From: Steven Bellovin <smb@research.att.com>
Date: Thu, 18 Sep 1997 06:20:36 +0800
To: Ben Cox <cox+@transarc.com>
Subject: Re: National Security Committee amendments to SAFE
Message-ID: <199709172209.SAA21905@postal.research.att.com>
MIME-Version: 1.0
Content-Type: text/plain



	 Carl Ellison says:
	 >>Decisions made by the Secretary of Commerce with the concurrence of 
	the
	 >>Secretary of Defense with respect to exports of encryption products 
	under
	 >>this section shall not be subject to judicial review.
	 >
	 >I take it this last sentence is intended to kill Bernstein, Karn and 
	Junger
	 >and any other cases we might try to bring.  Correct?
	 
	 How could that possibly be binding?  Anything the court system thinks 
	 is subject to judicial review is subject to judicial review.

I'm sure one of the real lawyers will add a lot more detail.  However...

The way something can be beyond judicial review is if it's purely an
executive branch function.  You can sue, of course, but in order to
overcome that argument you'd have to show that either the function
wasn't executive branch-specific, *or* some other constitutional right
is being violated.

To see how a judge can rule on such an issue, have a look at the trial
court's opinion in the Karn case.  You can find that opinion at
http://venable.com/oracle/oracle7.htm, according to Karn's page (I was
unable to confirm that link just now).