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Re: National Security Committee amendments to SAFE



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:
[email protected]         | Export jobs, not crypto.
http://www.io.com/~gbroiles | http://www.parrhesia.com