ATTORNEY GENERAL'S REPORT ON INVESTIGATION OF MAIL INTERCEPT OPERATIONS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80M00165A001900130003-8
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 63
• Document Creation Date: December 15, 2016
• Document Release Date: February 10, 2004
• Sequence Number: 3
• Publication Date: February 1, 1977
• Content Type: NOTES

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1 February 1977
NOTE FOR: General Counsel
SUBJECT : Attorney General's Report on
Investigation of Mail Intercept
Operations
I agree with your recommendat on.s for
distribution of the subject report to senior
Agency officials and for preparation of an
employee bulletin covering the key findings,
The employee bulletin should be submitted for
my approval.
E. M Knoche
Acting Director
ff"SSY MR
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1 February 1977
NOTE FOR: E. H. Knoche
ADCI
SUBJECT : Attorney General's Report on Investigation of Mail
Intercept Operations
The General Counsel has forwarded the subject report with
a recommendation that it be distributed to designated senior
Agency officials and that a notice pertaining to it be dis-
tributed to employees. I recommend you approve both.
I have highlighted portions that may be of interest to
you, mainly at the beginning and end.
tI
25X1
Attachment:
As stated
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OGC 77-0596
26 January 1977
MEMORANDUM FOR Acting Director of Central Intelligence
FROM Anthony A. Lapham
General Counsel
SUBJECT Attorney General Report on. CIA Mail
Opening Activities
1. I am forwarding for your information a copy of the Attorney
General's 57-page memorandum of 14 January, designated as the "report
of the Department of Justice concerning its investigation and prosecutorial
decisions with respect to CIA mail opening activities in the United States. "
In a letter of 19 January to Mr. Bush transmitting a copy of the report,
the Attorney General also suggested that the Agency might want to dis-
tribute it to appropriate officials within the Agency since "the report
discusses standards governing current conduct." I believe the report
warrants at least the distribution indicated below for an additional reason;
namely, that it sets out in considerable detail the steps taken by the
Department of Justice in arriving at the decisions and the various factors
which entered into the Attorney General's decisions. It is clear that the
Attorney General exercised the prosecutorial discretionary authority and
responsibility on the basis of the highest professional and ethical standards.
Critics perhaps could disagree with his decisions - they could not, in
my view, criticize his methods or his standards.
2. It might be desirable also to distribute a summary of the report
in the form of a notice to all employees. I will mention this at one of the
0900 meetings in the next few days after you have had an opportunity to
read the report and to consider whether wide distribution would be
desirable,
25X1
cc: DDA DDS&T Theg I., r
DDO D/DCI/IC OLC
DDI D/DCI/NIO Insp for General
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(Mf v of t1.e . t xztep Oezterut
tt fait #~ . cr. 2653.0
Honorable George Bush
Director, Central
Intelligence Agency
Washington, D.C. 20505
I am enclosing for your information a.
copy of the report of the Department of Justice
concerning its investigation and prosecutorial
decisions with respect to the opening of mail
to and from foreign countries during the years
1953 and 1973. Since the report discusses stand-
ards governing current conduct, I thought that:
you might want to distribute it to appropriate
officials within your Agency for their guidance.
Sincerely,
Attorney General
~~JI
d w a r eLVi
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.January 19, 1977
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egar#menfof iUfte
FOR IMMEDIATE RELEASE
JANUARY 14, 1977
AG
202-739--2028
'NOTE TO NEWS MEDIA:
Attached, for immediate release, is a. copy of the
report of the Department of Justice concerning its
investigation and prosecutorial decisions with respect
to CIA mail-opening activities in the United States.
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concerning the projects. In August 1976 the Criminal Division
submitted to the Attorney General a report summarizing the
evidence it had acquired, and analyzing the legal questions that
potential prosecutions would present. The report concluded that
it was highly unlikely that prosecutions would end in criminal con-
victions and recommended that no indictments be sought.
Because of the importance of this recommendation and its
conclusion that a prosecution would so likely fail, the Attorney
General and the Deputy Attorney General asked the Criminal
Division to review its analysis and findings, and in addition asked
experienced criminal lawyers in the Tax Division to undertake a
review. As part of the review process, three experienced United
States Attorneys, and two specially appointed consultants, Pro-
fessors,Herbert Wechsler and Philip B. Kurland, were asked to
participate in an evaluation of the recommendations with the
Attorney General, the Deputy Attorney General, the Solicitor General,
and the Assistant :attorney General for the Criminal Division.l/
1/ In the course of these deliberations, it became clear that
no decision to prosecute could responsibly be made on one of the
two mail opening projects -- the West Coast Project which is des-
cribed on pages 20-21, infra -- within the five year statute of
limitations set forth in 18 U.S.C. ?3283. In any event, it was
the unanimous view that, because the West Coast Project was of
relatively brief duration, small in scale, and directed only to
incoming mail, any potential prosecution inevitably would focus
on the CIA's East Coast mail openings, described on pages.7-19.
These openings ended in early 1973, and only the last'year of the
project is within the.statute of limitations. This is enough,
however, to allow a prosecution to be commenced with respect to
these acts and the entire agreement, dating to 1953, to open mail.
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Report of the Department of Justice Concerning
Its Investigation and Prosecutorial Decisions
with Respect to Central Intelligence Agency Mail
Opening Activities in the United States
The Department of Justice has decided, for reasons dis-
cussed in this report, not to prosecute any individuals for
their part in two programs involving the opening of :ail_
to and from foreign countries during the years 1953 through 1973.
On June 11, 1975, the President trarnaa_t-ted to the Attor-
ney General the Report of the Commission on CIA Activities within
the United States (the Rockefeller Conanission). The President
asked the Department of Justice to review the materials collected
by the Commission, as well as other relevant evidence, and to
take whatever prosecutorial action it found warranted. At the
direction of the Attorney General, the Department's Criminal
Division conducted an investigation to determine whether any
government officer or employee responsible for CIA programs
described in Chapter 9 of the Commission Report, involving the
opening of mail taken from United States postal channels, or
responsible for related or similar activities of the Federal
Bureau of Investigation, had committed prosecutable offenses
against the criminal laws of the United States. Such an investi-
gation was immediately begun by the staff of the Criminal Division
and regular reports on its status were made to the Attorney
General.
'on March 2, 1976, the Senate Select Committee to'Study
Governmental Operations with Respect to Intelligence Activities
acceded to the Department's request that the Criminal Division
be allorOa`c~ RPi~OQiI8ri-D~V90 AD9l19A@39?ession
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The Department has now completed its investigation.
into the mail opening projects and has examined in detail
the elements of the crimes that may have been, committed, the
defenses that might be presented, and the proof that would be
required to establish' the commission of crimes and refute the
expected defenses.
Although the Department is of the firm view that
activities similar in scope and authorization to those con-
ducted by the CIA between 1953 and 1973 would be unlawful if
undertaken today, the Department has concluded that a proseci3-
tion of the potential defendants for these activities would be
unlikely to succeed because of the unavailability of important
evidence 2/ and because of the state of the law that prevailed
during the course of the mail openings program.
It would be mistaken to suppose that it was always
clearly perceived that the particular mail opening programs
of the CIA were obviously illegal. The Department believes
that this opinion is a serious misperception of our Nation's
recent history, of the way the law has evolved and the
factors to which it responded -- a substitution of what
we now believe is and must be the case for what was.
It was until recent years by no means clear that
2/ Important evidence would be missing because of the
great length of time between the commencement of the mail
openings and the holding of a potential trial. Many important
participants in the process have died, and because some.of
th..e, events occurrP. a generation ~??o pm^ r
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the law and, accordingly, the Department's position, would
evolve as they have. A substantial portion of the period
in which the conduct in question occurred was marked by a
high degree of public concern over the danger of foreign threats.
The view both inside and, to some extent, outside the government
was that,. in response to exigencies of national security, the
president's constitutional power to authorize collection of
intelligence was of extremely broad scope. For a variety of
reasons judicial decisions touching on these problems were rare
and of ambiguous import. Applied to the present case, these
circumstances lead to reasonable claims that persons
should not be prosecuted when the governing rules of law have
changed during and after the conduct that would give rise to
the prosecution. They also would support defenses, such as good
faith mistake or reliance on the approval of government officials
with apparent authority to give approval. Whether these argu-
ments would be acceptable legal defenses is not necessarily dis-
poJitive, As Judge Leventhal has reminded use 3/
Our sys to is structured to provide intervention
Points that serve to mitigate the inequitable
Impact of general laws while avoiding the massive
step of reformulating the law's requirements to
meet the special. facts of one harsh case. Prose-
cutdrs can choose not to prosecute, for they are
expected to use their "good sense. . .conscience
3/ United States v. Barker, C.A.D.C., No. 74-1883, decided
May 17, assenting 'opinion), quoting from United States 976 v. Dotterweich, 320 U.S. 277, 285 (1943).
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and circumspection" to ameliorate the hardship of
rules of law. Juries can choose not to convict
if they feel conviction is unjustified, even though
they are not instructed that they possess such
dispensing power.
These factors would make difficult a showing of personal
guilt. The issue involved in these past progra.r-ms, in the
Department's view, relates less to personal guilt: than to
official governmental practices that extended over two decades.
In a very real sense, this case involves a general faSlure.of
the government, including the Department of Justice itself,
over the period of the mail opening programs, ever clearly to
address and to resolve for its own internal. regulation the
constitutional and legal restrictions on the relevant aspects
of the exercise of Presidential power. The actions of Presi-
dents, their advisors in such affairs, and the Department it-
self might have been thought to support the notion that the
governmental power, in scope and manner of exercise, was not
subject to restrictions that, through a very recent evolution
of the law and the Department's own.thinking, are now con-;-
sidered essential. In such circumstances, prosecution takes
on an air of hypocrisy and may appear to be the sacrifice of
a scapegoat -- which increases yet again the likelihood of
acquittal. And in this case, an acquittal would have its own
costs -- it could create the impression that these activities
are legal, or that juries are unwilling to apply legal principles
rigorously in cases similar to this.
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Where a prosecution, whether successful or not,
raises questions of essential fairness, and if unsuccess-
ful could defeat the establishment of rules for the future,
the Department's primary concern must be the proper opera-
tion of the government for the present and in the future.
The Department of Justice has concluded, therefore, that
prosecution should be declined. At the same time, however,
the need of eliminating legal ambiguities and of guiding
future conduct in this field demands a precise public state-
merit of the Department's position on the law --- namely, that
any similar conduct undertaken today or in the future would
be considered unlawful. Ordinarily public announcements of
reasons for declining prosecution are not made, for they may
invade the privacy of the potential defendants and charge them
with misconduct while denying them an opportunity to respond
in court. The circbwtstances of this case justify an exception
to that rule.. Public--.tion of the Rockefeller Commission and
enatte Select Committee reports, with their extensive descriptions
DE the mail opening programs, substantially diminishes any harm
to the potential defendants' reputations that could be caused
by public explanation of the Department's position. The harm
is further diminished by the description of the circumstances
and the considerations of fairness on which the Department's
decision not to prosecute ultimately rests.
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I. SUMMARY DESCRIPTION OF ORIGINS, CONDUCT AND
TERMINATION OF CIA MAIL OPENING ACTIVITIES
IN THE UNITED STATES.
Investigations conducted by the Rockefeller Commission,
the Senate Select Committee, and the Department of Justice dis-
close that between 1953 and 1973 the CIA engaged in five
separate projects involving the opening of mail in United
States postal channels. The "East Coast Project" began. in 1-953
and ended early in 1973; the "West Coast Project" was carried
out intermittently from 1969 to 1971. Three remaining projects
were of brief duration and ended more than a decade ago.. Pro-
secution for violations arising out of all but the East Coast
Project is barred by the statute of limitations.
A. East Coast Mail Project
In 1952 the CIA, investigating the possibility of gain-
ing positive. and operational intelligence information from first-
class mail to or from the Soviet Union, found that all such mail
was sent through postal facilities in the New York City area.
Postal inspectors were contacted and, with their cooperation,
plans were made for CIA personnel to conduct surveillance of
United States-Soviet mail.
In February 1953, when the program was implemented,
CIA personnel from the Office of Security were permitted to
examine and copy (by hand) information from envelope exteriors
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under the close supervision of a.postal inspector, but they
were admonished that the mail could not be tampered with or
delayed. From the very outset of this operation, however,
the CIA planned to convert the project into a mail opening
operation. The major obstacle to accomplishing this goal was
the constant presence of a postal inspector. The CIA thought
that if it could establish procedures to photograph the ex-
terior of the mail, it could obtain relatively unsupervised
access to the mail..
Such an expansion of the operation required contact
by Director of Central Intelligence ("DCI"') Allen Dulles with
postal officials. An undated memorandum prepared by the CIA's
Director of Security in late 1953 noted that the New York
mail operation was at that time confined to the inspection of
covers only. It recommended that the project be discussed
as soon as possible with the President and that a secret White
House direct ve be issued jointly to the Central Intelligence
Agency and the Post Office Department requesting those organiza-
tions to make a "study" on the subject of the censorsh of
foreign mail, The memorandum noted that.the CIA could then
disclose its desires and requirements to the Post Office De-
partment and take steps to implement the program on an expanded
scale. This memorandum was not formally transmitted to Dulles
but, on January 4, 1954, the Director of Security forwarded
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a memorandum to Dulles which recommended that CIA seek ex-
panded access to the mails from the Postmaster General for
the purpose of photographing covers; the Director of Security
also recommended that the "oral approval" of the President
be obtained.
In May 1954 Director Dulles, accompanied by then Chief
of Operations Richard Helms, briefed Postmaster General
Arthur Summerfield about the CIA's desires for expanded access,
and means to photograph envelope exteriors. The Chief Postal
Inspector agreed to permit such photographing. A contempor-
aneous CIA memorandum of that briefing makes no reference to
any discussion of mail openings. The Chief Postal Inspector
specifically recalled, in a 1975 interview, that DCI Dulles
argued that the Soviets opened mail and, therefore, that the
CIA's efforts were unfairly circumscribed by American postal
practices. However, the Inspector, now deceased, recalled
that he had told DCI Dulles that any opening of letters would,
in his view, be a violation of postal law.
Following this briefing, the CIA obtained private
rooms at two New York postal facilities. Although some informa-
tion suggests that a very few selected openings may have
occurred as early as July 1953, available evidence indicates
that the selective opening and reading of letters with some
regularity began in late 1954.
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The Department has been unable conclusively to estab-
lish whether, as recommended in the January 4, 1954, memoran-
dum, and as suggested by certain individuals in testimony
before the Rockefeller Commission and Congress and in state-
ments to Department representatives, the CIA obtained authoriza-
tion from President Eisenhower to open and read mail. There
is, however, evidence suggesting that President Eisenhower
had knowledge of and had approved the CIA's East Coast opera-
tion.
Opinions regarding President Eisenhower's knowledge
and approval were expressed by close associates of both
President Eisenhower and DCI Dulles. Their judgments are
based on experience with government operations,. and their
own knowledge of the individual characteristics and habits
of Eisenhower and Dulles. For example, one high level official
stated that no substantial CIA operation would have been
undertaken withoiut at least tacit White House approval. Another
expressed the opinion that the CIA mail operation was the
type of operation which would have been cleared with President
Eisenhower by Allen Dulles. This same official recounted a
Cabinet level discus ion with President Eisenhower in which
the reading of incoming Soviet mail was raised, but he was
uncertain about the context in which the subject was dis-
cussed. Still another official in the Eisenhower Adminis-
tration said it is "inconceivable" that Allen Dulles would
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have embarked on any program as sensitive as the East Coast
mail intercept without first informing the President. Former
associates of Allen Dulles stated that Mr. Dulles was most
conscientious about keeping'President Eisenhower informed of
4/
the operations of the CIA. A former close associate of
Mr. Dulles indicated that in about 1960 he was officially
advised by a Dulles assistant that Mr. Dulles had informed
President Eisenhower of the CIA's mail intercept project.
The absence of any conclusive evidence of presidential
authorization should be considered in light of the well-
observed, but seldom discussed, practice described as "plausi-
ble deniability" or "presidential deniability." Knowledgeable.
witnesses have noted that there existed in high government
circles a long-standing aversion to making written records of
presidential authorizations of sensitive intelligence-related
5/
operations. It was thought that the conduct of foreign
4/ Foreign intelligence matters were of great interest to
President Eisenhower, and he frequently consulted with DCI
Allen Dulles and his brother, Secretary of State John. Foster
Dulles, concerning such matters.
5/ An example of this practice is the handling of the U-2
matter. According to high level officials, President
Eisenhower personally approved all U-2 overflights, including
the one in which an American pilot was shot down over Soviet
territory just before the 1960 Paris summit conference. One
former Eisenhower aide had first-hand knowledge that President
Eisenhower made his U-2 approvals orally, and that no written
records of such authorizations were made.
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affairs frequently required the practice of non-recordation
of such presidential authorizations. Covert actions were,
by National Security Council definition, designed so that
the United States Government could plausibly disclaim any
responsibility for them. The concept of plausible or
presidential deniability had been extended by interpretation,
custom and usage to cover all sensitive intelligence
activities. Moreover, the minutes of the President's Foreign
Intelligence Advisory Board contain expressions of concern
covering the relevant period from 1956 onward. For example,
the minutes contain such phrases as the President's shield,"
and "need to protect the President against public identifi-
cation with . . . covert activities or intelligence activities,"
and "for security reasons, every effort would be made to
leave no papers with the President."
In 1955 responsibility for the East Coast Project
was given to the Counterintelligence (CI) Staff of the CIA.
An o-r L.;line of the funding,-j, staffing and other logistical needs
of the East CoazL Project noted that foreign espionage agents
relied upon the United States policy of respecting the sanctity
of the mails and that these agents used the mails for espionage
purposes to the detriment of the United States. It noted
that, although the project did not contemplate censorship,
discreet monitoring (opening) would be conducted and that
under CI staff management "more letters will be opened." '
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In 1958 the FBI was advised of the existence and extent
of the CIA's East Coast mail project, and the CIA offered to
share the project's "take" with the FBI. FBI Director Hoover
gave his approval, and the FBI provided the CIA with the
names and categories of persons or organizations in, which it
had an espionage or counterespionage interest. Such lists
were used as additional guides by the CIA in making selections
from the United States-Soviet mail that passed through the
CIA checkpoint.
On February 15, 1961, following the election of
President Kennedy, DCI Allen Dulles, Deputy Director of Plans
Richard Helms, and another CIA officer met with newly appointed
Postmaster General J. Edward Day. According to Mr. Day's
recollection, Dulles said he came to tell him of "something
secret" regarding the CIA and the mails. Exactly what Day
was told is not clear. A contemporaneous CIA memorandum of
the 1961 meeting strongly suggests that Day was told by Dulles
of mail openings being made by the CIA. On the- other hand,
in 1975 Day averred that,while his memory of the 1961 meeting
might be faulty, he recalled that Dulles offered to tell him
of a secret CIA mail operation but that he (Day) declined the
invitation to be briefed. Day, however, remains uncertain.
Three months later DCI Dulles approved continuation of the
project on the basis of its value to the intelligence opera-
tions of the CIA.
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The Department's investigation has not definitively
established whether Presidents Kennedy and Johnson were aware
of the East Coast Project. President Eisenhower authorized
Allen Dulles to brief President-elect Kennedy on all signifi=
cant intelligence operations conducted by the CIA and other
intelligence agencies.. President-elect Kennedy met with
Mr. Dulles on several occasions during and after the transi-
tion period to discuss such operations, but the Department
has not been able to determine whether the East Coast Project
was covered during the briefings.
In 1965, prompted by hearings held by Senator Edward
V. Long concerning possible legislation to abolish mail covers
by federal agencies, a high CIA official learned that President
Johnson apparently had not been briefed on the East Coast
Project and "gave instructions that steps should be taken to
arrange to pass (information concerning the project) through
McGeorge Bundy to the President after the (Long) Su.,,Obcommittee
has completed its investigation." Mr. Bundy does not. recall
being informed of the East Coast Project, and no documentary
record than indicates such instructions were carried out has
been found, Richard Helms testified that he believes he may
have advised President Johnson of the East Coast project in
the spring of 1967 at a meeting during which the President
requested information concerning sensitive CIA operations.
Again, no direct evidence corroborating or refuting Mr.
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Interviews with former high level officials within. the
Kennedy and Johnson Administratons, however, disclose that
Presidents Kennedy and Johnson were briefed on a regular
basis by CIA officials about sensitive CIA operations. One
former Cabinet official in both the Kennedy and, John scan A.drni.n-
istrations stated that he was aware that mail openings were
being conducted in the United States, although he did not
know details of particular projects or their scope. The Cabinet,
officer stated that he believed Presidents Kennedy and Johnson
were generally aware that the CIA was engaging in operations
similar to the East Coast Project.
Interviews of individuals who served as members of
the President's Foreign Intelligence Advisory Board (PFIAB)
during the Kennedy and Johnson Administrations indicate that
these individuals were aware of domestic mail openings by the
CIA and FBI. PFIAB had the responsibility to review and
assess the activities of the CIA and other agencies with. foreign
intelligence responsibilities and to advise the President on
such matters. One PFIAB member, who served until 1968, stated
that the PFIAB gave detailed briefings to the President; more-
over, he stated his belief that the President would "have
to be in a fog" to be unaware of the fact that techniques
such as mail openings were being used. Again, however, the
practice of "plausible deniability" was frequently raised by
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persons knowledgeable of government intelligence practices
as a possible explanation for the absence of any written
records of presidential knowledge or authorization for the
East Coast Project.
With the inception of Operation CHAOS, designed to
determine the extent of hostile foreign influence on domestic
unrest, the East Coast Project assumed a new intelligence-
related purpose. In addition to Operations CHAOS, the
project sought to develop positive foreign intelligence, such
as information on Soviet crop and living conditions and popu-
lation movements. Moreover, operational support intelligence
was sought such as information on the postal censorship and
secret writing techniques of the USSR, and there was a counter-
intelligence purpose to assist the United States in meeting
and neutralizing Soviet intelligence activities.
In July 1969 the CIA Inspector General's staff
examined the East Coast Project and recommended that, although
President Eisenhower apparently had authorized the project,
if the CIA were to continue to administer the project, senior
officials within the Nixon Administration should be briefed.
In 1969 William Cotter, a former CIA employee
aware of the East Coast Project, was appointed Chief Postal
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Inspector. Concerned that other top level postal officials
were unaware of the project, in 1970 Cotter informed the
CIA that either the Postmaster 'General would, have to be
apprised of the East Coast Project or it would, have to be
discontinued. Cotter pressed his reques:tt in. January 1971.
This caused a reevaluation of the merits of the East Coast
Project. A CIA memorandum dated March 29, 1971., strongly
urged continuation of. the project, describing it as "an
irreplaceable tool for the exercise of the Agency's
counterintelligence responsibility." The memorandum noted
that the counterintelligence information developed by the
project was also of assistance to "the White House, the
Attorney General and the FBI."
The CIA's senior officials decided to continue the
project. In June 1971, to meet Cotter's concerns, Director
of Central Intelligence Helms separately briefed both
Attorney General John Mitchell and Postmaster General
Winton Blount. There is dispute as to what the briefings
encompassed. A contemporaneous CIA memorandum indicates
that Mitchell and Blount were informed of the East Coast
Project and agreed to its continuation; Helms testified
before the Rockefeller Commission that he informed them fully
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about the nature and scope of the mail opening project,
Mitchell and Blount, though they acknowledge that there
may have been a general discussion of mail covers, state
that they were not informed about the opening of mail.
Former President Nixon has stated that he was aware
of the CIA's monitoring of mail between the United States
and the Soviet Union and the Peoples' Republic of China,
but he disclaims any knowledge of mail openings, and the
Department has uncovered no direct evidence which suggests
that former P] ident Nixon was ever specifically informed
of the mail opening projects. It appears, however, that
during the Nixon Administration the White House was receiving
intelligence reports that enabled White House officials to
determine that mail was being opened. John D. Ehrlichman,
a White House official in the Nixon Administration, testi-
fied before the Senate Select Committee that, from his
reading of intelligence reports, he was able to determine
that mail was being int ,rcepted, presumably by the CIA.
With the resignations of Postmaster General Blount
in 1971 and Attorney General Mitchell in 1972, Chief
Inspector Cotter again believed himself to be the only
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senior government official outside the CIA and FBI with
knowledge of the East Coast Project. He again informed
CIA officials that, unless higher level approval for the
project was obtained by February 15, 1973, he would withdraw
the Postal Service's cooperation. James Schlesinger, who
had succeeded Helms as DCI, decided that the foreign in.-
telligence and counterintelligence information derived
from the project did not outweigh the risk of embarrass-
ment and potential public repercussions presented by its
continuation. On February 15, 1973, the East Coast
Project was suspended and, in effect, terminated.
Whether the failure of the Department's investi-
gation to uncover any direct evidence, written or oral,
of presidential knowledge or authorization was caused
by the nonexistence of such knowledge or authorization,
by confusion of mail openings with "mail covers," which
were generally viewed as legitimate, or by the passage of
time and the "presidential deniability" concept discussed
above, cannot be determined. However, on the existing
record, the government could not prove in a criminal prose-
cution beyond a reasonable doubt that the East Coast Project
was conducted without presidential approval or without
presidential knowledge and acquiescence.
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B. West Coast Project
The West Coast Project was proposed in 1969 by
CIA officials within the CIA's Plans Directorate for the
purpose of obtaining foreign intelligence concerning the
Peoples' Republic of China. The CIA was particularly in-
terested in censorship techniques used by the Peoples'
Republic of China, and the project was intended to evaluate
such techniques through a survey of mail entering the
United States from the Peoples' Republic of China. Initially,
it was contemplated that the project would entail only
the inspection of envelope exteriors. Approval of the
project by postal officials was secured for a survey of
envelope exteriors.
The West Coast Project, conducted in or near San
Francisco, involved four separate surveys of mail between
1969 and 1971., The first survey took place in September,
1969 and lasted five days, Approximately 1,600 envelopes
of ?ncomi g mail were screened during this period. No mail
was opened in this initial survey, which apparently was
undertaken without approval by top level CIA officials.
The lower level officials responsible at that time for the
project deemed this initial survey successful and concluded
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that a broader scale survey of mail should be undertaken
in order to evaluate Chinese intelligence techniques.
During 1970 and 1971, three additional surveys were con-
ducted by CIA officials in San Francisco, each lasting
two or three weeks. In each of these surveys, only in-
coming mail from the Peoples' Republic of China was opened,
apparently without the knowledge of the postal officials
who cooperated by providing CIA officers with access to
the mail. Approximately 550 pieces of mail were opened
by the CIA during the course of the project. After the
project's 1971 phase, no further West Coast operations
were undertaken.
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II. GROUNDS FOR PROSECUTION, POSSIBLE DEFENSES, AND
EQUITABLE CONSIDERATIONS
A. Grounds for prosecution.
The Department of Justice has considered two statutory
bases for prosecution of persons who participated in the East
Coast Project, The first; 18 U.S.C. ?1702, prohibits the
unauthorized opening or obstruction of mail in United States
postal channels; the second, 18 U.S.C, ?241, proscribes
conspiracies to deprive United States citizens of rights
guaranteed by the Constitution. Under the general conspiracy
statute, 18 U.S.C. ?371, liability would extend to persons who
agreed to take part in violations of sections 241 or 1702,
whether by opening the mails, by approving the openings, or
by acting in concert with others who opened the mails.
Aprosecut_ion under section 241 requires proof of a
violation of rights conferred on American citizens by the
Con;titution or laws of the United States; with regard to
the mail ~apenings, the prosecution would be pr. raised upon a
violation of the Fourth Amendment's prohibition against
unreasonable searches and seizures. A prosecution cannot be
maintained under.. section 241, however, unless it can be
established that the defendants acted, or agreed to act, with
the purpose of invading rights or interests protected by
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the Constitution or by federal laws and that, at the time the
defendants acted, protection of the right or interest violated
6/
had been "made definite by decision or other rule of law."~
Weaknesses in the evidence and the difficulty of establishing
the absence of presidential authorization suggest that the
Department would not be able to meet the burden of establishing,
beyond a reasonable doubt, that the defendants acted with the
"specific intent" required by section 241 as interpreted by
the Supreme Court. Moreover, it is doubtful that, at the time
the defendants acted, the Fourth Amendment forbade their actions
with sufficient clarity to be "definite;" between 1953 and
1973 there was substantial evolution of Fourth Amendment law,
as discussed later in this Report.
In a prosecution under section 1702 the Department would
not be confronted with similar difficulties. All that is
required to establish a prima facie violation of section 1.702
is a showing that (a) the defendant opened mail in postal
channels with "design to obstruct the correspondence, or to
pry into the business or secrets of another" and (b) the
defendant lacked lawful authority to do so.
6/ See Screws v. United States, 325 U.S. 91 (1945). See
also Unites -States v. Price, 383 U.S. 787, 806 n. 20 (1966);
Anderson v. Unite States, 417 U.S. 211 (1974).
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Whether the openings of mail in the present case
violated section 1702 depends upon two related points:
First, was authorization, from a person empowered to give
7/
such authorization, obtained for the East Coast Project?
Second, if some authorization was obtained, was it effective?
Resolution of the latter question requires a consideration of
whether the Fourth Amendment to the Constitution permits
officials of the Executive Branch to authorize the opening
and reading of international mail and, if so, under what con-
ditions and by what means. We turn to a consideration of
those problems.
B. The requirement of lawful authorization,
Some courts have treated section 1702 as a specific
intent statute,whieh would make prosecution overwhelmingly
difficult. The Department of Justice believes, however, that
a better view of the law is taken by the courts, which have
treated :Lt as a "gaineral intent" statute, providing that persons
shall not open envelopes moving through the mails. Its pro-
hibition does not, however, extend to openings that have been
lawfully authorized. Thus, other statutes (see, , 19 U.S.C.
9482) authorize the opening of envelopes under specified cir-
cumstances, and. acting under its general powers the Postal Service
7/ Since no statute authorizes the CIA to intercept or open
mail in United States postal channels, legal authority for
the East Coast Project could be derived only from powers
granted to the President by Article II of the Constitution and
delegated by him to the CIA or others.
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itself opens envelopes when necessary to ascertain the address
of the intended recipient. Indeed, unless there were an
"authorized opening" exception, a law enforcement official whoa
opened mail pursuant to a judicial warrant would violate the
statute.8/ See United States v. Van]Leeuwen, 397 U.S. 249 (1970
The Department of Justice consequently believes that the actions
of the CIA in opening mail also would not violate section 1702,
if those actions were properly authorized 9/
8/ An 1882 decision interpreting a statutory predecessor
to section 1702 stated that "one is punishable who wrongfully,
without any authority of law, or pretence of authority," inter-
feres with the mail. United States v. McCrea y, 11 Fed. 225,
236 (W.D. Tenn. 1882).
9/ Neither section 1702 nor any other statute purports to
take from the President, and the Executive Branch in general,
any preexisting power to open and examine mail when necessary
to the discharge of the President's constitutional responsibility
for foreign affairs. Cf. United States v. Butenko, 494 F.2d.. 593
(3rd Circ.) (en bane), certiorari denied, 419 U .S. 881 (1974),
which holds tFa-t an analogous statute, although containing a
broadly stated prohibition, does not affect presidential power to
authorize surveillance when the Constitution otherwise permits it.
One other statute, 39 U.S.C. ?3623(d), might be considered
to do so. That statute forbids the opening of domestic first-
class mail without a warrant. Nothing in the legislative history
of section 3623(d) indicates that it was designed to affect the
power of the President concerning foreign affairs. See, ems., H.R.
Conf. Rep. No. 91-1363, 91st Cong., 2d Sess. 88 (1970).
Although section 3623(d) originated in the Espionage Act of 1917,
40 Stat. 230, it then contained only a statement that the Act did
not affirmatively authorize, the opening of mail. Nbreover., it applies only
to letters of "domestic origin," and so would not affect the open-
ing of mail entering the United States from abroad. Finally,
(continued on following page)
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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 taken 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 wi.th newly imposed requirements regarding
the character of presidential authorization.
The Department does not wish, however, 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, ~ ~iere 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 Qrel-i:rinary 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.
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We think it clear that the prosecution could not
establish beyond a reasonable doubt, as it would be required
to do, that the East Coast Project was not authorized by
the President, or by someone entitled to act for the
President. The effect this would have on the legality of
the mail opening program has changed considerably over the
last 20 years; the authorization (which the court would be
required to assume if the prosecution could not prove lack:
of authorization beyond a reasonable doubt) may have been
sufficient at the outset to satisfy the requirements of the
Fourth Amendment, but the understanding of the requirements
of that Amendment has not remained constant.
The CIA mail opening program was initiated and took
shape during the 1950s. Later operations were a continuation
of this program with changes in emphasis. During the 1950s,
and well into the 1970s, the law concerning clandestine
surveillance was quite different, and the requirement of
prior judicial authorization was different. Indeed, until
1967 respected scholars argued that the judiciary was the
wrong branch of government to make authorization decisions concern-
ing any clandestine surveillance; until 1972 courts held
that prior judicial scrutiny was unnecessary when the sur-
veillance involved national security; and at the present
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time the case law indicates that prior judicial scrutiny
is not necessary when surveillance of foreign powers or
their agents is involved,
10/
The Supreme Court indicated long ago that sealed
domestic mail may not be opened in the absence of a search
warrant, This ruling was based upon the expectation of
privacy enjoyed with respect to the contents of first-class
mail; that privacy was guaranteed by statute, and courts
held that other classes of mail could be opened without
judicial authorization. Those who send or receive mail
crossing the border of the United States do not enjoy the
same expectation of privacy as those sending or receiving
domestic first-class mail, Customs Service officers are
permitted by law to open all envelopes for necessary in-
11/
spections. There may also be other reasons.why inter-
;national and domestic mail should be treated differently.
10/ Exparte Jackson, 96 U.S. 727 (1877),
ll/ 19 U. S . C, ?482.
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The expectation of privacy in the contents of international
mail therefore cannot easily be equated to the expectation
of privacy in domestic mail.
No cases have dealt with the surreptitious opening
of international mail to gather foreign intelligence or
counterintelligence information, but there is a close
analogy in the interception of wire communications. In
neither case is property taken; in neither case is a person
delayed or physically inconvenienced. But in both cases
private communications are intercepted, and the constitutional
question becomes whether this intrusion must be authorized
in advance in a specified way.
The Supreme Court's first constitutional decision
concerning wire interceptions was Olmstead v. United States,
277 U.S. 438, which was handed down in 1928. Olmstead held
that telephone conversations could be overheard without prior
judicial approval. The Court set out two major rationales for
its holding; first, that the interception of wire communication
does not "seize" anything within the meaning of the Fourth Amend-
ment because there is no physical trespass and it does not
prevent the parties from conversing; second, that the Fourth
Amendment does not reach beyond the home or office to the
whole world into which communications may be sent. Under the
standards of Olmstead, which was the law when the CIA
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mail opening programs began, there was apparently no
constitutional need for judicial approval of a program
of covert openings of international mail, so long as the
mail was resealed and sent on to its destination without
censorship.
The law established by Olmstead did not begin to
change until 1961, when the Supreme Court decided. in
Silverman v, United States 365 U.S. 505, that the Fourth
Amendment applied to a listening device or "bug" placed
by physical trespass in the wall of an office, even though
the device did not prevent conversations from taking place.
Silverman, however,left the remainder of the Olmstead analysis
untouched.
During these years there also were serious questions
whether the judiciary was empowered under Article III of the
Constitution to issue surveillance orders. Respected 13/
12/
scholars and at least one Justice of the Supreme Court
argued that surveillancc. orders issued ex parte were not
part of a "case or controversy" if they were not part of a
criminal prosecution, and so judges lacked power to issue
them. They argued, as well, that surveillance orders could
12/ See, ems., Telford Taylor, Two Studies in Constitutional
o
93 (
9)
Tnterpretationa Search, Seizure, an Survei ance 77
13/ Osborn v. United States, 385 U.S. 323, 353 (1966) (Douglas,
J .. ,.concurring) .-
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not be classified as "warrants" under the Fourth Amendment
because they were not designed to seize identifiable things
and were not "returned" to the issuing judge in. the historical
fashion. Other objections, too, were raised. Resort to the
judiciary, it was said, would diffuse responsibility and
accountability for surveillance; responsible executive officials
should authorize surveillance when necessary, and the Consti-
tution would not forbid this practice.14/
In 1967, in Katz v. United States, 389 U.S. 347, the
Supreme Court both overruled Olmstead and indicated that judges
were empowered to issue surveillance orders in criminal cases.
Katz held that the Fourth Amendment protects people, not places,
and that law enforcement officers ordinarily must obtain
advance judicial approval before intercepting communications
in which there is a legitimate expectation of privacy.
Katz, however, did not resolve the question of whether a
judicial warrant was available in non-criminal cases or whether
it was necessary when national security was involved. The
Supreme Court did not speak to the latter question until June 19,
1972, when it decided United States v. United States District
Court (Keith), 407 U.S. 297. The United States argued in that
14/ See, e.g., Taylor,supra, at 90.
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case that the requirement of prior judicial approval should
not apply to surveillance carried out to gather information
about domestic security and foreign intelligence -- an
argument which would, of course, support the propriety of
the CIA mail opening programs as well as of wire interceptions
for that purpose, The Supreme Court rejected part of the
argument and held that a warrant is required for electronic
surveillance in domestic security investigations. The Court
made it clear, however, that it was setting aside a lengthy
history of contrary practice,15/ and that it was reserving for
decision in the future all questions concerning the procedures
required to be used to gather foreign intelligence.16/
The East Coast Project ended eight months after Keith
was decided. Keith affected the propriety of warrantless
foreign intelligence surveillance, but it did not decide it.
Those courts which have decided the issue have upheld such
warrantless surveillance, and the Department of Justice has
consistently taken the position in the courts, before congres-
sional committees, and in public statements that the President or
the Attorney General may authorize limited electronic surveillance
of foreign powers or their agents for foreign intelligence
15/ 407 U.S. at 299, 310-311.
16/ 407 U.S. at 308-309, 321-322.
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17/
purposes. The CIA mail opening program was not authorized
with the care and clarity that current practices and, we
believe, the Constitution now require. But these principles
have evolved so rapidly during the last two decades that
they would have sounded strange to those who initiated the
program during the 1950s and continued it during the 1960s.
A retroactive application of newly emaciated. Fourth Amend-
ment principles to persons whose conduct took place before
the principles were established could, of course, not deter
like conduct; and it would be unfair to punish federal
employees for doing things which, as the law then, appeared,
were not illegal. The Supreme Court has held that changes
in Fourth Amendment law should not apply retroactively.
United States v. Peltier, 422 U.S. 531 (1975). That
principle surely applies to criminal prosecutions
against those who may have transgressed the Fourth
Amendment no less than it does to the application of the
18/
exclusionary rule, which was at issue in Peltier.-
17/ Compare United States v. Brown, 484 F.2d 418 (5th Cir. 1973),
certiorari denied, 415 U.S. 96 0(1974); and United States v.
Butenko, 494 F.2d 593 (3d Cir.) (en bane), certiorari denied,
419 881 (1974); with Zweibon v. Mitchell, 516 F.2d 594
(D.C. Cir. 1975) (en bane), certiorari denied., 425 U.S. 944 (1976).
18/ See also Wood v. Strickland, 420 U.S. 308, 321 (1975), which
Holds that certain executive o' icials are liable in damages
for a violation of constitutional rights only if they act in
"ignorance or disregard of settled, indisputable law ...."
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The role of authorization and its legality also is
affected by changes in the law of border searches. It has
long been accepted that things crossing the border are
19/
governed by special rules allowing search.- These
constitutional rules do not allow the government to subject
a person to legal disabilities on account of his lawful
/
communications, 20 , but they allow federal officers to open
the mail without warrants to look for contraband and
21/
dutiable items, including pornography. These rules may
affect the expectation of privacy surrounding international
correspondence. Moreover, the international exchange of
Ideas, especially with citizens of potentially unfriendly
powers, may be on a different footing from the domestic
22/
exchange of ideas.
19/ See Cotzha.sen v. Nazro, 107 U.S. 215 (1882); California
. ankers Avg ri v : hultz ' U. S . 21, 62-63 (1974).
20/ Lamont vr, Postmaster General, 381 U.S. 301 (1.965).
21/ united S r des v. hirt seven Photw gra hs, 402 U.S. 363
413
:es yr 00 tt.K.eeLs o Suer 8 mm. Film,
22/ Kleindienst v. Mandel, 408 U.S. 753 (1972).
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Until 1973 it was widely thought that the border
search rules allowed the inland search of persons and vehicles
near the border for contraband and dutiable items.23/ The
large majority of courts uphold the legality of opening envelopes
at the border.. Six courts of appeals have held that Customs
officers may open envelopes without probable cause or search
warrants to search for contraband, Although one court of appeals
has held to the contrary. The Supreme Court may resolve the
dispute in the coming months.24/ The scope of the "border
search" exception to the warrant clause of the Fourth Amendment
would certainly bear upon the legality of any authorization to
inspect international mail.
The discussion so far has traced changes in the law,
during and after the time of the mail openings by the CIA,
that would affect the lawfulness of a properly authorized
surveillance. The law also has evolved in recent years
concerning the form an authorization must take and the
restrictions that must be observed in exercising any authority
delegated to approve the activities. Questions regarding
the necessity for express delegations by the President of his
constitutional authority and for periodic reexamination of
23/ Almeida-Sanchez v. United States, 413 U.S. 266. The
extent to which A meida-Sane ez altered existing law is dis-
cussed in United States v. Peltier, supra, 422 U.S. at 539-542.
24/ United States v. Ramsey, certiorari granted October 4,
1976, No. 76-167.
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the activities in light of the need for the information and
the intrusiveness of the techniques employed have only
recently been addressed. These questions arise, in this
case, because the presidential authorization for the East
Coast Project -- if there was such authorization -- may have
been presumptive rather than express; that is,it may have
been in accord with the well-established principle applied
in other areas of the law that agency heads are deemed to
have been delegated those inherent presidential powers
necessary to meet the responsibilities of the agency.
Moreover, the approval for the openings was not limited in
time, and responsible officials apparently did not reexamine
the program on a regular basis to determine whether it
should be continued.,
Although the President may, consistent with the
Constitution, authorize certain forms of surveillance to
gather foreign intelligence information without seeking
prior approval from the judicial Branch, the, Department
believes that the evolving law in this area requires such
authorization to be express, The executive official to
whom the power to approve such surveillance has been
delegated must take steps to assure himself that the
surveillance is reasonable under Fourth Amendment standards.
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He must consider the nature of the surveillance and the need
for the information sought in determining whether to approve
the activity,andthen he must periodically reexamine the
activity to ensure that it continues to meet constitutional
standards. In urging the courts to accept executive
authorizations of surveillance, the Department has argued
that in each instance the personal approval.of the President
or his delegate, such as the Attorney General, would be
employed to ensure the degree of consideration and control
25/
necessary under the Fourth Amendment.- Mr. Justice White,
concurring in Katz, indicated that he would accept such.
executive approval of surveillance, but only if it was
explicitly considered by responsible officials and properly
26/
delimited.
It was only recently, in United States v. Ehrlichman,
that a court of appeals concluded that a warrantless foreign
intelligence search may be authorized only by the President or
Attorney General personally, and that the authorization must
25/ See, e.g. the Brief for the United States in the Keith
case.
26/ 389 U.S. at 364.. See also the opinions in United States v.
Brown, supra, and United States v. Butenko, supra.
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38
meet standards of consideration and limitation similar to
those the Judicial Branch Would impose on itself. 27/
The law we have described is of recent vintage. As
was pointed out earlier, it was far from clear until 1967
that the judiciary would become involved in issuing warrants
for surveillance even in criminal cases. Not until after Katz
did courts begin to consider and delineate the requirements
of specificity, personal responsibility, and limited duration
that-today limit the exercise-of Executive Branch powers.
It seems fair to conclude that, at the time the East Coast
Project began, it was assumed that the President could,
without issuing explicit delegations of power, allow others
to speak for "him in this field. So far as the CIA was
concerned, the words of anyone who appeared to be authorized
to speak for the President had the same legal effect as the
President's own words.
27/ No.. 74-1882, D.C. Cir., decided May 17, 1976, slip op. 31.
irlichman invoi~red an inexplicit mandate which gave a general
instruction to accomplish a particular end but did not discuss
the means or techniques to be used to reach that end. Unlike
tthe Ehrlichmau case, there was an aura of presidential authority
permeating the mail opening program for the two decades in
which the technique was used. In addition, the program was not
carried out, as the physical search was in Ehrlichman, by "an
- atniorihous, ad hoc unit with no tradition of public service and no
clear lines of responsibility," slip op. at 30, but by the unit
of government established by Congress for the conduct of foreign
intelligence operations.
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Although President Eisenhower passed upon many foreign
intelligence projects himself, he allowed Allen Dulles to
speak for him on others, and CIA personnel may reasonably
have assumed that Dulles did so with regard to the East Coast
Project. Presidents Kennedy and Johnson often spoke through
their subordinates -- or at least appeared to do so in
order to maintain "plausible deniability." Any CIA personnel
who discussed the matter with Attorney General Mitchell.
might reasonably have assumed that President Nixon acted in
this respect through the Attorney General. Until various
courts rendered several decisions within the past year, there
was little or no indication from the judiciary that
Presidents (or their surrogates) were required to act
through explicit, time-limited orders; 28/ the entire concept
of. "plausible deniability" taught the opposite.
28/ Indeed, even as late as 1976 the courts seemed to accept
an implied authority in the Attorney General without a written
delegation of authority from the President. Ehrlichir-an, su ra.
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C. The Defense of Mistake.
Suppose, however, that it were concluded that present
Fourth Amendment standards equitably could be applied to the
East Coast Project, and that under those standards the author-'
izations -,- if any there were -- would be insufficient to
justify the lengthy and deeply intrusive program that was
actually carried out. The trial court, and the jury, then
would be required to determine whether the defendants made a
mistake, either of fact or of law, sufficient to make them not
culpable for violation of 18 T1.S.C.?1702,
'Mistake of fact generally is recognized as a defense
in criminal cases; mistake of law is not. The present case
would present both kinds of defenses -m mistake of fact to the
extent the defendants reasonably believed there was presidential
authorization for the East Coast Project, if in fact there was
none; I .:d mistake of law to the extent the defendants reasonably
believed that the authorization was legally sufficient, if in
law it was not.
The mistake of fact defense might not have to be
raised by the defendants, since under the circumstances of this
case the prosecution would have difficulty establishing that no
authorization in fact existed. Because of the age of the evi-
dence, the deaths of important participants in the events and
the striving for "plausible deniability" that led to an absence
of written records, the prosecution would be unable to prove .
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beyond a reasonable doubt that there was no presidential
authorization for the East Coast Project. It would therefore,
for practical purposes, have to concede that the mail openings
were authorized and to argue that the authorization.was
ineffective. This would make it unnecessary for the defer.-
dants to raise a mistake of fact defense; the prosecution
simply could not prove beyond a reasonable doubt that there
was no authorization.
This would then lead to the assertion of a mistake of
law defense. Mistake of law generally is recognized as a
defense in criminal prosecutions only when a law or an authori-
tative legal decision or interpretation misled. the defendant
reasonably to believe that his conduct was lawful.29/ Criminal
convictions in such circumstances would impose criminal sanc-
tions for conduct-which the defendant could not reasonably
have known was unlawful.30/ In any potential mail opening
prosecution, however, the normal foundation for the defense
would not be present.. No statute or judicial decision ever
affirmatively established or announced that the mail opening
projects, or conduct closely analogous to them, were
lawful, and Attorney General Mitchell's possible approval of
the projects lacked any indicia of a formal considered opinion
291 See Model Penal Code ?2.04(3)(b) (P.O.D. 1962).
30/ Cf. Bouie v. City of Columbia, 378 U.S. 347 (1964); Brief
for the United States in Marks v. United States, No. 75-708,
argued r il11d P se ? r03/'PW B ff-W46 A'00~gq9d630003-8
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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
of 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, 'i.nder? 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
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
protect the national security.
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apply if the defendants could show facts justifying their
reasonable reliance on the White House official's apparent
authority and a legal theory justifying their belief that
the apparent authority was lawful. Judge Merhige concluded
that a defense would be available if the defendants reasonably
relied on an apparent interpretation of lawful authority by
the White House official.
Even if the trial court did not choose to give an
expansive mistake of law instruction, the Department believes
that considerations of fairness would lead the judge to allow
the introduction of evidence bearing on the defendants' motives
and the circumstances in which they acted -- evidence which
would, in the Department's view, critically influence the jury's
judgment.
D. Problems of Proof.
Even if the prosecution could overcome the argument
that the East Coast Project was adequately authorized, and
even if it could successfully meet the defense of mistake,
still would not follow that the prosecution would be successful.
The prosecution must prove its entire case beyond a reasonable
doubt. Once a defense going to any of the elements of the offense
has been raised, the prosecution must respond by negating that
defense beyond a.reasonable doubt.32_/
32/ See Mullaney v. Wilbur, 421 U.S. 684 (1975).
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Problems of proof are difficult whenever the prose-
cution seeks to prove a crime that took place long ago.
Statutes of limitations -- which for most federal crimes are
five years -- are designed to alleviate these problems by
creating a policy of repose for offenses not prosecuted within
a few years of their commission.33/ Although the statute of
lifsiitations applicable to 18 U. S . C .??17A2 and 371 would allow
a conspiracy prosecution for the entire East Coast Project
so long as any overt act of the conspiracy (such as the opening
of any envelope) were committed within five years of the date
of the filing of the indictment, the technical permissibility
a prosecution could not overcome the enormous problems of
'v-roof entailed in establishing, beyond a reasonable doubt,
ar:lminal culpability for events that took place as long ago
as 1953.
The clearest illustration of the difficulty in mounting
a successful prosecution is the deaths of persons who were major
participants in the events, presidents Eisenhower, Kennedy and
Johnson -ire dead, they cannot disclose what they knew of the
East Coast Project or what they may have authorized. Allen Dulles, J.
cigar Hoove , Postavisters General, several directors of the operating divisions
of the CIA all of them persons who may have given, sought,
or-obtained authorization, or controlled the scope or duration
of the mail openings -- are dead.
,33/- wee "Wul
States V. Lovasco,Neertiorari granted Octo erg , ,
No, 75-1844.
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If documentary evidence reliably establishing
authorization or lack of authorization existed, or if
documentary evidence establishing personal responsibility
for the scope or duration of the East Coast Project could
be found, it might be possible to prosecute successfully
despite the deaths of important persons. But the concept
of "plausible deniability" led the principals to act without
making a "paper trail" that could be used to reconstruct
their acts. The absence of documentary evidence was
intended to frustrate enemies or potential enemies and
to protect Presidents; in practice, at least in this case,
it also has the effect of frustrating the Department's
ability to prove critical facts beyond a reasonable doubt
in court. Whatever use this practice may have had, the
understanding of the present state of the law articulated
here by the Department of Justice requires that it be
eliminated for reasons discussed in part III below.
The gaps and ambiguities in the evidence available in
1977 also would make it difficult to overcome a defense of mis-
taken reliance on what appeared to be proper authorization. In
1953, when the East Coast Project was begun, and for at least a
substantial portion of the period of its operation, there was an
acute consciousness on the part of the public and the government
alike that serious foreign threats -- of both overt aggression
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and covert subversion -- required extraordinary vigilance.
There was widespread, if unjustified, belief that opposition
to government policies, occasionally expressed violently,
was generated, encouraged or supported by potentially hostile
foreign powers, These concerns unquestionably affected per-
ceptions of the government and of presidential power to respond
by using covert activities. These attitudes were reflected in
the men who authorized and conducted the mail openings program,
The reasonableness of their attitudes would influence, in sub-
stantial part, the reasonableness of their beliefs that they
were entitled to act as hey did. A trial of this case there-
fore would open a searching inquiry into the perceptions of a
generation of Americans; it would be, as Professor Wechsler
put it during the course of his consultation with the Department,
to "indict an era" and would raise fundamental jurisprudential
questions ouc'ert ir~g the appppilcation and use of the criminal law.
The defendants in any mail openings prosecution would
be able to present circumstantial evidence to indicate that
Director Allen Dulles secured President Eisenhower's approval
for the East Coast program; at least, the potential defendants
reasonably could have believed and apparently did believe, that he had.
The potential defendants, in any event, continued a program
already begun -- a program that, by the time Richard Helms
became Director of Central Intelligence, had acquired a
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bureaucratic momentum of its own. The Agency's highest
officials could have had every reason to suppose that, within
the government itself, the program was thought fully con-
sistent with the government's purposes, responsibilities,
and powers. Potential defendants could reasonably have
believed that Presidents succeeding President Eisenhower,
and other high officials of the government's intelligence
establishment during this later period, knew at least in a
general way of the fact that mail openings were taking
place and, in a general way, acquiesced in the practice.`
Furthermore, certain senior officials of both the Kennedy
and Johnson Administrations have stated to the Department
that, although they knew neither their nature nor their
scope, they personally were aware of the existence of
mail openings and were convinced that the Presidents under
whom they served must have known as well. In light of such
evidence, the Department almost certainly would encounter
the gravest difficulties in proving guilt beyond a reason-
able doubt.
The weaknesses of the evidence, combined with the changes
in the law during the course of the East Coast Project, make
it unlikely that a prosecution could succeed. An unsuccessful
prosecution in a case of this nature would be most undesirable.
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It would not establish standards to guide future conduct;
to the contrary, an acquittal might be perceived, rightly or
wrongly, as an indication that programs such as the East Coast
Project are not now illegal -- an indication that the Depart-
ment of Justice believes would be most unfortunate. Moreover,
either the trial judge or an appellate court, sensing the
equities of the case and the possibility that the defendants
may have labored under an erroneous, albeit reasonable, belief
that they were entitled to act as they did, might expand the
availability of a "mistake of law" defense more than the De-
partment believes is warrantedo A prosecution in this case
v,,?ould present the courts with the sort of hard facts that lead
to bad law.
Even to institute a prosecution and to win it might
be unfair. If the potential defendants in fact had a reason-
able belief that they were acting pursuant to lawful presi-
dential authorization, a prosecution so many years later could
appear to be a vindictive kind of second-guessing. All the
Worse to use the criminal sanction in hindsight against in-
di.viduali when what we now see as wrong was not so much the
malign conduct of individuals as a disturbing and dangerous
policy of government. Bringing a criminal prosecution, especially
when it would in all likelihood fail, is not the only nor even
the best way to establish rules of conduct. The enunciation
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of a clear interpretation of the Constitution and the
criminal law that stands from this time forward as a barrier
against such activity, whether by rogue individual officials
or by the creation of an illegal policy, avoids the high
risk of failure at trial but assures that the criminal law
can justly be brought to bear on any further conduct of this
III. THE DEPARTMENT BELIEVES THAT CONDUCT SIMILAR TO THE
EAST COAST PROJECT TODAY WOULD BE CLEARLY ILLEGAL
This report has dealt so far with the problems in
bringing and winning a prosecution for the. CIA's mail inter-
ception program. The attention to the difficulties in the
case should not obscure the most important of the Department's
conclusions -- that any program similar to the East Coast
Project, if carried out today or in the future, would violate
the law. The Department therefore would not hesitate to
prosecute any persons, whatever their office, who may become
involved in such a program.
The East Coast Project arguably was authorized by
Presidents and their delegates during a time when the Fourth
Amendment was understood to be less rigorous in its require-
ments. Such a program conducted today could not meet the
requirement of authorization.
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With respect to the present situation, Executive
Order.11905 withdrew any prior authorization for CIA mail
opening programs. That order, issued February 18,
1976, prohibits the national security agencies covered by
the order from "[o]pening of mail or examination of envelopes
of mail in the IJ~iited States postal channels except in accord-
ance with applicable statutes and regulations." No statute
or regulation authorizes the CIA to open or read mail.
More important, however, the Department of Justice
'believes that the President lacks the authority to authorize
a program comparable to the East Coast Project whether or
not Executive Order 11905 continues in effect. This is so
for a number of reasons. As this report has discussed above,
the Executive Branch may exercise its constitutional authority
to engage in certain forms of surveillance without the prior
approval of the Judicial Branch only if it determines whether
the facts justify the surveillance, renders a formal, written
authorization, and place o a time limitation upon the sur-
veillance, The authorizing officer must act pursuant to an
express, written delegation of presidential authority. The
East Coast Project., and anything similar to it, would not
satisfy these standards. much of the program was unreasonably
broad in scope, it was not explicitly authorized in writing,
and it was not subjected to frequent reexamination to
determine whether continuation was appropriate. The written authorization means requ pp ove For Release 2004)03 1/ that
CIA-RDP 0M00165A001900130003-8
AW Now,
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the "plausible deniability" concept may never again, be
used as an excuse for lack of evidence of lawful authority.
The establishment of a program of surveillance could
be justified only by the President's. foreign affairs powers.
But the existence of such powers does not validate every
action taken in their name. There must in each case he a
sufficient basis, measured in light of the private interests
the surveillance invades, for believing that the surveillance
is necessary to serve the important end that purportedly
justifies it. It must, in other words, be reasonable in scope
and duration, as "reasonable" has come to be defined by the
courts in cases involving wiretapping. No open-ended authori-
zation of the sort involved in the East Coast Project would be
sufficient. The Department does not suggest that this means
that there must be probable cause to believe that every letter.
sought to'be opened under such an authority would contain
foreign intelligence information, any more than there must be
probable cause to believe that every telephone call that
might be overheard during a wire interception for criminal
investigative purposes will include a discussion of crime.
But there must, at a minimum,be a determination that the
facts justify the surveillance and that it is no more intrusive
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than is necessary to that end.34/ The standards that guide
presidential conduct and the conduct of the Department of
Justice draw their substance from the evolving principles
of Fourth .;Amendment jurisprudence. Under those standards the
East Coast Project could not now lawfully be approved.35/
34/ Cf. United States v. Martinez-Fuerte, 428 U.S. ,96
S. Ct, 3074 K1976 cars may be stoppe without probable cause
or a warrant for a brief scrutiny, so long as the overall pro-
gram of stopping cars is reasonable and productive); Camara v.
Municipal Court, 387 U.S. 523 (1967) (warrants to search Eoouses
may be obtain e on probable cause to believe that a building
code violation has occurred).
Building on this and similar Supreme Court analyses, the
Administration proposed legislation to provide for the issuance
of a judicial warrant authorizing the use of electronic sur-
veillance in foreign intelligence and foreign counterintelligence
cases, That legislation would have required proof of probable
cause that the target of the surveillance was a foreign power or
an agent of a foreign power and a submission of a certification
signed by a high level executive official that the information
sought was necessary to the foreign intelligence or foreign
couLrierintelli.gence needs of the federal government. It also
.equ.:red the court's review of procedures to minimize the acqui-
sition and retention of extraneous information.
35/ ee 'United States v. Brown, supra; United States v.
sera; I7-nited States v. Ehrlichman,, supra.. On the
B utenko
,
ton itt~a.t o~~s1 standards f~:r'_the approval of domestic wiretaps,
see Berger v. New fork, 388 U.S. 41 (1967) ; Katz v. United States,
United States v. Kahn, 415 U.S. 143 (l97+); United States
V. Scots 51.6 F 751 (D.C. - Cir. 1975) ; certiorari denied, 425
-U.S.a (1976), Cf. United States v. Donovan, certiorari granted,
424 tU.S, 907 (1976), argued October 13,-199776,.
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IV. CONCLUSION
The East Coast Project would now be illegal, and
the Department would not hesitate to prosecute those who
participated in such a program in the future. The applicable
law has not always been so clear, however, so that a prose-
cution brought now for a course of conduct that spanned.
1953 to 1973 might be unfair to defendants who believed that
the program they were conducting began with presidential
authorization and continued with this assumed authority.
Finally, because of difficulties of proof that have been brought
about by the lack of written documentation, the lapse of time,
the fading of memories, and the deaths of key participants, the
Department does not believe it could prove beyond a reasonable
doubt that the potential defendants are criminally responsible
for their participation in the mail opening program.
Questions of the legality of intelligence methods and
of the scope and exercise of the national security power did
not reach the courts until this decade. The preceding sections
of this report have described the development, primarily in the
last ten years, of Fourth Amendment law governing the use by
the Executive Branch of surveillance that invades privacy, and
the principles that the Department believes now govern its
scope and exercise. But whatever can be said about the law now,
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the Department believes at the time the potential defendants
acted, there was a substantial basis for thinking that the
law was otherwise. What would make the contemplated prose-
cution particularly unfair is the fact that ignorance of,
the developing law, and the consequent existence of erroneous
assumptions of legality, were in large part the fault of the
government, and indeed the Department of Justice itself. The
Department's own attitudes toward mail openings as a means of
gathering foreign intelligence must have appeared at least
equivocal. Although after 1966 the FBI did not engage in
mail opening, it participated in and was the primary beneficiary
of the CIA's East Coast Project, On two occasions early in
the 1960s the Department considered criminal prosecutions
that would have been based in part on evidence derived from FBI
mail openings. In each case the Department declined or with-
drew prosecution. Whether it did so because it feared that the
evidence would be excluded as illegally obtained, or whether it
did so to avoid revealing the existence of the mail opening
projects, the effect was the same: it allowed the programs to
go on as before, and it did not instruct the FBI or the CIA
to cease opening mail. What is more, in the mid-1960s, in
connection with Senate subcommittee hearings on possible govern-
mental monitoring of the mails, and.again in the early l Ms,
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`w
imp,
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the available evidence indicates that the then Attorneys
General probably were informed generally of the CIA's acti-
vities and, in the latter instance, of their possible scope.
Again, no steps were taken to determine what the'programs
encompassed or to question in any way their legality.
During the period in which the mail openings took.
place, there was no clear control to ensure that arguably
valuable intelligence techniques would be employed only with
careful attention to their legality and their effects on
individual rights. The absence of defined control was perhaps
in part the result of the necessary secrecy, even within the
government, that attends intelligence operations, and of the
desire for "plausible deniability" by the President. What-
ever its cause, the failure of officials at the highest levels
who were generally aware of these activities (though they did
not participate in them) to clarify the law and establish insti-
tutional controls, and their apparent contentment to leave the
individuals operating in this field to proceed according to
their best estimates of legal constraints in a vague and yet
vitally important area -- all this would render a prosecution
by the government hypocritical. What really stands indicted as
a result of the information which the Department's investigation
has disclosed is the operation of the government as an institution:
specifically, its failure to provide adequate guidance to its
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subordinate officials, almost consciously leaving them to
"take their chances" in what was an extremely uncertain legal
environment.
one of the purposes, if indeed not the primary purpose,
of the criminal law is not merely to punish past wrongdoing
but to prevent wrongdoing in the future. If the present prose-
cution were the only way, or even an effective way, of achieving
that result, it might be considered desirable despite elements
of unfairness and the almost certain lack of success in obtain-
ing convictions. It is of course recognized that whether a
convection could be achieved only can be determined by the
bringing of a prosecution. The failure to convict, however,
would hinder the development of the standards that we believe
the law now establishes. The Department believes that the
objective of preventing repetition of such activity can better
be achieved by other means.
Sue bstantial institutional changes in order to assure
adequate protection for individual rights in the conduct of
intelligence operations have already been made. Executive
.-Order 11905 clearly delineates the proper responsibilities of
each of the intelligence agencies and establishes a detailed
structure of oversight and approval which includes substantial
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NOW 'Vot
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57 -
participation by the Attorney General. Moreover, this
report itself, which is a departure from normal Department
practices, is meant to serve the purpose of clearly and
publicly describing the Department's view of the current
law. It serves as guidance for all federal officials acting
in this area, and as fair notice that any failure in the
future to comply with these newly developed but now clearly
enunciated standards will result in prosecution.
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DOJ-1977-01 1
 INCLtiSSIFIED CONFIDENTIAL ~~~ SLLECIxI "LL+
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EXECUTIVE SECRETARIAT
Asst/ DO
AO;!.EDCI
C/IPSO
D/EE0
F-b x- as~'PCOpc-I u. Cz_G._~.~; Cc~c
d1-7l.
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