[This ASCII version does not include the footnotes from the original. We plan to correct this as soon as convenient.] 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