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CINDY A. COHN, ESQ.; SBN 145997
McGLASHAN & SARRAIL
Professional Corporation					
177 Bovet Road, Sixth Floor				
San Mateo, CA  94402
Tel: (415) 341-2585
Fax: (415) 341-1395

M. EDWARD ROSS, ESQ.; SBN 173048
STEEFEL, LEVITT & WEISS
A Professional Corporation
One Embarcadero Center, 30th Floor
San Francisco, CA 94111
Tel: (415) 788-0900

LEE TIEN, ESQ.; SBN 148216
1452 Curtis Street
Berkeley, CA 94702
Tel: (510) 525-0817

Attorneys for Plaintiff
Daniel J. Bernstein


	IN THE UNITED STATES DISTRICT COURT
	FOR THE NORTHERN DISTRICT OF CALIFORNIA


DANIEL J. BERNSTEIN			 )	
					 )  C 95-00582 MHP
         Plaintiff,    			 )	
					 )  PLAINTIFF'S
v.					 )  OPPOSITION TO
					 )  MOTION TO DISMISS
					 )
UNITED STATES DEPARTMENT OF 		 )   Hearing date: October 20, 1995
 STATE et al.,  	        	 )   Time:  10:30 a.m.
					 )    Judge:  Hon. Marilyn H. Patel
	   Defendants.			 )
                                         )
                                         )

      	TABLE OF CONTENTS

INTRODUCTION    1

STATEMENT OF FACTS     2
    A What Plaintiff Did and Wants to Do   3
        1 DR. BERNSTEIN's First CJ Request       5
        2 DR. BERNSTEIN's Set of Five CJ Requests      6
        3 Appeals    6
    B Defendants' Actions Resulted In A Suppression
      Of Plaintiff's Ability to Publish     6

PLAINTIFF'S CLAIMS    8

DISCUSSION     10

    I PLAINTIFF HAS ALLEGED "COLORABLE" CONSTITUTIONAL CLAIMS  12
        A The Complaint Properly Alleges Claims About
          Defendants' Attempts to Control Both The
          Code And The Non-Code Items  13
            1 ITAR, On Its Face, Controls More Than
              "Functioning Software"   14
        B Plaintiff's Desire Communication Of His Ideas
          Is Protected Speech  16
            1 Plaintiff Seeks To Engage In Academic,
              Scientific And Political Speech    18
            2 Publication Cannot Be Redefined As "Export"   20
            3 No Rational Distinction Between Communication
              Of Ideas In English Or Mathematical Symbols
              And Communication Of Ideas In Computer Language    21
        C Encryption Software, Since It Allows Private Speech,
          Is Especially Protected By The First Amendment  23
        D Plaintiff's Ultra Vires Claim Are Colorable 25

    II   JUDICIAL REVIEW IS NOT PRECLUDED UNDER
         THE POLITICAL QUESTION DOCTRINE 26
        A The Proper Political Question Analysis   27
            1 Defendants' Argument Addresses The Wrong Questions     28
        B A Constitutional Commitment to A Coordinate Branch    29
        C The Judiciary Has Standards To Review This Case  32
        D Prudential Considerations   33

    III   JURISDICTION EXISTS UNDER THE ADMINISTRATIVE
	  PROCEDURES ACTS ("APA") 34
        A The Preliminary Requirements for APA Jurisdiction
          Have Been Met 34
            1 Preclusion Of Judicial Review Claim Would
              Effectively Deny Plaintiff A Judicial Forum For
              Asserting His Constitutional Claims 34
            2 There Was Final Agency Action 34
        B Review Under The APA Is Not Precluded 35
            1 Judicial Review Is Presumed 36
            2 Plaintiff Does Not Challenge The Designation
              Of An Item To Be On The USML 38
                a The Text Of The Preclusion Provision Does
                  Not Reach The Legal Issues Raised In This Case 38
                b The Legislative History Demonstrates No
                  Intent On Congress's Part Of Any Broader Meaning    40
                c  The AECA Has No Comprehensive Statutory
                   Scheme Indicating Preclusion of Judicial Review 41
            3 Plaintiff's Claims Are Not Precluded Under The
              "Committed to Agency Discretion" Provision
               Of 5 U.S.C701(a)(2)   42
                a  The AECA Does Not "Exude Deference"  42
                b  In This Case, Both The AECA And The
                   Constitution Provide "Law to Apply"    43

CONCLUSION     44


      	TABLE OF AUTHORITIES


CASES

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)	36

Apple Computer v. Formula Int'l Inc. 562 F.Supp. 775 (C.D. Cal.1983)	22

Aptheker v. Secretary of State, 378 U.S. 500 (1964)	31

Baker v. Carr, 369 U.S. 186 (1962)	27,28,29,30,33

Beno v. Shalala, 30 F.3d 1057 (9th Cir. 1994)	42

Block v. Community Nutritition Institute, 467 U.S. 340 (1984)	38

Board of Trustees of Leland Stanford Univ.v. Sullivan,	19
773 F.Supp. 472 (D.D.C. 1991)

Boos v. Barry, 485 U.S. 312 (1988)	32

Bowen v. Michigan Academy, 476 U.S. 667 (1986)	38

Bowen v. Massachusetts, 487 U.S. 879 (1992)	35

Bullfrog Films, Inc. v. Wick, 847 F.2d 502 (9th Cir. 1988)	24,32,44

Chaplinsky v. New Hampshire, 315, U.S. 568 (1942)	16

Cubby v. Compuserve, Inc. 776 F. Supp. 135 (S.D.N.Y. 1991)	4

Dalton v. Specter, 114 S.Ct. 1719 (1994)	26

Dames & Moore v. Regan, 453 U.S.654 (1981)	33

Darby v. Cisneros, 113 S.Ct. 2539 (1993)	35

Dart v. United States, 848 F.2d 217 (D.C. Cir. 1988)	37

Department of the Navy v. Egan, 84 U.S. 518 (1988)	37

DKT Mem. Fund v. AID, 810 F.2d 1236 (D.C. Cir.1987)	30

Doe v. Schachter, 804 F.Supp. 53 (N.D. Cal. 1992)	37

Dubbs v. C.I.A. 769 F.Supp. 1113 (N.D. Cal. 1990)	37

Farrington v. Tokushige, 273 U.S. 284 (1927)	22

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)	18

Franklin v. Massachusetts, 112 S.Ct. 2767 (1992)	34

Freedman v. Maryland 380 U.S. 51 (1965) 	8,29,32,34,45

Goldwater v. Carter, 444 U.S. 996 (1979)	28,29

Haig v. Agee, 453 U.S. 280 (1981)	32

Hal Roach Studios v. Richard Feiner & Co. 896 F.2d 1542,	12
 (9th Cir. 1990)

High Tech. Gays v. Defense Ind. Sec. Clearance Off. 895 F.2d 563	32
(9th Cir. 1990)

Hoye v. Sullivan, 985 F.2d 990 (9th Cir. 1993)	12

Hurley v. Irish-American Gay Group of Boston, 115 S.Ct. 3338 (1995)	24

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)	43

INS v. Chadha, 462 U.S. 919 (1983)	27

Japan Whaling Assoc. v. American Cetacean Society, 478 	33
U.S. 221 (1986)

Johnson v. Robison, 415 U.S. 361 (1974)	37,39

Lamont v. Woods, 948 F.2d 825 (2nd Cir.1991)	31

Lincoln v. Vigil, 113 S.Ct. 2024 (1993)	36

Lindahl v. Office of Personnel Management, 470 U.S. 768 (1985)	39,40

McIntyre v. Ohio Elections Com'n, U.S. 115 S.Ct. 1511 (1995)	24

McNary v. Haitian Refugee Ctr. Inc. 498 U.S. 479 (1991)	39

Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S.	23
575 (1983)

Murdock v. Pennsylvania, 319 U.S. 105 (1943)	24

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)	24

National Federation Of Fed. Employees v. Greenberg, 983 F.2d 286	31,32
(D.C. Cir. 1993)

Near v. Minnesota ex rel Olson, 283 U.S. 697 (1931)	20

New York Times v. United States, 403 U.S. 713 (1971)	8,27,32,45

No. GWEN Alliance v. Aldridge, 855 F.2d 1380 (9th Cir.1988)	30

Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974)	13

Perry Education Ass'n. v. Perry Local Educators' Ass'n., (1983) 460 U.S. 37	45

Powell v. McCormack, 395 U.S. 486 (1969)	32,33

Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (D.C. Cir.1984)	30,32

Red Lion Broadcasting Company v. F.C.C., 395 U.S. 367 (1969)	18

Roberts v. Corrothers, 9th Cir. 1987) 812 F.2d 1173 (9th Cir. 1987)	12

Roth v. United States, 354 U.S. 476 (1957)	16

Simon & Schuster, Inc. v. Members of the New York State Crime
Victims Board, 502 U.S. 105 (1991)	19

Stark v. Wickard, 321 U.S. 288 (1944)		37	

Stromberg v. California, 283 U.S. 359 (1931)	21

Sweezy v. New Hampshire, 354 U.S. 234 (1957)	19

United States v. Bozarov, 974 F.2d 1037 (9th Cir. 1992)	26,28,37

United States v. Edler, 579 F.2d 516 (9th Cir. 1978)	15,16,17,19,27,42,43,44

United States v. Fausto, 484 U.S. 439 (1988)	41,42

United States v. Martinez, 904 F.2d 601 (11th Cir. 1990)	28,43

United States v. O'Brien, 391 U.S. 367 (1968)	11,20,21

United States v. Posey, 864 F.2d 1487 (9th Cir.1989)	27

United States v. United States District Court, 407 U.S. 297 (1972)	24

United States v. Spawr Optical Research, Inc. 864 F.2d 1467
(9th Cir.1998)	28,42

Webster v. Doe, 486 U.S. 592 (1988)	12,38

Weinberger v. Salfi, 422 U.S. 749 (1975)	40

Yniguez v. Arizonans for Official English, 42 F.3d (9th Cir. 1994)	23

STATUTES

F.R.C.P. 12(b)(6)	12,14

F.R.C.P. 12(h)(3)	36

5 U.S.C. 701(a)(1)	38

5 U.S.C. 701(a)(2)	36,42,43

5 U.S.C. 704	34

5 U.S.C. 706(2)(B)	36

5 U.S.C. 706(2)(C)	36

5 U.S.C. 8128(b)	39

5 U.S.C. 8347(c)	39

8 U.S.C. 1101(a)(20)	7

8 U.S.C. 1324b(a)(3)	7

22 U.S.C. 1331	11

22 U.S.C. 2778	25

22 U.S.C. 2778(a)(1)	30

22 U.S.C. 2778(a)(2)	42

22 U.S.C. 2778(b)(1)(A)	6,25

22 U.S.C. 2778(b)(2)	42

22 U.S.C. 2778(c)	9

22 U.S.C. 2778(e)	9

22 U.S.C. 2778(g)(2)	25

22 U.S.C. 2778(g)(9)(D)	25

22 U.S.C. 2778(h)	34,35,36,38,39,40,41

22 U.S.C. 2794(7)	25

50 U.S.C. App. 2409	41

50 U.S.C.  App. 2411	41

50 U.S.C. App. 2412	41

50 U.S.C. App. 2412(a)	40


OTHER



ITAR 121.1 (XIII)(b)(1)(vi)	4,10

ITAR 120.4(g)	35

ITAR 120.9(a)	15

ITAR 120.9(a)(2)	15		

ITAR 120.10(d)	15

ITAR 120.10(1)	9

ITAR 120.10(5)	9

ITAR 120.11	9

ITAR 120.16	7

ITAR 120.17(3)	7

ITAR 121.8	10

ITAR 121.8(f)	9,15

ITAR 122.1(a)	10

ITAR 123.9(a)	7

ITAR 125.1	9


		INTRODUCTION

	The U.S. Government here claims it can restrain the publication of private
ideas about science, specifically ideas which, if implemented, can enable
others to engage in confidential speech.  The restraints come under the
guise of export control regulations, but these regulations, if upheld, would
not only restrict the rights of scientists and academics to share their
ideas with each other, but also implicate the future course of the First
Amendment in this country as we enter the Information Age.

	The specific legal question presented in this case is the
constitutionality of the International Traffic in Arms Regulations, 22
C.F.R. 120-130 ("ITAR"), promulgated by defendant State Department pursuant
to the Arms Export Control Act ("AECA"), 22 U.S.C. Sec. 2778 et seq.   On
these authorities, defendant State Department told DR. BERNSTEIN that he
cannot lawfully publish his own ideas in an area of applied mathematics
known as cryptography without 1) registering as an arms dealer, 2) obtaining
general permission to publish, and then 3) obtaining an export license for
each country in which a recipient may live.  These requirements effectively
prohibit dissemination of DR. BERNSTEIN's ideas to the general public.

	DR. BERNSTEIN alleges that this prepublication licensing scheme, on its
face and as applied to him, creates an unconstitutional prior restraint on
his speech and otherwise does not meet the standards for restrictions on
expression.  Such restraint violates both his rights and the right of
would-be listeners and readers to receive unclassified, privately developed
ideas.

	In this Motion to Dismiss, the Defendants seek to convince this Court that
the constitutionality of this prior restraint is not even justiciable.   By
misrepresenting the facts, the technology and their own regulations, the
Defendants would mislead this Court into accepting the proposition that
their regulations have no impact on protected expression.

	Even a cursory reading of the Complaint, however, confirms that this case
is justiciable.  First, what Plaintiff wants to do is publish his own
scientific ideas.  This is speech at the core of the First Amendment; any
regulation of it requires close judicial scrutiny.  Second, his speech is
about cryptography, a mathematical means to protect the privacy of
electronic communication.  Privacy and the First Amendment are fundamentally
linked.  Here, Plaintiff's ideas create a means for others to engage in
private communication; restraint of these ideas has significant First
Amendment ramifications.

	In sum, this case is about whether the government may impose prior
restraints on the communication of scientific ideas, whether one-on-one, at
academic conferences, in journals or in online discussion groups, and the
effects of such restraints on the rights of all Americans.   These are
issues at the heart of the First Amendment, an area where the courts must
have jurisdiction.  The Motion to Dismiss must be denied.

	STATEMENT OF FACTS

	 At the time of filing,  Plaintiff DANIEL J. BERNSTEIN ("DR. BERNSTEIN")
was  a PhD candidate in mathematics at the University of California at
Berkeley.   He has since received his degree.  DR. BERNSTEIN has worked in
the field of cryptography, the art and science of keeping messages secure.
Cryptography is a branch of applied mathematics used to prevent the
unauthorized interception, viewing, reading, tampering, and forging of
messages.  It is therefore a science which aids communication of ideas.
Cryptography involves translating a message into a form which is unreadable
to anyone who does not have the "key" necessary to translate the message
back into its original form.  In electronic communication  this
"translation" is accomplished through the application of sophisticated
mathematical equations to the text.  Anyone who intercepts a message in the
unreadable form is unable to understand it.  Privacy of the message is
therefore ensured.

	Without cryptography, what people send via computers is the electronic
equivalent of a postcard, open to view by many people while the message is
in transit.  With cryptography, people can put both messages and money into
electronic "envelopes," secure in the knowledge that what they send is not
accessible to anyone except the intended recipient.

	The uses for cryptography range from protecting the privacy of
attorney/client correspondence, financial transactions and medical records
transmitted over wires, to preventing piracy of cable TV, cellular phone,
telephone lines or satellite signals.  Every bank ATM  uses cryptography.
Continued development of cryptography promises to make it possible for the
worldwide computer Internet to offer private, secure and protected
communication among billions of people worldwide.

	A.	What Plaintiff Did and Wants to Do

	Several years ago, DR. BERNSTEIN developed an encryption algorithm or
recipe which he calls "Snuffle."   He developed a rigorous mathematical
version of his ideas which he then described in two ways.   First, he
described Snuffle  in the language of English and in  mathematical equations
which define and explain the recipe.   This description is contained in a
document entitled "The Snuffle Encryption System" ("the Paper").  Complaint
Exhibit A1.   Second, he described Snuffle in the "C" programming language,
calling these descriptions Snuffle.c  and Unsnuffle.c.  Complaint Exhibit
A1.   These computer code descriptions allow the recipe to be more easily
used on a computer.  Both the Paper and the computer code descriptions
explain the algorithm or recipe for Snuffle; a person who understands
cryptography and basic computer programming can easily use the Paper to
create equivalent computer code and vice versa.

	DR. BERNSTEIN wants to publish his cryptographic ideas and research results
as part of the normal process of academic, scientific and political exchange
of ideas and information.  He wishes to publish them in text journals as
well as in an online discussion group about the science of cryptography,
called sci.crypt.

	Aware of the Defendants' civil and criminal restrictions on cryptography
export, Plaintiff  asked the Office of Defense Trade Controls ("ODTC"), an
arm of the State Department, to find out whether he could publish his ideas.

	1.  DR. BERNSTEIN's First CJ Request	

	DR. BERNSTEIN's first request to Defendants, dated June 30, 1992 and later
designated CJ 191-92, contained the following statement of his intention:
"I would like to export the software known as 'snuffle 5.0', described
below, together with the documentation of my "Snuffle" encryption system,
also described below." Complaint Exhibit A.  As explained infra at 7, DR.
BERNSTEIN used the term "export" based upon ITAR definition, since he knew
publication could "disclose" his ideas to foreign persons.  Later in the
same message, Dr. BERNSTEIN again stated what he wished to be determined:

	The three possibly controlled items which I would like to export are (1)
the document "The Snuffle Encryption System," attached; (2) the Snuffle.c
source file, attached; (3) the Unsnuffle.c source file attached.
Id.  DR. BERNSTEIN also indicated the purpose for which he sought the
determination, stating:   "I would like to publish these items in a widely
read international electronic conference known as "sci.crypt" for discussion
by the worldwide scientific community."  Id.

	Defendant Robinson responded to DR. BERNSTEIN's request with a letter which
states, in part:  "[T]his commodity is a stand-alone cryptographic algorithm
which is not incorporated into a finished software product."  Complaint
Exhibit B.   The Snuffle algorithm is described by both the code and
non-code portions of DR. BERNSTEIN's submission.  Further, given that the
request had unequivocally indicated three controlled items, the answer that
the "referenced commodity is subject to the licensing jurisdiction of the
Department of State," (Exhibit B)  left Plaintiff unsure which of the items
he had submitted were controlled, with no clear indication that his Paper as
not subject to the licensing process.

	2.  DR. BERNSTEIN's Set of Five CJ Requests 	

	In order to be sure, however, that each of his items were restricted,
Plaintiff attempted a second round of CJ Requests ("CJs").   On or about
July 15, 1993, Plaintiff submitted  five separate CJs, each of which asked
if he could publish a different item directly related to Snuffle.
Plaintiff's purpose in filing five separate CJs was to give the ODTC the
opportunity to consider each item separately.

	 On or about October 5, 1993, Defendants informed Plaintiff that "The
Department of State has determined that the referenced items are subject to
the licensing jurisdiction of the Department of State." Complaint Exhibit E.
Again, the Defendants gave no indication that any of the five items
submitted were not subject to the licensing restraint.

	3.  Appeals

	DR. BERNSTEIN appealed the First CJ determination on or about September 22,
1993, and has received no response.  Complaint Exhibit C.  Believing that
any further appeal would be futile, DR. BERNSTEIN did not appeal Defendants'
determination about the set of five CJs.
B.	Defendants' Actions Resulted In A Suppression Of  Plaintiff's Ability to
Publish

	Because ODTC has determined that DR. BERNSTEIN's items are on the U.S.
Munitions List, (USML)  DR. BERNSTEIN may not "export" them without first
registering as an arms dealer under 22 U.S.C. Sec. 2778(b)(1)(A) and then
obtaining an arms export license granted by the State Department.  The State
Department defines an export as "disclosing (including oral or visual
disclosure) or transferring technical data to a foreign person, whether in
the United States or abroad."  ITAR 120.17(3).  This definition leads to
several incredible conclusions:

	1.   DR. BERNSTEIN cannot even teach his ideas to his students in a
classroom without government permission, unless he ensures that none of his
students is a "foreign person."

	 2.  DR. BERNSTEIN would export his ideas if he were to disclose them at an
academic conference, because such publication would surely disclose his
ideas to a "foreign person."

	3.  DR. BERNSTEIN would export his ideas if he were to post a message
containing them to the sci.crypt newsgroup.  Export includes distributing
the ideas over the Internet by posting them to internationally available
newsgroups, since this might disclose them to a "foreign person."

	Thus, when the State Department decided that Plaintiff's ideas were subject
to the arms export control laws, it made their publication impossible-- if
any reader were a "foreign person," disclosing his items to that person
would be an export, even if this disclosure occurred within the United
States.  Even if DR. BERNSTEIN had received an arms export license,
publication would still not be possible because the regulations require that
he ascertain each specific "end user" and "end use" of an "export."  ITAR
123.9(a).

	 In sum, the present government scheme requires DR. BERNSTEIN to register
as an arms dealer, obtain advance permission from the government, and
ascertain each "end user" -- before he can present his work to the public in
any form, whether in a classroom, by a typewritten handbill, through an
article in a scientific journal, or in an electronic posting to an Internet
newsgroup devoted to science and mathematics.  He cannot even stand on a
street corner and talk about his ideas, because this might "export arms" if
a foreign person was listening.


                            PLAINTIFF'S CLAIMS

	Plaintiff asserts that the AECA does not authorize prepublication licensing
of academic  publication of scientific ideas, and that if it does, the AECA
creates a prior restraint.  "Any system of prior restraint of expression
comes to this Court bearing a heavy presumption against its constitutional
validity."  New York Times v. United States, 403 U.S. 713, 714 (1971)(per
curiam)(quotation and citations omitted).  (Pentagon Papers)   Here,
disclosure of Plaintiff's privately developed, unclassified ideas does not
meet the standard required for prior restraints because it will not "surely
result in direct, immediate and irreparable damage to our Nation or its
people."  Id. at 730 (Stewart, J., concurring).  This scheme also fails to
provide the necessary procedural protections required under the First and
Fifth Amendments as outlined in Freedman v. Maryland, 380 U.S. 51 (1965).
In addition, Plaintiff alleges that Defendants have exceeded their lawfully
delegated authority under the AECA, since Congress never intended that the
statute be applied to suppress the academic or scholarly publication of
technical information, such as Defendants seek to restrain here.

	In  particular, the constitutional claims of the Complaint assert that the
statutory and regulatory scheme, on its face or as applied:

	1. 	Creates an unjustifiable prior restraint on Plaintiff's publication of
scientific papers, algorithms  and computer programs by requiring a
three-step licensing and approval process prior to publication.  This
process effectively prevents general publication.


	2. 	Institutes a process, called the CJ Process,  by which citizens submit
their scientific papers, algorithms and computer programs to Defendants
prior to publication for determination of whether a license is required.
This process fails to:

		a.	place the burden on the government to seek judicial review;

   	   	b. 	ensure a prompt, final judicial review of a determination that a
license is required;

    		c. 	provide clear administrative standards for such determinations, and

    		d.	provide other procedural safeguards required by Freedman, and its
progeny.

	3.   	Requires that Plaintiff register as an arms dealer.  This process is
unconstitutional due to the same failures as described above concerning the
CJ Process.


	4.   	Requires that Plaintiff ascertain all end users of items, thus in
fact preventing publication.  This process is unconstitutional due to the
same failures as described above concerning the CJ Process.


	5.  	Contains unconstitutionally vague language in the terms, among others:


	     	a.  	Category XIII:  software with the capability of maintaining
secrecy or  confidentiality of information or information systems;

	     	b. 	 ITAR 120.10(5)  Information concerning general scientific
mathematical or engineering principles commonly taught in schools, colleges
and universities;

     	    	c.   	ITAR 120.10(1) definition of  technical data which excludes
software;   	

     		d.  	ITAR 120.11, which is vague as to how one can place something
into the public domain without violating the ITAR;

		e.   	ITAR 121.8(f), the definition of  software;

		f.	ITAR 125.1, definition of "information" which can be placed in the
public domain;

     		g.   	AECA sec. 2778(c) willfulness and whether under AECA 2778(e)
the imposition of civil penalties is allowed without a willfulness requirement.

	6.   	Is overbroad in that, among others it:

     		a.   	Includes in the definition of  "export"  activities such as
publication and public  discussion of scientific papers, algorithms and
computer programs which are protected forms of expression under the First
Amendment.

     		b.   	Requires a speaker to determine that no member of his audience
is a foreign person  prior to speaking about his own ideas.

     		c.   	Includes information and technical data which extend beyond the
reasonable or intended scope of the statutory authority.

     		d.   	Excludes speech about cryptography from information which can
be in the public domain.

     		e.   	Includes speech having no military purpose or application in
ITAR 121.1, Category XIII.

     		f.  	Prevents publication about the subject of cryptography through
the definition of software in ITAR 121.8.

     		g.   	Extends to persons not engaging in the business of either
manufacturing or exporting defense articles, in contravention of ITAR 122.1(a)

     		h.   	Includes software which includes no cryptography at all.

7. 	Restricts Plaintiff s ability to publish his ideas or to receive the
ideas of others based upon the content of those ideas.

8.  	Prevents Plaintiff and those who would receive his ideas from engaging
in open exchange of information, a necessary part of the right to academic
freedom, as well as regulating speech on the basis of the citizenship and
nationality of the recipients.

9.  	Censors Plaintiffs views about cryptography in an attempt to favor the
government' s own views about the subject.


	Plaintiff s tenth and final cause of action is based upon the
Administrative Procedures Act.  Relying upon many of the same bases as the
Constitutional claims, it  asserts that Defendants have:

	a.	Unlawfully withheld or unreasonably delayed determination of his CJ
requests and determination of his appeal, both in contravention of their own
regulations;

	b.	Asserted control over publication of his scientific paper, algorithm and
computer program, exceeding their regulatory and statutory jurisdiction; and

	c.	Made determinations which are arbitrary, capricious and which constitute
an abuse of discretion.


	DISCUSSION


	Defendants first argue that a challenge to the designation of an item on
the USML is not justiciable, based upon the APA statutory preclusion
provisions and the political question doctrine.  Plaintiff agrees.  His
challenge here is not to the "designation of an item on the USML," but
instead to the constitutionality and ultra vires nature of the entire
regulatory scheme on the grounds that it restrains Plaintiff's right to
communicate without meeting the requisite Constitutional standards for such
restraints.

	What Plaintiff wants to do here is communicate information to other people.
The only way he can communicate technical information (including
cryptographic software) to other people is to "disclose" it, thus meeting
the definition of "export" under the ITAR.  Thus if Plaintiff's publication
does not communicate, he is not required to obtain a license; if it does
communicate, then the First Amendment is triggered, requiring the rigorous
Constitutional analysis which the Courts have developed for restraints on
publication.

	The Defendants rely primarily on United States v. O'Brien, 391 U.S. 367
(1968),  to establish the proposition that in some cases conduct which
contains both speech and non- speech elements can be regulated.  As
demonstrated in this brief, DR. BERNSTEIN's activities here are pure speech,
not conduct with incidental speech elements.  Yet even on its own terms,
O'Brien clarifies that conduct containing both speech and non-speech
elements cannot be regulated on the ground that the communication inherent
in the conduct is deemed to be harmful.  O'Brien, 391 U.S. at 377.  Yet here
it is exactly the "disclosure" or communication which the government claims
is harmful.  Indeed, no license is required under the ITAR to actually use
encryption, whether inside or outside of the United States.

	Jurisdiction here is premised upon 22 U.S.C.  1331.  This case arises
under federal law because Plaintiff seeks review of regulations promulgated
under an act of Congress and claims violations of the First and Fifth
Amendments to the Constitution.  Plaintiff will first demonstrate that he
has raised significant constitutional claims, far stronger than the
"colorability" standard improperly proferred by Defendants.  Second,
Plaintiff will show that the political question doctrine does not bar review
here.  Finally, Plaintiff will show that the APA does not preclude review of
Plaintiff's claims.

		I.	PLAINTIFF HAS ALLEGED "COLORABLE" CONSTITUTIONAL CLAIMS


	Defendants have challenged the "colorability" of Plaintiff's claims.  Yet
proof of "colorable" constitutional claims is only required when the APA
otherwise precludes review.   See e.g. Webster v. Doe., 486 U.S. 592 (1988).
Here, as shown infra, the APA does not preclude review and so Plaintiff need
not meet the extra burden of "colorability" in order to avoid dismissal.

	Even assuming, arguendo that a showing of  "colorability" is required, such
a challenge must be determined by applying the standards of  F.R.C.P.
12(b)(6), since the jurisdictional analysis here is intertwined with the
merits.  Roberts v. Corrothers 812 F.2d 1173, 1178 (9th Cir. 1987) .  As
explained more fully in Plaintiff's Objections to Evidence filed herewith,
the Roberts analysis requires that the district court assumes the truth of
the allegations in the Complaint unless controverted by undisputed facts on
the record, and consideration of extrinsic evidence, such as the
Declarations submitted by Defendants,  is not allowed.  Hal Roach Studios v.
Richard Feiner and Co.  896 F.2d 1542, 1555 n.19 (9th Cir. 1990).

	Plaintiff's claims here are undoubtedly colorable on their face, or at the
very least raise genuine issues of material fact as to their colorability
which require further discovery.  A claim is "colorable" under F.R.C.P.
12(b)(6)  unless it "clearly appears to be immaterial and made solely for
the purpose of obtaining jurisdiction" or is "wholly insubstantial and
frivolous."  Hoye v. Sullivan, 985 F.2d 990, 991 (9th Cir. 1993)(citations
omitted).  Since Defendants do not claim that Plaintiff's claims were made
solely for the purposes of obtaining jurisdiction, the issue here is whether
Plaintiff's claims are "wholly insubstantial and frivolous."  It is clear
that Plaintiff's claims are not "so insubstantial, implausible, foreclosed
by prior decisions of [the Supreme] Court, or otherwise completely devoid of
merit as not to involve a federal controversy within the jurisdiction of the
District Court."  Oneida Indian Nation v. County of Oneida, 414 U.S. 661,
666 (1974)(citations omitted).

	A.	The Complaint Properly Alleges Claims about Defendants' Attempts to
Control Both the Code and the Non-Code Items


	First, as to the portions of his claims which relate to the non-code items,
Defendants assert only that they did not intend to restrain these items.
There is no dispute that if Defendants indeed did restrain to control these
non-code items, Plaintiff's claims as to them raise colorable Constitutional
issues.

	Even the most cursory reading of the Complaint, however, reveals that
Plaintiff has raised a colorable claim that Defendants did restrain the
non-code items.  Defendants are attempting a bit of sleight-of-hand here,
hoping to narrow the scope of  this lawsuit.  They attempt to construe the
State Department determinations as only referring to "cryptographic
software," deliberately ignoring his other submissions, and then argue that
publishing "software" never can be protected expression.  Defendants'
Memorandum 10:5-14.  Defendants buttress this factual allegation with two
types of support.  The first is based upon the Declarations of Mr. Lowell
and Mr. Giles, which are extrinsic evidence and should be stricken for the
reasons described above and in the Objections to Evidence filed herewith.
The second, however,  is based upon the letters attached to the Complaint as
Exhibits A - E.  Since they are part of the Complaint, argument in
Opposition is warranted.

	The plain meaning of the Complaint exhibits is that the Defendants did
extend their control to both the code and the non-code items submitted by
Plaintiff.  As noted in the Statement of Facts, supra at 5, Plaintiff's
first CJ Request unequivocally states that he is seeking a determination of
about three items.  Defendants' response to DR. BERNSTEIN, also noted above
at 5, does not indicate the paper is not controlled.  In order to be sure,
however, Plaintiff attempted a second round of CJ Requests, this time
explicitly separating out the five different parts of his idea, including
three non-code submissions.  Defendants responded by combining the five
submissions into one and stating: "The Department of State has determined
that the referenced items are subject to the licensing jurisdiction of the
Department of State," (Complaint Exhibit E)(emphasis added).  Again, the
Defendants gave no indication that  any of the items submitted by Plaintiff
were outside their control; they stated just the opposite.

	1.	ITAR, On Its Face, Controls More Than "Functioning Software."

	DR. BERNSTEIN's concern that the Defendants would seek to suppress his
non-code items is well-founded based upon the ITAR itself, which on its face
controls much more than "software that functions to encrypt communications
on a computer system." Defendant's Memorandum, 10:17:18.  First, the
definition of "software" under the regulations is much broader than this,
holding:

		121.8(f) Software includes but is not limited to the system functional
design, logic flow, algorithms, application programs, operating systems and
support software for design, implementation, test, operation, diagnosis and
repair.

Since the non-code items arguably contain the logic flow and algorithms
which are part of DR. BERNSTEIN's idea, they clearly could be included in
this definition.

	Second, the ITAR controls both "defense articles" as indicated by
Defendants and "defense services."  ITAR defines "defense services," in
relevant part:

		120.9 (a)Defense service means:

		(1) The furnishing of assistance (including training) to foreign persons
whether in the United States or abroad in the design, development,
engineering, manufacture, production, assembly, testing, repair,
maintenance, modification, operation, demilitarization, destruction,
processing or use of defense articles;

Thus even if the non-code items were not defense articles, they could be
controlled under the "defense services" category of the ITAR since they
could furnish "assistance" to persons in the use of controlled cryptographic
software.

	Third, the definition of "technical data", which is also controlled as a
category of  "defense service" under 120.9(a)(2), also appears to include
the paper.  The relevant definition of "technical data" is as follows:

		(1) Information, other than software as defined in  120.10(d), which is
required for the design, development, production, manufacture, assembly,
operation, repair, testing, maintenance, or modification of defense
articles.  This includes information in the form of blueprints, drawings,
photographs, plans, instructions and documentation.

Although this definition was limited by the Ninth Circuit in United States
v. Edler, 579 F.2d 516 (9th Cir. 1978) to information "significantly and
directly related to specific articles on the Munitions List," (Edler 579
F.2d at 521) the non-code items here arguably meet this standard.   Since
the "software" is on the USML and the paper is a description in English of
the same process, it was reasonable to believe that the paper was "directly
related" to an item on the USML.  Similarly, the other non-code items
include instructions and documentation which are also "directly related" to
the computer code.  Neither the Edler decision nor any of the "more
solicitous" (Defendants' Memorandum 22:6) revisions of the ITAR change any
of these definitions to allow publication of  DR. BERNSTEIN's items.

		Thus, the Complaint allegations, supported by both the clear meaning of
the Exhibits to the Complaint and the language of the ITAR itself, present
colorable Constitutional claims that Defendants' actions constituted a prior
restraint on his right to publish non-software expressions of his ideas, as
well as those written in computer code.

		B.	Plaintiff's Desired Communication of his Ideas Is Protected Speech.

	After attempting improperly to narrow the scope of the litigation,
Defendants focus their argument on the computer code, attempting to label
his desired publication as "conduct," and his computer code as not "speech"
under the First Amendment.  Yet this attempt is contrary even to the
authorities which Defendants themselves cite in support of their argument.

	In order to determine that Plaintiff's desired publication does not present
even a colorable claim to First Amendment protection, this court must
determine whether what he wishes to publish is so removed from "any
exposition of ideas,"  Chaplinsky v. New Hampshire 315 US 568, 572 (1942),
and from "truth, science, morality, and arts in general, in its diffusion of
liberal sentiments on the administration of government," Roth v. United
States, 354 U.S. 476, 484 (1957) (quotation and citation omitted) that it
lacks all protection.  The answer must be that it does not.

	The best evidence in support of this is the Edler decision.  There, the
Court considered the First Amendment challenge to the ITAR on its merits,
and found that it had to read the "technical data" provisions of the
regulations narrowly in order to avoid finding them unconstitutional. Edler
579 F.2d at 519.  The Ninth Circuit considered the issue of the
constitutionality of the regulations as they related to speech, applying, on
the facts before it, the commercial speech standards. Edler 579 F.2d at 520.
The fact that the regulations on their face regulate "export" did not limit
the court from noting that they could be construed to restrict speech and
applying the appropriate standards.  Here, of course, DR. BERNSTEIN's speech
is not commercial speech, so the pure speech standards must be applied.

	Further evidence in support of this conclusion is contained in the Justice
Department's own four analyses of the Constitutionality of the regulatory
scheme,  each of which concluded that the scheme was probably
unconstitutional.  Justice Department, Exhibit A at 60007, 60090 and 60042;
Exhibit B at 60029.  One memorandum, written in 1978, concluded: "it is our
view that the existing provisions of the ITAR are unconstitutional insofar
as they establish a prior restraint on the disclosure of cryptographic ideas
and information developed by scientists and mathematicians in the private
sector."  Justice Department, Exhibit A at 60090 (emphasis added).  The ITAR
regulations which were of concern to the Justice Department in those
memoranda  remain unchanged since that time.

	Even without the Edler decision and the Justice Department's own memoranda,
Defendants restraint of DR. BERNSTEIN's activities raise non-frivolous
Constitutional questions since his intended publication contains all of the
elements of protected speech.


	1.  Plaintiff Seeks To Engage In Academic, Scientific And Political Speech

	First, and most importantly, Plaintiff here seeks to communicate.  He is a
scientist and an academic and seeks to publish his ideas for scientific and
academic discussion.  This is the critical point for First Amendment
purposes, since communication is an essential element for First Amendment
protection.  As Professor Schauer observed:  " It has been suggested that
freedom of speech, properly defined, is freedom of communication." Schauer,
"Speech and 'Speech' - Obscenity and 'Obscenity':  An Exercise in the
Interpretation of Constitutional Language," 67 Georgetown L.J. 899, 918
(1979)(citation omitted).    See also Emerson, "The Doctrine of Prior
Restraint," 20 Law & Contemp. Probs. 48 (1955)("Prior restraint attempts to
prevent an act of communication from occurring.")

	Second, Plaintiff's reasons for wishing to communicate fall within the
mainstream of First Amendment protection.  His stated desire is "for
discussion by the worldwide community."  Complaint Exhibits A and D.  Thus
his communication meets the First Amendment value of the search for truth
through the "marketplace of ideas."  Red Lion Broadcasting Company v.
F.C.C.,  395 U.S. 367, 390 (1969).  Third, his desire to publish his own
ideas for review by his peers fulfills the First Amendment value of
self-expression.  See,  First National Bank of Boston v. Bellotti 435 U.S.
765, 777, 783 (1978).  Thus, his activities fall within the important area
of First Amendment protection for academic discourse, long recognized by the
Supreme Court:

		    The essentiality of freedom in the community of
    American universities is almost self-evident . . .To impose any
    strait jacket upon the intellectual leaders in our colleges and
    universities would imperil the future of our Nation.  No field of
    education is so thoroughly comprehended by man that new
    discoveries cannot yet be made. . . .Teachers and students must
    always remain free to inquire, to study and to evaluate, to gain
    new maturity and understanding; otherwise our civilization will
    stagnate and die.

Sweezy  v. New Hampshire 354 U.S. 234, 250 (1957)( teacher's refusal to
answer questions concerning a lecture on socialism). This freedom is as
important in the area of scientific expression as in other areas of
expression.  As one Court has noted, "[T]he First Amendment protects
scientific expression and debate just as it protects political and artistic
expression."  Board of Trustees of Leland Stanford Univ. v. Sullivan, 773
F.Supp. 472, 474 (D.D.C. 1991).    The Edler court recognized this freedom
even in the commercial speech context, noting the need "to avoid serious
interference with the interchange of scientific and technological
information."  Edler, 579 F.2d at 521.

	In addition, as demonstrated above at footnote 3, Plaintiff has alleged a
colorable claim that he seeks to engage in political speech.  There has been
considerable public debate over the role of cryptography in society and
whether the government's current regulatory scheme is appropriate.
Government agencies are major players in this debate.  When the agencies
which administer laws and regulations which can act as a prior restraint are
also involved in policy formulation about the same subject, there is a clear
risk that these agencies may interfere with that process of political and
social change, and "raise[s] the specter that the Government may effectively
drive certain ideas or viewpoints from the marketplace."  Simon & Schuster,
Inc., v. Members of the New York State Crime Victims Board  502 U.S. 105,
116 (1991).  Here, Plaintiff's speech contributes to the cryptography policy
debate by demonstrating that non- restricted hash functions are in truth as
powerful as the most heavily restricted items, and that one may be easily
converted to the other.  To Plaintiff's audience of scientists and
cryptography policymakers, his speech argues that the government's policy is
arbitrary and ineffective, rebutting the government's public assertions to
the contrary.


	2.	Publication Cannot Be Redefined As "Export."

	 Defendants' attempt to avoid the prior restraint analysis by
characterizing Plaintiff's  publication of computer code as the "conduct of
export" rather than protected speech must fail.  The Supreme Court long ago
recognized that publication cannot be restricted simply by calling it
something else.  In Near v. Minnesota ex rel Olson 283 U.S. 697, 720 (1931),
for example, the Court disallowed a statute which allowed injunctions to be
issued against a newspaper on the grounds that such publication was a
nuisance.  The Court observed, "characterizing the publication as a business
and the business as a nuisance, does not permit an invasion of the
constitutional immunity against restraint."

	Similarly here, characterizing the publication of computer code as "conduct
of export" does not permit the government to avoid the traditional tests of
prior restraints in favor of the less restrictive tests for regulatory
restraints on conduct.  Indeed, the Justice Department itself concluded the
same in reviewing the regulatory scheme, stating: "Thus the ITAR requires
licensing of any communication of cryptographic information, whether
developed by the government or by private researchers, which reaches a
foreign national."  Justice Department,  Exhibit A at 60075 (emphasis added).

	The fact that communication of information cannot simply be relabelled
"conduct of export" to escape First Amendment scrutiny makes the O'Brien
standard proffered by Defendants inapplicable.  As noted above, the statute
here directly regulates the "disclosure" of cryptographic information, and
the government's own rationale for this regulation is that the "disclosure"
itself will harm its interests.  Defendants' Memorandum at 2:7-10. As the
O'Brien Court clarified:

		The case at bar is therefore unlike one where the alleged governmental
interest in regulating conduct arises in some measure because the
communication alleged integral to the conduct is itself thought to be
harmful.  In Stromberg v. California 283 U.S. 359 (1931), for example, this
Court struck down a statutory phrase which punished people who expressed
their "opposition to organized government" by displaying "any flag, badge,
banner, or device."  Since the statute was aimed at suppressing
communication it could not be sustained as a regulation of noncommunicative
conduct.
O'Brien, 391 U.S. at 382.  The Justice Department itself acknowledged that
O'Brien did not apply when reviewing the technical data provisions of the
ITAR: "even a cursory reading of the technical data provisions reveals that
those portions of the ITAR are directed at communication.  A more stringent
constitutional analysis than the O'Brien test is therefore mandated."
Justice Department, Exhibit A, 60083-4, ftnte 16.  Similarly, Defendants'
restraint on publication of Plaintiff's cryptography is directed at
communication and so also requires a more stringent constitutional analysis
than the O'Brien test.

	3.  No Rational Distinction Exists Between Communication Of Ideas In
English 	     Or Mathematical Symbols And Communication of Ideas In Computer

	      Language


	Plaintiff's desired communication of his ideas is clearly protected
expression under the First Amendment.   The only remaining issue is whether
there is any Constitutionally cognizable distinction between the
communication of those ideas in the language of English or mathematical
symbols--which is undeniably protected under the First Amendment--and
communication of those ideas written in the language of computer code.  The
answer must be that there is not.

	First, despite Defendants labeling of Plaintiff's submissions as
"software," it is important to remember that what Plaintiff submitted to
Defendants was computer code written on a piece of paper.  Plaintiff's
submission could not "function" to do anything.

	Second, even if Plaintiff had submitted functioning software, there would
still be no purpose to a distinction between such functioning software and a
complete description of that software in English.  As a practical matter the
distinction serves only to make communication less easy and efficient.  As
Plaintiff will demonstrate more fully at an evidentiary stage in this
litigation, both formulations communicate the same information.  Just as
mathematics is a more precise language for describing some things, computer
programs such as Snuffle.c and Unsnuffle.c are often used, as they are by
DR. BERNSTEIN, as a more precise method of expressing complex procedures.
See Knuth, 1 The Art of Computer Programming 4-5 (1968).  A person with only
a basic understanding of computer programming can translate the English or
mathematical symbols on the paper into computer code.  Indeed, some
computers can already read the mathematical symbols directly;  quite soon
they will be able to do the same with English.

	Third, software is treated as "expression" under the copyright law.  See
Apple Computer v. Formula Int'l Inc. 562 F.Supp. 775, 780 (C.D.Cal. 1983).
The copyright cases implicitly reject the argument that the fact that
software can "function" differentiates it from other forms of protected
expression.

	Finally, and most importantly, Defendants fundamentally mischaracterize the
issue by focusing on whether computer software is "speech."  It is
abundantly clear that Plaintiff has a right to publish his ideas.
Defendants seek to distract the Court from their efforts to edit those ideas
and to force him to publish it only in the languages they choose (English,
as opposed to computer languages).  The Supreme Court has long held that the
First Amendment prohibits the government from restricting the languages
taught or used by its citizens.  Farrington v. Tokushige, 273 U.S. 284,
298-99 (1927); Yniguez v. Arizonans for Official English, 42 F.3rd 1217 (9th
Cir., 1994), reh'g en banc granted, 53 F.3d 1084 (9th Cir.1995).

	 The First Amendment is not about books, music, art or computer software;
it is about limiting the Government's power to restrict the individual's
right to speak, publish, or otherwise express himself.  By authority of the
statute and the regulations promulgated by Defendants under the statute, the
Government claims the power to censor and license Plaintiff's speech.  Here,
they evidently wish him to modify the language of his speech.  Such enforced
modification is clearly improper.

	Software is speech.  It is information.  Plaintiff does not claim that the
mere sale of a computer program can never be regulated just as a book,
record, or compact disc can be.  But just as both information written in the
notes of sheet music and the step-by-step instructions for recipes in a
cookbook are speech protected against prior restraints, so too is software.

	C.	Encryption Software, since it Allows Private Speech,  Is Especially
Protected by the First Amendment.


	The very alleged "function" of encryption software--to allow private
speech--imbues the software with First Amendment concern.  The government's
scheme will have the effect of controlling the end result--private
speech--by controlling the tools necessary to reach that result.  Yet the
Supreme Court has long held that the government cannot target the tools of
expression in order to improperly restrict expression itself.  As Tribe
states: "the Court has been careful to scrutinize government actions that,
while facially noncensorial, might in application prove unduly burdensome on
publishers."  Tribe, American Constitutional Law  12-25, at 998 n. 4 (2d.
ed. 1988).  See Minneapolis Star & Tribune Co. v. Minnesota Comm'r of
Revenue, 460 U.S. 575, 585 (1983) (invalidating "use tax" on paper and ink
products consumed in newspaper publication); Murdock v. Pennsylvania, 319
U.S. 105, 112 (1943) (invalidating license tax on sales, as applied to
Jehovah's Witnesses selling religious literature, emphasizing that sales
were "merely incidental and collateral" to principal aim of disseminating
religious beliefs).

	Here, the government claims to be regulating "export," but in effect
burdens publication of a tool which can help people to speak privately.
This will undoubtedly have a chilling effect on all kinds of everyday
communication, and so must pass Constitutional muster in order to be upheld.
The First Amendment includes the right to speak confidentially.  See. e.g.
United States  v. United States District Court 407 U.S. 297, 314 (1972).  It
prevents "compelled speech", and preserves the autonomy to control one's own
speech.  Hurley v. Irish-American Gay Group of Boston, 115 S.Ct. 2338
(1995).   It protects anonymous speech.  McIntyre v. Ohio Elections Com'n.
115 S.Ct. 1511, 1516 (1995).  It prevents compelled disclosure of those with
whom one associates and speaks.  NAACP v. Alabama ex rel. Patterson 357 U.S.
449, 462 (1958).  It requires, as noted earlier, that the government allow
people to speak in any language they choose.  See, supra at 22.  It extends
to a person's right to communicate with foreigners.  Bullfrog Films, Inc. v.
Wick, 842 F.2d 502, 509, n.9 (9th Cir. 1988).

	If the government is successful here, it will undermine all of these
protections.  It will prevent U.S. citizens from engaging in private,
electronic communications with foreign persons.  As a practical matter, it
will also restrict private domestic electronic communications. Citizens will
not use separate communication systems for communications to U.S. persons
and foreign persons -- with the result that government and third parties
will have easy access to the domestic communications of citizens.  This
effectively compels people to speak to third parties or the government, by
restricting the ability to prevent those parties from listening to their
conversations.  If the government is successful here, it will eliminate
anonymity, forcing citizens to reveal their private associations to the
government and others, including high-tech criminals.  By restricting access
to the tools which allow anonymity and privacy, the government puts the
communications of all of its citizens at risk.

	  D.	Plaintiff's Ultra Vires Claims Are Colorable.

	Defendants have exceeded their lawfully delegated authority in promulgating
and applying the ITAR to Plaintiff and to others similarly situated because
Congress never intended that the AECA be applied to the publication academic
or scholarly publication of scientific and technical information.
Plaintiff, a university professor, seeks to engage in international,
scientific exchange intended to achieve public disclosure to those
interested in cryptography.

	The language used by Congress in the AECA strongly indicates that only
commercial military sales - true "arms sales," as one would normally think
of the term - are covered by the statute.  This conclusion is supported by
the statutory scheme.  22 U.S.C. 2794(7) refers to "commercial exports
subject to the provisions 2778 of this title;"  22 U.S.C. 2778(b)(1)(A)
imposes the registration on those "in the business of manufacturing,
exporting or importing"; 22 U.S.C.  2778(g)(2) provides that export license
applicants must "identify in the application all consignees and freight
forwarders involved in the proposed export"); 22 U.S.C.  2778(g)(9)(D)
refers to the "party applicant"  as "president, chief executive officer, and
other senior officers of the license applicant," and mentions "freight
forwarders or designated exporting agent of the license application."

	Nowhere does the statutory language or legislative history reflect an
intent to control academic publication, a fact noted by the Justice
Department in its 1978 Memorandum: "it is by no means clear. . . that
Congress intended that the President regulate noncommercial dissemination of
information, or considered the problems such regulation would engender.  We
therefore have some doubt whether [the AECA] provides adequate authorization
for the broad controls over cryptography which the ITAR imposes."  Justice
Department, Exhibit A 60083-4, footnote 7.  Thus, Plaintiff has stated a
colorable claim of ultra vires action by Defendants.

	Defendants claim that Plaintiff's ultra vires claims may not be heard,
citing United States v. Bozarov, 974 F.2d 1037 (9th Cir. 1992) and Dalton v.
Specter, 114 S.Ct. 1719, 1725-27 (1994).  This misreads Bozarov, where the
Ninth Circuit plainly stated that "we believe that claims that the Secretary
[of Commerce] acted in excess of his delegated authority under the EAA are
also reviewable."  Bozarov, 974 F.2d at 1045.  Dalton, moreover, is
inapposite.  The only review possible in Dalton was review of Presidential
action for constitutionality.  Here, the actions complained of are those of
the President.

		II.	JUDICIAL REVIEW IS NOT PRECLUDED

			UNDER THE POLITICAL QUESTION DOCTRINE

		Second, Defendants conclude, after a truncated analysis, that "insofar as
Plaintiff's claims raise, or even implicate, [the Secretary's designation of
an item on the USML], they are non-justiciable."  Defendants' Memorandum at
8:12-14 (emphasis added).  This analysis of justiciability is inadequate,
and the conclusion is incorrect.  First, DR. BERNSTEIN is not seeking
judicial review of the agencies' decision to place cryptographic information
on the USML.  Second, implementation of national security and foreign policy
under the AECA which violates the First and Fifth Amendments is not an act
of government which is "constitutionally committed to the political
branches" to the exclusion of the Judiciary.  Third, the Judiciary has
standards for resolving the First and Fifth Amendment issues in this case.
Finally, enforcement of the AECA does not require the type or degree of
finality that would justify superseding judicial review of constitutional
issues.

	That Courts have reviewed numerous First Amendment cases presenting
national security concerns strongly suggests that this case is justiciable
and that the political question doctrine does not prevent review.  See e.g.,
Pentagon Papers.  In that case, the Supreme Court struck down an injunction
against publication of the Pentagon Papers as an invalid prior restraint,
even though the papers contained information about the Vietnam War which was
still in progress.  In fact, even under the AECA Courts have consistently
reviewed alleged First and Fifth Amendment violations.  U.S. v. Posey. 864
F.2d 1487, 1496-7 (9th Cir. 1989) (reviewing First and Fifth Amendment
issues under AECA); Edler, Supra, (reviewing First Amendment challenge).
The political question doctrine similarly does not preclude judicial review
of Plaintiff's case.   	

		A.	THE PROPER POLITICAL QUESTION ANALYSIS

	The political question doctrine may be reduced to three basic questions:

		(i) Does the issue involve resolution of questions committed by the Text
of the Constitution to a coordinate political branch?  (ii) Would resolution
of the question demand that a court move beyond areas of judicial expertise?
(iii) Do prudential considerations counsel against judicial intervention?

Goldwater v. Carter, 444 U.S. 996, 998 (1979) (Powell, J. concurring).

		1.   Defendants' Argument Addresses the Wrong Questions

	Plaintiff claims that power to require a license for his intended
noncommercial publication is lacking under the AECA and that he has been and
is the subject of an unlawful prior restraint on publication.  Without
addressing this argument, Defendants primarily rely on cases holding that
whether a particular item is on the USML or on the Commodity Control List
("CCL") administered by the Commerce Department under the Export
Administration Act (EAA)  is a political question.  See, e.g., United States
v. Martinez, 904 F.2d 601, 602 (11th Cir. 1990) (USML);  United States v.
Spawr Optical Research, Inc. 864 F.2d 1467, 1473 (9th Cir. 1988) (CCL).

	These cases do not support a finding of a non-justiciable political
question here.  To the contrary, these cases support the need for judicial
review of Plaintiff's constitutional and ultra vires claims.  A challenge to
a designation is "political" because it involves "judicial factfinding on
intricate licensing questions" which "would severely undermine [executive]
authority if judges and juries ...were permitted to reverse licensing
determinations."  Spawr Optical, 864 F.2d at 1473; see Bozarov, 974 F.2d at
1044 ("politically disastrous" if circuits differed on what exports were
permitted).

	Yet Plaintiff here does not seek review of Defendants "intricate licensing
determinations"; he seeks review of a licensing scheme on ultra vires or
constitutional grounds.  That these claims represent entirely different
legal issues was recognized explicitly by the Eleventh Circuit in Martinez,
904 F.2d at 603, which noted "defendants do not assert that Congress lacks
power to place restrictions on exports [or] that the statute ... violates
any right secured to them by the Constitution."  As the Court observed in
Baker v. Carr,   "The courts cannot reject...a bona fide controversy as to
whether some action denominated 'political' exceeds constitutional
authority."  Baker v. Carr, 369 U.S. 186, 217 (1962).


		B.	A CONSTITUTIONAL COMMITMENT TO A COORDINATE BRANCH

		The first element in the political question doctrine is "the existence of
a `textually demonstrable constitutional commitment of the issue to a
coordinate political department.' [] This turns on an examination of the
constitutional provisions governing the exercise of the power in question."
Goldwater,  444 U.S. at 998.  (Quoting Baker, 369 U.S. at 217) (citation
omitted).  The current case involves the interface between the First and
Fifth Amendment on the one hand and alleged foreign relations and national
security concerns on the other.

		The federal judiciary is indisputably the branch of the federal government
charged with the ultimate enforcement of the First and Fifth Amendments
because such review is necessary in order to maintain the fundamental
integrity of the Constitution.   Accordingly, abdication of judicial review
in a case involving these rights on the ground that the issue is textually
committed to a coordinate branch is nearly untenable.

		The need for judicial review is nowhere greater than in the current
context of the First Amendment and prior restraints.  Imposition of a valid
final restraint on expressive activity is one that is constitutionally
committed to the judiciary  to the exclusion of the political branches.   As
the Court noted in the seminal case of Freedman, 380 U.S. at 58: "because
only a judicial determination in an adversary proceeding ensures the
necessary sensitivity to freedom of expression, only a procedure requiring a
judicial determination suffices to impose a valid final restraint."

		Defendants may argue that this is a "foreign affairs" case and so is
committed to the Executive or the Legislature.  As one Court has observed,
however, "[E]very act taken by the Executive having an effect beyond the
country's borders may be described as political, with a potential or actual
impact on our foreign relations," (Ramirez de Arellano v. Weinberger, 745
F.2d 1500, 1515 (D.C. Cir. 1984) (en banc) vacated as moot, 471 U.S. 1113
(1985)),  but this is not the test for political question.  Here the
Defendants take at least one step further -- they claim that the question of
whether they may control acts of publication within the United States is a
"political question," merely because a foreign person within our borders
might receive the information.  Ours is an open society.  Every general
publication communicates to foreigners.  This fact alone cannot make a
matter so involved with foreign affairs that it is nonjusticiable.

		Even if this could be considered a "foreign affairs" case, it is still
justiciable.  "It is error to suppose that every case or controversy which
touches foreign relations lies beyond judicial cognizance."  Baker, 369 U.S.
at 211.  When, as here, the challenge is to the implementation of foreign
policy not to the policy itself, adjudication is necessary.  DKT Mem. Fund
v. AID, 810 F.2d 1236, 1238 (D.C. Cir. 1987) (challenge to policy of barring
funds to foreign organizations that perform or promote abortion); accord, No
GWEN Alliance v. Aldridge, 855 F.2d 1380 (9th Cir. 1988) (challenge to
installation designed for messages to strategic forces during and after
nuclear war for noncompliance with environmental assessment requirements).

	Here, Plaintiff is not challenging the wisdom of arms export controls in
the furtherance of "world peace and the security and foreign policy of the
United States."  22 U.S.C. 2778(a)(1).  He is a mathematics professor who
wishes to publish papers in the United States about cryptography, some of
which contain computer programs.  He challenges the legality of subjecting
such publications to a prior restraint scheme and the lack of procedural
safeguards in that scheme.  His challenge is therefore to the "method of
administering that policy," not to the policy itself.  See Lamont v. Woods,
948 F.2d 825, 832 (2nd Cir. 1991).

	National security is often invoked in an attempt, as here, to preclude
judicial review of alleged Constitutional violations.  Such claims have
rarely been effective.  On the contrary, judicial review in this context has
been the rule, even in the "Cold War" era.  In Aptheker v. Secretary of
State, 378 U.S. 500 (1964),  the government denied a passport to the
American Communist Party Chairman on national security grounds and, when
sued, claimed that the denial presented a political question.  The Supreme
Court responded:

		Even though the governmental purpose may be legitimate and substantial,
that purpose cannot be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly achieved.  The breadth
of legislative abridgment must be viewed in the light of less drastic means
for achieving the same basic purpose....the Constitution requires that the
powers of government must be so exercised as not, in attaining a permissible
end, unduly to infringe a constitutionally protected freedom.

Aptheker, 378 U.S. at 508-09 (citations and internal quotations omitted).

		The District of Columbia Circuit has recently confirmed this conclusion.
National Federation Of Fed. Employees v. Greenberg, 983 F.2d 286, 290 (D.C.
Cir. 1993).  In Greenberg, responding to recent breaches of national
secrets, the Department of Defense placed probing questions to its
employees.  The employees challenged the Department's questionnaire on
various Constitutional grounds.  The Department argued that the case
involved national security and was therefore nonjusticiable.  Echoing
Aptheker, the Court held that while it could not pass upon whether employees
posed a threat to national security, "the judiciary still may properly
scrutinize the manner in which the [government's national security]
objective is to be achieved," and could review the "constitutionality of the
methods used to gather information on which such judgments presumably will
be based."   Greenberg, 983 F.2d at 290.

		C.	THE JUDICIARY HAS STANDARDS TO REVIEW THIS CASE

		First and Fifth Amendment claims challenging the exercise of the federal
government's power are exactly the sort of claims which should be resolved
by the federal judiciary; they necessitate interpretations of the
Constitution and of federal statutes--which are quintessential tasks of the
federal Judiciary.  Ramirez de Arellano, 745 F.2d at 1513, citing Powell v.
McCormack, 395 U.S. 486, 548-49 (1969).  The need for judicial review is
nowhere greater than for prior restraints upon speech:  "only a procedure
requiring determination suffices to impose a valid final restraint."
Freedman, 380 U.S. at  58.  This is true even for "national security" prior
restraints.  See Pentagon Papers, supra.

		The courts are well-equipped to decide First Amendment cases in the
context of foreign policy and national security concerns.  See Boos v.
Barry, 485 U.S. 312 (1988) (striking down content based restrictions on
display placards critical of foreign governments outside those governments'
embassies); Haig v. Agee, 453 U.S. 280 (1981) (disclosures damaging to
intelligence operations and threatening to lives of American personnel are
not protected by First Amendment); Bullfrog Films, Supra, (assessing
governments' interest under foreign affairs of suppressing content of
exported film, and analyzing regulations for vagueness).



			D.	PRUDENTIAL CONSIDERATIONS

	No "prudential considerations" apply here.  The "prudential considerations"
of importance in foreign affairs are "finality" and the risk of
"embarrassment" from "multifarious pronouncements by various departments on
one question."  Baker, 369 U.S. at 217.  Finality is not concerned with
reasons for the original action, but that an action once taken not be
altered.  See Champlin & Schwartz, "Political Question Doctrine and
Allocation of The Foreign Affairs Power," 13 Hofstra L. Rev. 215, 242
(1985).   In Baker, the Court provided the example of the need for finality
in support of a declaration of war.  Here, in contrast, there is no "unusual
need for unquestioning adherence to a political decision already made,"
Baker, 369 U.S. at 217, to suppress speech about cryptography.

	Foreign affairs may also "uniquely demand single-voiced statement of the
Government's views."  Baker, 369 U.S. at 211.  But this case can hardly be
compared to the nonrecognition of a foreign state or "sovereignty over
disputed territory."  Judicial review here will not result in multifarious
pronouncements by various departments on one question, because the courts
are the ultimate interpreters of the Constitution.  Powell, 395 U.S. at 521
.  For example, the executive agreement resolving the Iranian hostage crisis
arguably was a political question because of finality and foreign affairs
univocalism.  Yet the merits were reached.  Dames & Moore v. Regan, 453 U.S.
654, 686-68 (1981); see also Japan Whaling Assoc. v. American Cetacean
Society, 478 U.S. 221, 230 (1986).  In this case, therefore, finality and
univocalism present no barriers to judicial consideration of Plaintiff's
claims.

	In sum, Plaintiff's claims are not nonjusticiable political questions: the
judiciary has the standards to decide this case and no countervailing
consideration is presented.



		III.  JURISDICTION EXISTS UNDER THE ADMINISTRATIVE
		      PROCEDURE ACT ("APA").


	A.    The Preliminary Requirements for APA Jurisdiction Have Been Met.

	 Defendants also argue that subject-matter jurisdiction is lacking because,
inter alia, 22 U.S.C. 2778(h) precludes review under the APA.  An analysis
of the APA requirements, however,  reveals that judicial review is
appropriate here.

		1.  Preclusion Of Judicial Review Claim Would Effectively
                    Deny Plaintiff A Judicial Forum For Asserting His
                    Constitutional Claims.

	Reading the statutory preclusion of 2778(h) to reach Plaintiff's
constitutional and ultra vires claims would deny him a judicial forum.  The
government's reading stretches language expressly about "the designation, in
regulations" to include any claim that "implicates" the Secretary's
authority over arms export controls.  This would render the Courts entirely
unable to review the ITAR.

	Preclusion of judicial review is especially abhorrent where an
unconstitutional prior restraint and other First Amendment claims are
alleged.  "[O]nly a judicial determination in an adversary proceeding
ensures the necessary sensitivity to freedom of expression," and "only a
procedure requiring a judicial determination suffices to impose a valid
final restraint."  Freedman, 380 U.S. at 58.   Here, judicial review of the
restraint must be allowed to ensure that the Constitutional rights of
Plaintiff and others are preserved.

		2.      There Was Final Agency Action

	The APA provides for judicial review of "final agency action."  5 U.S.C. 
704.  In determining finality, "[t]he core question is whether the agency
has completed its decision-making process, and whether the result is one
that will directly affect the parties."  Franklin v. Massachusetts, 112
S.Ct. 2767, 2773 (1992).

	Here, the Defendants' designation of the items as being on the USML
triggered duties to register and obtain a license to publish, and Plaintiff
was thereby "aggrieved."  Finality existed when the State Department decided
that a license was needed, because the key issue in Plaintiff's claim of
unconstitutional prior restraint is the license requirement.

	Agencies may evade finality of initial decisions either by mandating appeal
or by "providing that the initial decision would be 'inoperative' pending
appeal.'"  Darby v. Cisneros, 113 S.Ct. 2539, 2547 (1993).  The designation
here was not provisional; the Defendants' letters to Plaintiff flatly stated
that he needed a license to export.  Neither the AECA nor ITAR provides that
a determination is inoperative pending appeal or that any appeal is
mandatory or a prerequisite to judicial review.  ITAR 120.4(g).   Therefore,
the designation of Plaintiff's work as an item on the USML was "final agency
action" under the APA.

	Jurisdiction under the APA requires only finality, not exhaustion.  The APA
was designed to "remove obstacles to judicial review of agency action."
Bowen v. Massachusetts, 487 U.S. 879, 904 (1992) (citation omitted).  Courts
may not require exhaustion where the agency action has already become
'final'" under the APA, because Congress "has limited the availability of .
. . exhaustion . . . to that which the statute or rule clearly mandates."
Darby, 113 S.Ct. at  2544.

	B.     Review Under The APA Is Not Precluded

	Defendants merely assert, without argument, that this case is unreviewable.
Defendants' Memorandum  5 n.5.  This assertion is incorrect because, as
noted above, 2778(h) precludes only the review of designation of items on
the USML.  Plaintiff does not challenge such a designation, but instead
raises claims of unconstitutional and ultra vires agency action.

	In addition, although Defendants did not argue that judicial review is
precluded "to the extent that. . . .matters are committed to agency
discretion by law,"  (5 U.S.C.  701(a)(2)),  Plaintiff will address this
issue.  This is because challenges to subject-matter jurisdiction are never
waived under F.R.C.P. 12(h)(3), and Plaintiff wishes to avoid the
possibility of piecemeal litigation of jurisdictional issues.

		1.      Judicial Review Is Presumed.

	The APA embodies a "basic presumption of judicial review."  Lincoln v.
Vigil, 113 S.Ct. 2024, 2030 (1993), quoting Abbott Laboratories v. Gardner,
387 U.S. 136, 140 (1967). Preclusion under   701(a) is limited by its own
terms only "to the extent that" statutes or commitment to agency discretion
by law require.  Review is not precluded otherwise, and any finding of
unreviewability must be confined to the precise extent of Congressional
intent or scope of agency discretion.

	The presumption of reviewability is especially  strong where
unconstitutional and ultra vires actions are alleged.  First, Plaintiff
claims that the AECA does not authorize regulation of more than commercial
arms exports and technical data related thereto  (Complaint paras. 187 &
192) and Defendants here regulate more than this authorization allows.  The
Supreme Court has long recognized that such determinations are rightfully
made by the courts:

	    When Congress passes an Act empowering administrative
    agencies to carry on governmental activities, the power of those
    agencies is circumscribed by the authority granted...  The
    responsibility of determining the limits of statutory grants of
    authority is a judicial function entrusted to the courts by
    Congress. . . .  [U]nder Article III, Congress established courts
    to adjudicate . . . claims of infringement of individual rights .
    . . by the exertion of unauthorized administrative power.

Stark v. Wickard, 321 U.S. 288, 309 (1944) (milk producers had standing to
sue to enjoin Secretary of Agriculture from carrying out regulations).  This
presumption is strong even in the export control context.  In  Bozarov, 974
F.2d at 1045, the Ninth Circuit acknowledged that "claims that the Secretary
acted in excess of his delegated authority under the EAA are also reviewable."

	Second, Plaintiff also claims that the statutory and regulatory scheme
is unconstitutional.   Complaint counts 1-9 and paras. 190 and 191.  Again,
these claims are rightfully determined by the courts.  "[A]djudication of
the constitutionality of congressional enactments has generally been thought
beyond the jurisdiction of administrative agencies." Johnson v. Robison, 415
U.S. 361, 368 (1974)(citation omitted) (permitting review of constitutional
challenges to veterans' benefit legislation despite preclusion provision).

	Third, the potential national security issues here do not eliminate the
presumption of reviewability.  Although in Department of the Navy v. Egan,
484 US 518, 527 (1988), the Supreme Court noted that the presumption of
reviewability  is not without limit, and runs aground when it concerns
national security,  Egan is easily distinguished.  Egan's petition for
review was based solely on the merits; he raised neither the ultra vires nor
the constitutional challenges raised here.  Id. at 521.  As this Court has
noted, "deference to Executive Branch decisions does not require the
judiciary to abdicate its authority under Article III."  Doe v. Schachter
804 F.Supp. 53, 58 n.3 (N.D.Cal. 1992), quoting Dubbs v. C.I.A. 769 F.Supp.
1113, 1116 n.3 (N.D.Cal. 1990).

		2.  	Plaintiff Does Not Challenge the Designation of An Item To Be On
The USML.


	5 U.S.C.  701(a)(1) "is concerned with whether Congress expressed an
intent to prohibit judicial review."  Webster, 486 U.S. at 599.
Congressional intent is to be discerned "from [a statute's] express
language, . . . the structure of the statutory scheme, its objectives, its
legislative history, and the nature of the administrative action involved."
Block v. Community Nutrition Institute, 467 U.S. 340, 345 (1984).  The APA's
legislative history indicated no intent to give agencies "blank checks."
Bowen v. Michigan Academy of Family Physicians,  476 U.S. 667, 671,
(1986)(citations omitted).

	The overall language, structure, purpose and legislative history of the
AECA, as enacted in 1976, do not demonstrate that Congress clearly intended
to foreclose judicial review of Plaintiff's claims of unconstitutional and
ultra vires agency action.  As amended in 1989, the AECA precludes review of
the designation in regulations of items on the USML.  22 U.S.C.  2778(h).
Nowhere else does the AECA preclude judicial review.  Congress could not
have intended to preclude judicial review broadly when it originally enacted
the AECA; had it so intended, the 1989 amendment would have been unnecessary.

	a.      The Text Of The Preclusion Provision Does Not Reach The Legal Issues
                Raised In This Case

	Congress knows how to preclude judicial review entirely.  It did not do so
here.  The text of  2778(h) extends only to the "designation . . . , in
regulations under this section, of items as defense articles or defense
services for purposes of this section." Plaintiff claims that the export
licensing requirements abridge his freedom to publish;  he does not
challenge the determination that his items are on the USML.  The second
question raised is whether the AECA authorizes the Secretary to control
Plaintiff's intended non-commercial publication.  Plaintiff's ultra vires
claim therefore "implicates" the Secretary's authority, but does not
challenge the merits of the designation.

	  2778(h) is not clear and convincing evidence of legislative intent to
preclude review of such claims because the questions sought to be litigated
are not within its express language.  See Johnson, 415 U.S. at 367-68.
Congress has clearly precluded one issue -- the designation, by regulation,
of items as defense articles or defense services -- nothing else.

	Plaintiff's position is strengthened when the text of  2778(h) is compared
to other preclusion provisions.  The provision at issue in Lindahl  v.
Office of Personnel Management, 470 U.S. 768, (1985) declared that
"decisions" of the Office of Personnel Management "concerning" questions of
disability and dependency in administering the Federal Government's
disability retirement program "are final and conclusive and are not subject
to review," 5 U.S.C.  8347(c).  The Supreme Court in Lindahl compared that
provision to another preclusion provision  and found that "when Congress
intends to bar judicial review altogether, it typically employs language far
more unambiguous and comprehensive than that set forth in  8347."  Lindahl,
470 U.S. at 791.  While the "factual underpinnings" of disability
determinations were "final," review is available to determine whether "there
has been a substantial departure from important procedural rights, a
misconstruction of the governing legislation, or some like error 'going to
the heart of the administrative determination.'"  Lindahl. 479 U.S. at 791.
In contrast, the Supreme Court has read other statutory language as clearly
precluding review.  In  Weinberger v. Salfi, 422 U.S. 749, 762 (1975), the
Court noted that the statute before it was "not limited to decisions of the
Secretary on issues of law or fact. . . .  [I]t extends to any 'action'".

	The preclusion provision of the EAA is especially illuminating because it
operates in a an area related to the AECA.  Judicial review under the APA is
unavailable for any EAA "function."  50 U.S.C. App.  2412(a).  This
language suggests a broad intent to preclude judicial review.  22 U.S.C. 
2778(h) is plainly narrower than these provisions.  It does not preclude
review of "any action, "function," or any decision "on issues of law or
fact."  It merely precludes review of "the designation, in regulations."
This is not a clause which precludes all judicial review.

	b.      The Legislative History Demonstrates No Intent On Congress's Part
                Of Any Broader Meaning.


	In addition,  2778(h) was added to the AECA by a 1989 amendment after the
main hearings on the bill.  Pub.L. 101-222,  6, Dec. 12, 1989, 103 Stat.
1896, 1899.  The vast majority of the discussion on the bill concerned
amendments made to the antiterrorism portions of the AECA in the wake of the
discovery, during the Iran-Contra controversy, that the United States was
supporting a known terrorist nation.  Just before the bill was passed,
however, the chair of the House Committee on Foreign Affairs noted on the
floor of the House that H.R. 91 incorporated "minor changes which were of
concern to the  Senate Banking Committee."  One of these changes, "concerns
the judicial review procedures for placing items on the USML.  Items placed
on the USML will not be subject to judicial review." 135 Cong.Rec. H9626,
Nov. 21, 1989.

	Congress did not want arms exporters to challenge the merits of USML
designations.  But Congress created no other bar to judicial review.  Again,
comparison with the EAA is appropriate.  Broad preclusion under the EAA is
supported by the legislative history.  The re-enactment of the EAA
"continues the exemption of all functions exercised under the Act from the
[APA] and from judicial review."  S. Rep. No. 96-169, 96th Cong., 1st
Session 17 (1979), reprinted in U.S.C.C.A.N. at 1147, 1164.  No comparable
language exists in the AECA's legislative history.  Furthermore,  2778(h)
was added long after the 1976 enactment of the AECA and would have been
unnecessary unless judicial review of USML designations had previously been
available.  Therefore, 2778(h) provides the entire scope of judicial
preclusion.

	c.   	The AECA Has No Comprehensive Statutory Scheme Indicating Preclusion
of Judicial Review.


	Where Congress enacts a comprehensive statutory scheme prescribing in
detail the protections and remedies for agency action, including the
availability of administrative and judicial review, intent to preclude
judicial review may be discerned from the structure.  United States v.
Fausto, 484 U.S. 439, 449-51 (1988) (structure of Civil Service Reform Act
of 1978 indicated Congressional intent to enact comprehensive remedial
scheme).

	The AECA scheme may again be contrasted with that of the EAA, which
provides specific directions as to the processing of export license
applications, 50 U.S.C. App.  2409, the enforcement process, 50 U.S.C. App.
 2411, and administrative procedure and judicial review, 50 U.S.C. App. 
2412.  Such a scheme is comprehensive and supports preclusion of review.
In contrast, when considered as a whole, the AECA shows no Congressional
intent to preclude judicial review of Plaintiff's ultra vires and
constitutional claims.  Unlike the "scheme" in Fausto or the EAA, the AECA
establishes no comprehensive system of judicial and administrative remedies
for those affected by agency action, and displays no intent to displace the
jurisdiction of an Article III Court.

	3.      Plaintiff's Claims Are Not Precluded under the "Committed to Agency

	         Discretion" Provision of 5 U.S.C.  701(a)(2).


	Under 5 U.S.C.  701(a)(2), judicial review must be available unless "in a
given case there is no law to apply" and "a court would have no meaningful
standard" for judging.  Beno v. Shalala, 30 F.3d 1057, 1066 (9th Cir. 1994).

		a.      The AECA does not "exude deference."

	The initial question in applying 701(a)(2) is whether Congress has given
such broad discretion to the agency that there is "no law to apply." Here,
they have not.  First, Congress here has set standards to follow.  The AECA
"evinces a congressional intent to delineate narrowly the scope of
information subject to arms controls."  Edler, 579 F.2d  at 521.  AECA
export licensing decisions shall be "issued in accordance with this chapter
and regulations under this chapter."  22 U.S.C.  2778(b)(2).  Decisions on
issuing export licenses shall take into account specified statutory factors.
22 U.S.C.  2778(a)(2).  The entire thrust of the legislation was to control
executive discretion.  As the House Report notes, the bill reflected the
"strong desire to provide for increased congressional participation in the
formulation of U.S. military assistance and sales policies and programs."
H. Rep. No. 94-1144, at 11, 94th Cong., 2nd Session 11 (1976), reprinted in
U.S.C.C.A.N. 1378, 1387.

	Second, the purposes of the statute would not be endangered by review.
Plaintiff's challenges do not require "judicial factfinding on intricate
licensing decisions."  See  Spawr Optical, 864 F.2d at 1473;  cf.Martinez,
904 F.2d at 602-03.   The Eleventh Circuit's holding in Martinez explicitly
recognized this distinction:

		"The defendants do not assert that Congress lacks power to place

		restrictions on exports.  They do not contend that the statute under which

		they were prosecuted violates any right secured to them by the

		Constitution. . . .  Instead, they ask [the court] to excuse conduct which

		they knew to be criminal, based on their disagreement with a political

		decision made by the Executive[.]"

Martinez., 904 F.2d at 603.  Plaintiff's claims are those which the Martinez
defendants did not assert.  He claims that applying the AECA to him exceeds
statutory authority because the statute only regulates true arms exports,
and violates the First Amendment because his desired publication is
protected speech.

	b.      In this case, both the AECA and the Constitution provide "law to
apply."

	Plaintiff's claim of ultra vires agency action is one for which there is
law to apply, because whether statutory authority has been exceeded is a
"pure question of statutory construction for the courts to decide."  INS v.
Cardoza-Fonseca, 480 U.S. 421, 446 (1987).

	Issues of constitutionality also permeate the ultra vires analysis. In
Edler, the Ninth Circuit perceived no barrier to its authority to construe
the ITAR and the Secretary's authority under the AECA's predecessor statute
in order to avoid constitutional questions arising from the facial
overbreadth of the technical data provisions there.  The Ninth Circuit
narrowed the regulations and the statute, requiring both that any controlled
technical data be "significantly and directly related to specific articles"
on the USML and that "[i]f the information could have both peaceful and
military applications . . . the defendant must know or have reason to know
that its information is intended for the prohibited use."  Edler, 579 F.2d
at 521.  Edler shows that the First Amendment and traditional tools of
statutory construction provide judicially manageable standards in this case.

		CONCLUSION

	Plaintiff alleges that Defendants have instituted a prior restraint on his
communication because the ITAR requires a licensing process prior to the
communication of his ideas.  Plaintiff raises colorable claims that he seeks
to engage in scientific, academic and political speech and that the
regulations suppress communication of ideas that can facilitate the security
and privacy of electronic speech.  The ITAR do not merely regulate the
conduct of export.  By including in their sweep the "disclosure" of
technical data and information relating to cryptography, including software,
they amount to a prepublication licensing scheme.  As such, they must be
judged by the constitutional standards set forth for prior restraints.

		This conclusion is not affected by the claim that the regulations relate
to foreign policy:

		there is no 'sliding scale' of First Amendment protection under which the

		degree of scrutiny fluctuates in accordance with the degree to which the

		regulation touches on foreign affairs.  Rather, the only permissible

		non-neutral inquiry into the content of the speech is whether the

		statements adversely affect foreign policy interests to such a degree that

		the speech is completely unprotected.

Bullfrog Films, Inc., 847 F.2d at 512, quoting Bullfrog Films, Inc. v. Wick,
646 F.Supp. 492, 504 (C.D.Cal. 1986).

	Plaintiff's claims here are sufficient to prove that jurisdiction exists.
Real constitutional issues are at stake; Plaintiff's communication, not his
conduct, was restrained.  Courts, not agencies have jurisdiction over
restraints on communication, with tests which are clearly set out in prior
caselaw.  Neither the political question doctrine nor the APA preclude
review here.

	The appropriate test for judging the prior restraint of Plaintiff's speech
here is laid out in the Pentagon Papers case: whether publication of the
items "will surely result in direct, immediate and irreparable damage to our
Nation or its people."  Pentagon Papers 403 U.S. at  730 (Stewart, J.,
concurring).  The appropriate test for judging the procedural validity of
this prior restraint is set out in Freedman v. Maryland and its progeny.
The appropriate test for determining whether statutes and regulations which
impact protected expression are consistent with the First Amendment is
whether "the government [can] show that the regulation is a precisely drawn
means of serving a compelling state interest."  Perry Education Ass'n v.
Perry Local Educators' Ass'n. 460 U.S. 37, 45 (1983).  If Defendants cannot
pass these tests, their regulations cannot survive Constitutional scrutiny.

	Accordingly, Plaintiff respectfully requests that Defendants' Motion to
Dismiss be denied.


Dated: _______________ 		McGLASHAN & SARRAIL
                                Professional Corporation		

		 		By________________________
				CINDY A. COHN
				Attorneys for Plaintiff
				Daniel J. Bernstein