http://formerspook.blogspot.com/2008/09/tale-of-three-security-cases.html

My concern here is that combining these DDTC “certifications” and a weakened scienter requirement can turn DDTC into a star chamber that can send someone to jail without adequate process other than a trial on the usually non-controversial question of whether an export occurred or not.

The Bryan case, interpreting the definition of “willfully” in a firearms statute that was worded differently from the AECA, held that the government did not have to prove that the defendant knew about regulations he supposedly violated but only had to prove that the defendant violated a “known legal duty”. The language of the AECA, 2778(c), is quite specific: The government must prove”willfully violates any provision of this section or section 2779 of this title, or any rule or regulation issued under either section”. By focussing only on the definition of the term willfully, the government diverts the attention of the court away from the construction of the rest of the statutory expression. Its the old three-card monte approach to legal argument.

The government’s assertion that post facto classification determinations are non-reviewable political questions is truly dangerous stuff, which, if allowed to stand, allows DDTC to deprive the judge and jury of the power to decide an essential element of the crime, to wit, whether a particular thing was on the USML. In other words, DDTC can certify that any widget is a defense article or BIS can certify that any gadget is in a controlled ECCN, even when that pre-trial certification contradicts earlier classifications, and you can’t challenge it, even if its clearly wrong. This means that folks like me who self-classify things everyday are at risk and have no real hope of defense if some one at DDTC takes a dislike to us for any or no reason and decides to get even by issuing a classification determination that is wrong.

DoJ’s position is clearly wrong. AECA 2778(h) only excludes from judicial review the rulemaking by which DDTC adds generic classes of things to the USML, not the individual adjudication (licensing is part of adjudication in APA parlance) of whether a specific thing is described by the USML, and there is no similar language in the late EAA or in IEEPA. The political question doctrine was never meant to extend to classic legal determinations such as classification of items, which the CIT does everyday with respect to the HTS (itself a product of an international treaty). I suspect that DoJ is trying use the political question theory to trump the application of US v Mead, which held that Customs classification determinations are not subject to Chevron deference, to export classifications. The Supreme Court applied US v. Mead to the Attorney General’s determination that assisted suicide was not an acceptable medical practice in Gonzales v. Oregon, so Mead is of precedential value in administrative law beyond just Customs law, and I would suggest Mead undermines the lower court case law that accept the classification as political question theory (e.g., U.S. v. Alavi, USDC Arizona).