Why NSA is afraid that ITARs will be thrown out in court

At 4:45 AM 3/26/96, jamesd@echeque.com wrote:
>At 12:23 PM 3/25/96 -0800, Timothy C. May wrote:
>> Besides, I think the best way to overturn the
>> ITARs is through a court challenge; as I have noted, even the NSA's lawyers
>> felt that the ITARs would not withstand court scrutiny.
>
>Note that the spooks have carefully avoided a full bore court
>showdown.  They harassed Phil until the statute of limitations
>caught up with them, but never brought it to trial.  If we had
>no further legislation, and the courts broke ITAR, we would
>be home free.  No plausible legislation could give us that.

Someone said he had missed my reference to this, and wanted to know more.
So, I'll also pass it on here again.

In the summer of 1994 I got a call from Carl Nicolai, the inventor of the
"PhasorPhone," an audio-scrambling phone that was suppressed with a Patent
Secrecy Order (ordered by the NSA). This was around 1980-81, and is covered
in Bamford. He told me a bunch of things, including this:

Carl and his lawyer got access to papers inside the NSA building, though
they could not make copies. They found memos from NSA staffers saying that
the ITARs had never been tested in court and would not likely survive a
full Constitutional test and that it would thus be best if court cases were
avoided.

I passed this information along (if memory serves) to Lee Tien,
representing Gilmore in various cases, and to Phil Karn. (One of them, I
don't recall which, posted a message a while later saying that such
documents had been found....I don't recall the details, but this was
probably around fall of 1994.)

Whether this NSA paranoia has anything to do with the final decision on the
Zimmermann et. al. matter is unclear, but it is likely that a very strong
challenge to the ITARs--maybe the appeal by Phil Karn is such a challenge,
maybe the Bernstein case--will result in big chunks of the ITARs being
thrown out.

--Tim May

Boycott "Big Brother Inside" software!
We got computers, we're tapping phone lines, we know that that ain't allowed.
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^756839 - 1  | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

TCM
>Whether this NSA paranoia has anything to do with the final decision on the
>Zimmermann et. al. matter is unclear, but it is likely that a very strong
>challenge to the ITARs--maybe the appeal by Phil Karn is such a challenge,
>maybe the Bernstein case--will result in big chunks of the ITARs being
>thrown out.

regarding these discussions about challenging the ITAR, I think it
would have to be done by some really daring lawyers. there are some
precedents for judges slapping secrecy orders on various aspects of
the trial whenever the NSA is involved-- just another way the NSA
loves to manipulate our government system via a technique that might
be called "shadow puppetry" <g>

the case then dies a slow painful death of attrition in the dark.

anyway, one would have to somehow intersect with a judge that
is not easily intimiated by "national security" issues. I am dead
serious- -the first thing NSA or "intelligence agency" lawyers do
is try to impress the judge that this is an unusual case that
requires strict secrecy in the interests of national security.

 having brave
lawyers might mean they are willing to defy secrecy orders about the
trial to publicize it in the open to win public attention and support.
 I think this would be difficult. but one has to try.

there is a simple formula to fighting the NSA and their horrible
tactics: disclosure can be a powerful weapon in our favor. the
NSA will usually back down from a confrontation instead of escalating
it. public exposure is their absolute worst nightmare. there are
a lot of spooks in the NSA who cringe every time those initials are
used. well,

NSA NSA NSA NSA NSA NSA NSA NSA!!!

(maybe I can actually get a few of them to have heart attacks by saying
that)

again, I continue to believe that the main problem with the NSA/ITAR
is not so much that either exists, but that everyone in our country
is following both as if they are the rule of law.

you get more of what you roll over for.