April 28, 1995 Mr. Thomas E. McNamara Assistant Secretary Bureau of Political-Military Affairs Room 7325A Department of State Washington, DC 20520Dear Mr. McNamara:
On December 5, 1994, we wrote on behalf of our client, Mr. Philip R. Karn, Jr. of San Diego, California, to appeal the adverse determination by Deputy Assistant Secretary Martha C. Harris with regard to Mr. Karn's appeal of an determination by the State Department's Office of Defense Trade Controls ("ODTC") in CJ case 081-94. On February 28, 1995, we met with you and representatives of the Department of Justice and the National Security Agency, to provide additional information and explain our position. We have not heard anything more about this appeal since that meeting.
All relevant facts are known to the Department and to the interested agencies. While all of us recognize the importance of the issues raised in this case, the issues are neither complex nor analytically difficult. As you know, it has appeared to us and to other observers that the licensing delays that Mr. Karn and others who seek licenses relating to cryptographic materials have experienced fit a pattern of procrastination by federal agencies which appears to be based on the publicly stated policy of the National Security Agency to attempt to deter the further spread of strong cryptography as much as they can, notwithstanding the fact that the technology at stake is already widely available, as documented in our appeal. In short, it continues to appear that NSA is using the tactics of delay and decision-avoidance in an effort to continue to chill the First Amendment activities of Mr. Karn and others interested in cryptography.
Mr. Karn has patiently attempted to comply with established procedures throughout this matter. His initial request for a Commodity Jurisdiction determination was filed on March 9, 1994, and was denied by ODTC on May 12, 1994. That adverse decision was appealed to Dr. Harris on June 7, 1994. Dr. Harris affirmed the adverse decision on October 7, 1994. The issues involved had been pending before your department since Mr. Karn filed his 1993 request for a commodity jurisdiction determination on the book, Applied Cryptography. In short, the Executive Branch has had the issue in this case before it for over a year. We have repeatedly been assured that the matter is receiving "high-level attention" and has generated significant inter-agency discussion.
The continued delay in rendering a decision in this matter is inexplicable except on the assumption that the Executive Branch intends, by its inaction, to chill the activities of Mr. Karn and others. As you know from our earlier submission, the chilling effects of this system of prior restrains lies at the heart of the constitutional difficulties of the ITAR regime that have been previously identified by the Department of Justice.
Please be advised that while we would prefer to obtain a decision on our appeal from your office, we will not continue to wait for an event that apparently will not occur. Mr. Karn has requested that we seek judicial review of this matter not later than June 15, 1995, whether or not your decision has been issued. We will take such action, unless, of course, you render a favorable decision before that time.
Cordially, Kenneth C. Bass, III Thomas J. Cooper cc: Phil Karn