LETTER TO PHILIP BUCHEN FROM W. E. COLBY

• Document Type: CREST
• Collection: Library of Congress
• Document Number (FOIA) /ESDN (CREST): LOC-HAK-424-4-13-2
• Release Decision: RIPLIM
• Original Classification: S
• Document Page Count: 6
• Document Creation Date: January 11, 2017
• Document Release Date: December 27, 2012
• Sequence Number: 13
• Publication Date: July 22, 1975
• Content Type: LETTER

No Objection to Declassification in Part 2012/12/27 : LOC-HAK-424-4-13-2
.~ ~
GEI~'1CRAL !N'TEI..LIGENCL-". ACsEd~(GY
WASHINGTON, D.C. 20505
DOJ Review
Completed.
State Dept. review
completed
The Honorable Philip Bucher
Counsel to the President
The White House
Washington, D .C . 20500
2JUL19~5
MORI/CDF Pages 1-3 per
002438913
As you are aware, the Departments of State and Justice are in the process
of re-examining the parameters of the President's delegation of power to the
Attorney General for the conduct of warrantless electronic surveillance within
the United States for foreign intelligence and counterintelligence purposes.
Since this method of intelligence collection is vital to the security of our nation
and is an indispensable tool in CIA's mission of providing the foreign intelligence
necessary in today's climate, I would like to express my views against any
restrictive changes to the delegation of 19 December 1974 that may be proposed
as a result of treaties to which the United States is a party.
The current re-exami.natian is apparently due, in part, to an opinion dated
17 September 1974 by the Assistant Attorney General, Office of Legal Counsel which
expresses the view that the Vienna Gonventions on Diplomatic and Consular
Relations prohibit trespassory activity dixected against foreign embassies or
consulates within the United States unless it can be shown that .the foreign govern-
ment engages in similar activity against United States embassies or consulates in.
the foreign country. In apposition to this view, however, the Acting Legal Advisor,
Department of State opined an 6 December 1974 that the Conventions should not be
interpreted to prohibit trespassory electronic surveillance. His opinion was
based on the reasoning that the total silence on this issue by the International
Law Commission,, which drafted the Convention on Diplomatic Relations, and by
the Gommittee of the Whale during debates , indicated an intention to avoid touching
on the universal state practice of directing espionage and counterespionage activity
against foreign diplomatic personnel. The. State opinion furthex points out that,
while the Department of Justice raised two other matters at the time the Convention
was under consideration by the Executive branch, it did rat raise the issue which
No Objection to Declassification in Part 2012/12/27 : LOC-HAK-424-4-13-2
 No Objection to Declassification in Part 2012/12/27 : LOC-HAK-424-4-13-2
~~ ~y ~ .
~~~~~.
'Justice addressed in its opinion of 17 September 1974, As'the State opinion
'notes, ".the failure to raise the question of electronic eavesdropping seems
inexplicalale unless it wex-e assumed that the Convexitioxi would not prevent it,
as it is, T believe, demonstrable fraxiz other sources that no Administrafion
since the Second World War has been prepared to abandon this intelligence .
gathering technique . "
In ray opinion, the State legal position is a sound one. The history. of
consistent practice and interpretation by successive Administrations that
the Convention does not prohibit trespassory electronic surveillance should
,not now be called to question.. Essentially, the issue is in many respects political
and not legal. It would be somewhat naive to think that foreign governments
whose self interests compel an attempt to use this method of espian.age against the
.United States ga through. a process of legal wavering and doubt comparable to
that upon which we now seem to have entered , Consequently, we should not
;handicap our efforts by following an asserted legal restriction which is ursrecip-
racated and not clearly correct,
The United States should not limit intelligence activities deemed necessary
terests
e xeve
it would not be unreasonable ar unwarranted to decide that foreign governments
use trespassory electronic surveillance. to such an extent that under Article 47
there is a general restrictive application of the Conventions. I think this is
a supportable legal argument and consequently similar activity by the United
States would be justified and valid without a need to show each restrictive
application on a case-by--case basis , Without relying an this legal argument
is the preferable legal position in the State opinion that the Conventions were -
oat meant to apply to this activity .
There is another and morn far-reaching aspect to this. problem of treaty
application to the business of intelligence collection, Provisions of the Vienna
Conventions also require that diplomatic personnel abide by the laws of the
receiving state , A literal interpretation of these provisions would prohibit
espionage by CIA personnel operating from United States missions abroad., Such
interpretation would be inconsistent with the prevailing view that, while pra--
hibited by domestic law, espionage is not prohibited by international la~v,
Ample evidence that this view is adhered to in practice may be found in the.
activities of diplomatic missions within the United States .
No Objection to Declassification in Part 2012/12/27 : LOC-HAK-424-4-13-2
 No Objection to Declassification in Part 2012/12/27 : LOC-HAK-424-4-13-2
I do not believe that any nation, in adhering to the Vienxxa Conventions,
intended to forego the right to conduct espionage, including electronic surveil-
lance, as compelled by perceived national security interests , In the final
analysis, n,aticixial security interests must be determined by each sovereign.
Thais Agency was created by Congress with full recognition that it was
Congress, by consent to the Vienna Conventions on Daplomati,c and Consular
Relations, or to any other treaty, intended thereby to restrict this Agexicy
beyond the requirezxients and practice under international law . A legaX
interpretation which would baring. about this result should not be accepted now
to conduct. espionage on behalf of the United States . I do not believe that
Sincerely,
tjs/, l3itl
W . E . Colby
Director
The Honorable Edward H . Levi
The Attorney General
The Honorable 3ames R. Schlesinger
Secretary of Defense
The Honorable Henry A . Kissinger
Secretary of State
cc: The Honorable Henry A . Kissingex
Assistant to the President far
National Security Affairs.
No Objection to Declassification in Part 2012/12/27 : LOC-HAK-424-4-13-2
 No Objection to Declassification in Part 2012/12/27 : (~ 5 5 3 O
LOC-HAK-424-4-13-2 f _
ENVEL.DPE (8)
` PACKAGE [S)
No Objection to Declassification in Part 2012/12/27
LOC-HAK-424-4-13-2
 CENTRA4'^.v~r.. r_rw.rr nr.rs.rv ___-_-- -- ---_---_-~ rn~~wlRra q~r Nn
QOCI~II.No Objection to Declassification in Part 2012/12/27 : LOC-HAK-424-4-13-2
,~.~.. _-....___....._ a._., . _....___.~ .
DATE SENT
SENDER OF DOCUMENT(~~~,~~ R4g,~~ ROOM
BLDG.
DATE DOCUMENT(S) SENT
Rae
#~q
ESCRIPTION OP QOCUMENT(S1 SE
NT
CIA NO.
aocuae~xr Dare
.COPIES
C?OCUMENT TITI~ (!N BRIEF)
ATTACHMENTS
CLASS
r~pw..-???~~
22 Ju.~ 75
Cop}r to
xss~n.~ex ,Sec c~ Stata
~ DC~
~ec~e
gte: L
~~~x tc Buchan; E1~c~x
z~~c suxvenJ.~~~,ca
RECIPIENT
SI oNATU RE [ncacnac mar aF aaaire uocu~rtr~~
oFFlcar
DATA OF Rec~IPT
FORM USE PREVIOUS EDITIONS (33)
5.7Z ~~rJ
No Objection to Declassification in Part 2012/12/27 : LOC-HAK-424-4-13-2
 No Objection to Declassification in Part 2012/12/27 : LOC-HAK-424-4-13-2
~ r
No Objection to Declassification in Part 2012/12/27 : LOC-HAK-424-4-13-2