teller machines and certain mass market software products that use encryption. Id.
C. Plaintiff's Commodity Jurisdiction Determinations
On June 30, 1992 Bernstein submitted a commodity jurisdiction ("CJ") request to the State Department to determine whether three items were controlled by ITAR. Those items were Snuffle.c and Unsnuffle.c (together referred to as Snuffle 5.0), each submitted in C language source files, and his academic paper describing the Snuffle system. Complaint Exh. A. On August 20, 1992 the ODTC informed Bernstein that after consultation with the Departments of Commerce and Defense it had determined that the commodity Snuffle 5.0 was a defense article under Category XIII of the ITAR and subject to licensing by the Department of State prior to export. The ODTC identified the item as a "stand-alone cryptographic algorithm which is not incorporated into a finished software product." Complaint Exh. B. The ODTC further informed plaintiff that a commercial software product incorporating Snuffle 5.0 may not be subject to State Department control and should be submitted as a new commodity jurisdiction request.
Plaintiff and ODTC exchanged copious and contentious correspondence regarding the licensing requirements during the spring of 1993. Still unsure if his academic paper had been included in the ODTC CJ determination of August 20, 1992, Bernstein submitted a second CJ request on July 15, 1993, asking for a separate determination for each of five items. According to plaintiff these items were 1) the paper, "The Snuffle Encryption System," 2) Snuffle.c, 3) Unsnuffle.c, 4) a description in English of how to use Snuffle, and 5) instructions in English for programming a computer to use Snuffle.
On October 5, 1993 the ODTC notified Bernstein that all of the referenced items were defense articles under Category XIII(b)(1). Complaint Exh. E; Defendant Exh. 18. After plaintiff initiated this action, the ODTC wrote to plaintiff to clarify that the CJ determinations pertained only to Snuffle.c and Unsnuffle.c and not to the three items of explanatory information, including the paper. Defendant Exh. 21. Bernstein appealed the first commodity jurisdiction determination on September 22, 1993. That appeal is still pending.
Plaintiff seeks to publish and communicate his ideas on cryptography. Because "export" under the ITAR includes "disclosing . . . technical data to a foreign person, whether in the United States or abroad", Bernstein asserts that he is not free to teach the Snuffle algorithm, to disclose it at academic conferences, or to publish it in journals or online discussion groups without a license.
A motion to dismiss will be denied unless it appears that the plaintiff can prove no set of facts which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).; Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th Cir. 1986), cert. denied, 479 U.S. 1064, 93 L. Ed. 2d 998, 107 S. Ct. 949 (1987). All material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Although the court is generally confined to consideration of the allegations in the pleadings, when the complaint is accompanied by attached documents, such documents are deemed part of the complaint and may be considered in evaluating the merits of a Rule 12(b)(6) motion. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.). cert. denied sub. nom. Wyoming Community Dev. Auth. v. Durning, 484 U.S. 944, 98 L. Ed. 2d 358, 108 S. Ct. 330 (1987).
Plaintiff makes a number of allegations of unconstitutionality with respect to the AECA and ITAR. Specifically, plaintiff alleges that the act and accompanying regulations, both facially and as applied, are a content-based infringement on speech, act as an unconstitutional prior restraint on speech, are vague and overbroad, and infringe the rights of association and equal protection. Bernstein also alleges that the CJ request and registration processes as well as the licensing procedures are unconstitutional, although he does not state the basis of their unconstitutionality. Finally, plaintiff alleges that the actions of defendants are arbitrary and capricious and constitute an abuse of discretion under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. Defendants move to dismiss on the grounds that these issues are nonjusticiable.
The AECA plainly states:
The designation by the President (or by an official to whom the President's functions under subsection (a) of this section have been duly delegated), in regulations issued under this section, of items as defense articles or defense services for purposes of this section shall not be subject to judicial review.
22 U.S.C. § 2778(h). Defendants conclude that this language, as well as the Constitution, precludes review of commodity jurisdiction determinations by this court. Plaintiff does not dispute this assessment.
Defendants characterize this action as an attempt to obtain judicial review of their CJ determinations to place plaintiff's cryptographic items on the USML; as such, they maintain the action is precluded. However, this characterization does not comport with either the complaint itself or plaintiff's repeated assertions that he is not seeking judicial review of defendants' CJ decision, but of the constitutionality of the statute and its regulations.
It is well established under the political question doctrine that courts do not have the expertise to examine sensitive political questions reserved for the other branches of government. See Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962). More to the point, as defendants note, the determination of whether an item should be on the USML "possesses nearly every trait that the Supreme Court has enumerated traditionally renders a question 'political.'" United States v. Martinez, 904 F.2d 601, 602 (11th Cir. 1990) (finding the CJ determination nonjusticiable without deciding if the then recent amendment to the AECA precluding judicial review applied to that case). However, a review of a particular CJ decision is a distinctly different question from a constitutional challenge to a statute. In Martinez, the Eleventh Circuit noted that defendants had not alleged a constitutional violation.
904 F.2d at 603.
With respect to constitutional questions, the judicial branch not only possesses the requisite expertise to adjudicate these issues, it is also the best and final interpreter of them. Furthermore, as plaintiff points out, federal courts have consistently addressed constitutional issues in the context of national security concerns. See, e.g., New York Times Co. v. United States, 403 U.S. 713, 29 L. Ed. 2d 822, 91 S. Ct. 2140 (1971); Haig v. Agee, 453 U.S. 280, 69 L. Ed. 2d 640, 101 S. Ct. 2766 (1981). Because the issues before this court do not necessitate a factual inquiry into the CJ determination, but a legal one into broader constitutional claims, the question is whether the statutory preclusion of judicial review of CJ decisions also embraces this court's review of the statute's constitutionality.
Defendants cite a number of Ninth Circuit cases that reject the reviewability of commodity designations under the analogous Export Administration Act, 50 U.S.C. App. §§ 2401 et seq., administered by the Commerce Department. Because this court is not reviewing the CJ determination itself, those cases miss the mark. Of those cases, however, United States v. Bozarov, 974 F.2d 1037 (9th Cir. 1992), cert. denied, 507 U.S. 917, 122 L. Ed. 2d 668, 113 S. Ct. 1273 (1993), is instructive.
In Bozarov the defendant was charged with exporting items on the Commerce Control List ("CCL")--which is akin to the USML--without a license in violation of the statute. The items, which were computer disk manufacturing equipment, had been listed on the CCL for national security reasons. Bozarov challenged the constitutionality of the Act's preclusion of judicial review. In upholding the preclusion of review, however, the court noted its decision was "bolstered by the fact that certain limited types of judicial review are available under the EAA despite the Act's seemingly absolute preclusion of review. First, colorable constitutional claims may be reviewed by the courts even when a statute otherwise precludes judicial review." Id. at 1044 (citing Webster v. Doe, 486 U.S. 592, 602-05, 100 L. Ed. 2d 632, 108 S. Ct. 2047 (1988)). In fact, in order to reach the question of whether it was constitutional to preclude judicial review, the Ninth Circuit had to first find the issue justiciable. There, even the government conceded that Bozarov's nondelegation challenge amounted to a colorable constitutional claim. 974 F.2d at 1044 n.7.
More definitive still is the Supreme Court's decision in Webster, where it addressed whether employment decisions by the Director of the CIA were subject to judicial review. In Webster, plaintiff Doe was discharged from the CIA after informing the agency that he was a homosexual. He contested his termination partly on constitutional grounds. The Court held that the applicable statute bestowed so much discretion on the CIA Director in terminating employees that judicial review of those decisions was precluded under section 701(a)(2) of the APA. However, the Court made clear that such a holding did not preclude review of constitutional claims, noting that
where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear. . . . We require this heightened showing in part to avoid the "serious constitutional question" that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.