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Re: National Security Committee amendments to SAFE
>At 2:24 PM -0700 9/17/97, Ben Cox wrote:
>>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.
This is not entirely correct.
I haven't thought about this for a while, that is, since we passed this
hurdle in Bernstein in April '96 -- how time flies when you're fighting
State, Commerce, NSA, and Justice. IEEPA, as yet, lacks a preclusion
provision; they'll stick one in if they can.
We faced the issue under AECA/ITAR; 22 USC Sec. 2778(h) is designed to
preclude judicial review of export decisions. I argued that Bernstein's
case nonetheless could be heard, because: (i) he was challenging the law
itself, not a licensing decision; (ii) he had a constitutional claim.
Judge Patel took the latter route.
It is almost a contradiction in terms to say that a constitutional Q can't
be heard by a court. The Supreme Court has made it difficult to preclude
judicial review of constitutional claims -- we relied on Webster v. Doe,
involving a discrimination claim against CIA, and CIA had a decent case
that the DCI has unreviewable discretion to terminate someone. Judicial
review wasn't precluded.
The federal courts are, however, courts of limited jurisdiction. While the
Supreme Court is built into the Constitution, its appellate jurisdiction is
greater than what Article III specifies. Moreover, the lower federal
courts exist because Congress created them - they have the jurisdiction
that Congress set in the various Judiciary Acts. There are nasty,
difficult Qs about how much Congress can do with that power. It's pretty
deep federal court jurisprudence stuff, and one possible answer is that the
state courts are the final line of defense, because they are courts of
But as a practical matter I'd say that Congress would need to amend SAFE
much more even to have a fair chance of precluding judicial review of a
First Amendment claim. That's one reason why Bernstein is an important