◆ SpookStack

- e e Approved For Release 2008/11/06: CIA-RDP04M01816R000502010009-4 4 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 clR.ims that p~rsoni:J 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 reJjance an tb@ approval of government officials - atcn w , _.~.,.,,, ____ ...,...., •. ,"'"'"""--- with apparent authority to give approval. Whether these argu- ments would be acceptable legal defenses is not necessarily dis- positive. As Judge Leventhal has reminded us: 1/ Our system 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- cutors 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 Ray 17, 1976 (dissenting opinion), quoting from United States v. Dotterweich, 320 U.S. 277, 285 (1943). A roved For Release 2008/11/06: CIA-RDP04M01816R000502010009-4