From: Greg Broiles <gbroiles@netbox.com>
Date: Thu, 18 Sep 1997 06:14:48 +0800
To: Carl Ellison <cme@cybercash.com>
Subject: Re: National Security Committee amendments to SAFE
In-Reply-To: <3.0.3.32.19970915161036.00b98760@mail.io.com>
Message-ID: <3.0.3.32.19970917150154.00879b70@mail.io.com>
MIME-Version: 1.0
Content-Type: text/plain



At 04:15 PM 9/17/97 -0400, Carl Ellison wrote:
>At 04:10 PM 9/15/97 -0700, Greg Broiles wrote:
>>AMENDMENTS TO H.R. 695
>>OFFERED BY MR. WELDON AND MR. DELLUMS
>>
[...]
>>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?

As I remember _Karn_ (sorry to hand-wave, am behind a very slow net
connection at the moment), it's primarily a challenge to State/BXA's
decisions with respect to a particular export license application. The
sentence above from the Weldon/Dellums amendment would eliminate that sort
of challenge.

Congress cannot eliminate challenges like those in _Bernstein_ and _Junger_
which are challenges to a statutory/regulatory scheme on the grounds that
it is unconstitutional. The only way to avoid/eliminate judicial review of
a constitutional challenge to a statute is to amend the constitution
itself. (cf. the "no offensive flag-burning" amendments which are discussed
from time to time, which are unconstitutional when expressed as ordinary
statutes or as administrative regulations, see _Texas v. Johnson_ and _US
v. Eichman_.) 


--
Greg Broiles                | US crypto export control policy in a nutshell:
gbroiles@netbox.com         | Export jobs, not crypto.
http://www.io.com/~gbroiles | http://www.parrhesia.com