refute their probable defense that they believed it proper in the exercise of presidential power, supervening generally applicable law, to 'v, protect the national security. · A roved For Release 2008/11/06: CIA-RDP04M01816R000502010009-4