[00:00:03] Speaker 00: Case number 15, Judge 5183, American Civil Liberties Union at L, Appellants v. Central Intelligence Agency at L. Ms. [00:00:11] Speaker 00: Shansi for the appellants, Mr. Pulliam for the appellees. [00:00:17] Speaker 03: Thanks. [00:00:17] Speaker 03: And before we proceed, I'll just announce for the parties that Judge Tatel will consider these cases based on the recording of their oral argument. [00:00:25] Speaker 02: Thank you, Your Honor. [00:00:26] Speaker 02: And good morning. [00:00:27] Speaker 02: May it please the court, Hina Shamsi for the appellants in this matter. [00:00:32] Speaker 02: Your Honours, as you know, the issue in this case is whether the agencies have met their burden of showing that the Senate Intelligence Committee or Sisi's final report of its investigation into the CIA's torture program is not an agency record subject to the Freedom of Information Act. [00:00:50] Speaker 02: To meet that burden under this Court's case law, the agencies need to show that the Sisi clearly asserted control over the final report. [00:00:58] Speaker 02: I think it's helpful to divide the evidence in this case into two time periods. [00:01:03] Speaker 02: The first is the period during which the CICI conducted its investigation and was concerned about the confidentiality of its work product. [00:01:11] Speaker 02: And the second period was after the investigation CICI's report was complete and those concerns fell away. [00:01:18] Speaker 02: In the first period, the reason the CICI was concerned about the confidentiality of its work product was because the CIA, the agency that the committee was overseeing, insisted that the CICI's document review and work product storage take place at the agency's facility and on its network drive. [00:01:37] Speaker 02: During this period, the agencies never obtained the final report that is at issue in this case. [00:01:45] Speaker 02: After the CICI's investigation and report were done, the CICI's concerns were different. [00:01:49] Speaker 02: And during that second period of time, when the agencies actually obtained the final report, then, as the CICI chairman's contemporary misinstructions show, the CICI's concern was that the agencies read the report, use it, [00:02:04] Speaker 02: use it as broadly as appropriate as they saw fit to ensure that the lessons it taught about torture and the CIA's lies and misrepresentations to Congress, to the courts, to the American public, and to the media never happened again. [00:02:20] Speaker 03: So can I ask you a conceptual question that's related to the account that you're giving us? [00:02:26] Speaker 03: which is that with respect to the initial period, including the 2009 correspondence that both the parties have discussed in the briefing, is it your view that the 2009 letter just by nature has no bearing on the question before us, or is it that we should look to what the 2009 letter says, and then when we look at what it says, we conclude based on [00:02:51] Speaker 03: your reading of it that it doesn't preclude the conclusion that these are agency records rather than congressional records? [00:02:58] Speaker 02: Your Honor, the 2009 letter is evidence in the case and our position is you look at the evidence in the case and some of the evidence is relevant, some of the evidence is not. [00:03:09] Speaker 02: And the 2009 letter is not relevant because as the face of the letter itself reflects, it concerns a negotiated agreement between the Sisi [00:03:21] Speaker 02: as well as the CIA, with regard to the CCID's work product at the CIA facility and on the CIA's network drive. [00:03:31] Speaker 04: So these documents remain congressional records in their entirety and disposition and control over these records, even after the completion of the committee's review lies exclusively with the committee? [00:03:43] Speaker 04: I don't know how the subsequent transmission, I guess that's really the heart of your theory, the subsequent transmission overrides that. [00:03:52] Speaker 04: That's a really tough burden to me. [00:03:55] Speaker 04: I don't see how, help yourself in trying to explain, help me understand how, but this condition is very clear, especially when you align it with the case law, which says if Congress has retained control, they've retained control. [00:04:11] Speaker 02: Well, Your Honor, a couple of points in response to that. [00:04:14] Speaker 02: By the very terms of the letter itself, it applies to documents that were in the reading room or on the CIA's network server. [00:04:21] Speaker 02: And that makes perfect sense. [00:04:23] Speaker 04: We just say it only refers to those documents. [00:04:26] Speaker 02: If you look at... I'm looking at it. [00:04:28] Speaker 02: Paragraph 6 on Joint Appendix 93 and 94, by its terms, the letter specifically refers, starting out with the first sentence, to any documents that are in the reading room and on the network server. [00:04:46] Speaker 02: The final report was never in that reading room, and it was never on the network server. [00:04:52] Speaker 04: I'm just not seeing the words that say, when we say documents, [00:04:58] Speaker 04: We're referring only to documents that are in the reading room as opposed to it's just understood. [00:05:05] Speaker 04: Some of the documents are going to be created in the reading room. [00:05:09] Speaker 04: If I'm not, I'm where the words I'm looking. [00:05:12] Speaker 04: I think the same thing you're looking at. [00:05:14] Speaker 04: What am I missing? [00:05:15] Speaker 02: If you start out with the beginning of the paragraph, any documents generated on the network drive, as well as any other notes. [00:05:23] Speaker 04: As well as any other notes. [00:05:25] Speaker 04: Absolutely. [00:05:26] Speaker 04: Documents, drafts, final recommendations, reports, other materials. [00:05:31] Speaker 02: Generated. [00:05:31] Speaker 04: Good. [00:05:33] Speaker 02: are the property of the committee and will be kept in the reading room solely for secure safekeeping and ease of reference. [00:05:43] Speaker 02: So we start out in the document with a reference to the documents that were in the reading room and on the server. [00:05:50] Speaker 03: That's one way to read it, but I guess another way to read it is... [00:05:54] Speaker 03: Because it refers to any other notes, documents, draft and final recommendations, reports or other materials, that language is capacious enough to encompass the final report. [00:06:04] Speaker 03: I know you'll say divorce from context, but then if we look at what comes immediately after it, [00:06:10] Speaker 03: Of course, there's a reference to the reading room, as you rightly emphasized. [00:06:14] Speaker 03: But one way to read it is to say, insofar as those documents are kept in the reading room, they're kept there solely for purposes of secure, safe, keeping, and ease of reference, but without detracting from the notion that there may be some such documents that don't come within the reading room, but that still are notes, documents, drafts, and final recommendations, as to which the language later, that Judge Edwards referred to, still apply. [00:06:40] Speaker 02: We think, Your Honor, the better reading of the paragraph as a whole in the context of why this document was entered into and agreed upon is that it refers only to documents that were actually in the reading room. [00:06:52] Speaker 02: It wouldn't make sense if you look at the last sentence of that very paragraph that the, sorry, the middle sentence of the paragraph on Joint Appendix 94, [00:07:06] Speaker 02: that the CIA will return the documents to the committee immediately upon request. [00:07:11] Speaker 02: So the document, this paragraph refers to these documents, these records in the reading room on the network drive. [00:07:21] Speaker 04: So it's a really hard read because the committee obviously is not going to create reports and all these other things in the reading room. [00:07:30] Speaker 04: They're going to create them wherever they want to create them. [00:07:32] Speaker 02: Certainly, Your Honor, and nothing in this... [00:07:36] Speaker 04: And they may, I didn't mean to interrupt, let me just finish my question. [00:07:39] Speaker 04: Some may be put in the reading room that everyone has agreed. [00:07:42] Speaker 04: You can keep them in the reading room for secure purposes. [00:07:45] Speaker 04: But that doesn't mean the committee has given up what it says. [00:07:48] Speaker 04: They're strictly congressional records in their entirety. [00:07:52] Speaker 04: And in their entirety refers to reports and other materials generated by the committee and staff. [00:07:57] Speaker 02: So Your Honour, we don't read this document as precluding Congress from asserting clear control over its own records. [00:08:05] Speaker 02: And in fact, it did that, again during this time period, in December 2012, with respect to the initial version of the report that was generated. [00:08:17] Speaker 02: when the CICI generated that initial version of the report, and I think that's how best to read it, of a piece during this time period when the committee is concerned about its work product, it specifically transmitted those records to the CIA, that report to the CIA, [00:08:35] Speaker 02: without any reference to the June 2009 document. [00:08:39] Speaker 02: Instead, there were specific instructions about who could access the document. [00:08:46] Speaker 02: And access and dissemination were restricted. [00:08:53] Speaker 03: But we still might look, before we skip ahead to that period, I'll dwell on this a little bit longer, which we still might look at the 2009 correspondence as [00:09:03] Speaker 03: as embodying an assumption or an understanding by the committee. [00:09:08] Speaker 03: And I'm particularly looking at the language that the sentence that Judge Edwards is focused on is these documents remain congressional records in their entirety and disposition and control of these records even after the completion of the committee's review lies exclusively with the committee. [00:09:23] Speaker 03: The reading, I think, that's asserted by the court below and by the government, and to which I'd like your response is that the documents that were just referred to, which may go to the reading room, even though they went to the reading room, they remain congressional records. [00:09:37] Speaker 03: But the fact that the committee uses the language remain congressional records could be seen to symbolize an understanding that, of course, these documents that we've described, reports, recommendations, and such, are congressional records. [00:09:51] Speaker 03: subject to our control, we being the committee. [00:09:55] Speaker 03: And even if they go to the reading room, they still remain congressional records. [00:09:59] Speaker 03: But what that tells you is that the assumption all along has been the documents that have been described are congressional records. [00:10:05] Speaker 03: The fact that they may go to the reading room doesn't detract from that understanding, but it solidifies the original assumption that they're congressional records. [00:10:13] Speaker 02: Your Honor, I think it would be, in order to respond to that question, I think it's important to, again, back up a little bit, which is to talk about what these records are and the records that the CICI is reviewing, including our CIA's materials, which the CIA is very concerned about the confidentiality of. [00:10:32] Speaker 02: And based on those records, the CIA may be generating work product. [00:10:36] Speaker 02: And with respect to that generation, which is what the first sentence in that paragraph refers to, the next sentence refers to these documents remain congressional records in their entirety. [00:10:50] Speaker 02: And I think that is a [00:10:52] Speaker 02: better reading of the record because that is more consistent with this court's case law. [00:10:58] Speaker 02: This court's case law requires that or this court's case law is skeptical about pre-existing agreements as the court said in United We Stand in referring to [00:11:11] Speaker 02: Holy Spirit, it looks to whether a document is referred to very specifically, and it also looks to contemporaneous evidence as the most probative evidence of congressional intent. [00:11:24] Speaker 02: And what we're talking about here is an agreement that was written in 2009, six years before the final report, which is the document that is disputed between the parties here, and the [00:11:40] Speaker 02: As we say, and I understand that there may be some concern or disagreement here, as we say, this final report was never on the system. [00:11:50] Speaker 02: And therefore, it was not covered by the June 2009 letter. [00:11:57] Speaker 02: But even if you were to disagree with us, even if you were to give credence to this 2009 letter, at best, what you're left with is uncertainty [00:12:10] Speaker 02: about whether the final document, the actual final document, is covered, and any kind of uncertainty under this court's case law redounds to our benefit. [00:12:19] Speaker 03: And so that gets back to the original question I asked, I think, which is that your argument means that no matter how we construe the 2009 letter, it still doesn't matter. [00:12:31] Speaker 03: That because of what happened at stage two in 2014, whatever we might think about the 2009 letter, the 2014 exchange trumps it. [00:12:40] Speaker 02: Yes, I would put it with a little bit more nuance, which is to say that the June 2009 letter is irrelevant. [00:12:46] Speaker 02: However you decide and what you think about what it's relevant might be, it is in fact superseded by the fact that Congress never clearly asserted control over the final report. [00:12:59] Speaker 02: And to the contrary, what the record shows is that the chair of the relevant committee told the agencies [00:13:06] Speaker 02: to use that report as broadly as appropriate and as they so fit. [00:13:10] Speaker 02: And that is consistent, Your Honor, again, with this court's case law. [00:13:18] Speaker 02: This court's case law has some clear rules. [00:13:21] Speaker 02: One is that the agency has to legitimately come into possession of the document for the congressional control question even to apply, and that comes from tax analysts. [00:13:33] Speaker 02: It's also consistent with how this court construed tax analysts, the Supreme Court's decision in judicial watch, as well as United We Stand. [00:13:41] Speaker 02: And the agencies legitimately came into possession of the disputed document in December 2014. [00:13:48] Speaker 02: No one contests that. [00:13:51] Speaker 02: At that point, the question is, does Congress assert clear control over the document? [00:13:59] Speaker 04: Well, the other way to look at it is, did Congress see the clear control that they already had? [00:14:06] Speaker 04: I mean, there's another reading, and I guess [00:14:10] Speaker 04: The other way to look at your argument is if I disagree with you about an ambiguity, then you're in trouble, right? [00:14:15] Speaker 04: If I don't read the nine documents as being ambiguous, I think, quite honestly, so you know, [00:14:21] Speaker 04: What I'm struggling with, I don't think that document is terribly ambiguous. [00:14:24] Speaker 04: I think you're straining very hard to hook it to network, which to me doesn't make a whole lot of sense. [00:14:30] Speaker 04: To read it that way is a real strain. [00:14:33] Speaker 04: So the way I'm looking at the case, if you want to respond, is the question is whether Congress gave up the absolutely clear authority that they had. [00:14:42] Speaker 04: over anything produced. [00:14:44] Speaker 04: And I don't, at least facially, the 14 document doesn't look like they gave up the control that they had. [00:14:53] Speaker 02: I understand, Your Honor. [00:14:53] Speaker 02: If I may respond to that with a couple of responses. [00:14:57] Speaker 02: One is this court's case law is clear in saying that the relevant test is whether Congress has asserted control. [00:15:05] Speaker 04: And I'm saying my presumption is they asserted it in line. [00:15:09] Speaker 04: They hadn't. [00:15:11] Speaker 04: And it doesn't matter how many years pass, to me anyway, if you either have ownership of something or not. [00:15:18] Speaker 04: The question is, if you have it, did you give it up somewhere? [00:15:22] Speaker 02: Right. [00:15:22] Speaker 02: And Your Honor, again, I would point you back to this Court's own case law. [00:15:26] Speaker 02: So taking your point that you're interpreting the June 2009 document to apply to the December 2014 final report. [00:15:38] Speaker 02: What this Court has said very specifically in 2004 in United We Stand and also in Holy Spirit [00:15:44] Speaker 02: is that documents over which Congress once asserted control may lose their exclusion from FOIA if Congress fails to express its intent with respect to that specific document with sufficient clarity. [00:15:59] Speaker 02: And between the June 2009 letter, Your Honor, Judge Edwards, between that, there are multiple other [00:16:09] Speaker 02: periods of time in which Congress could have, but did not, clearly assert control with respect to the final report. [00:16:19] Speaker 02: And our position is, and I understand Judge Edwards, where your concern rises, our position is that in accordance with this court's case law, Congress actually has to clearly assert control. [00:16:32] Speaker 02: And the reason for that is that that is how this court gives both deference [00:16:38] Speaker 02: the congressional concern over oversight, as well as secrecy of its own methods, as well as balancing the full Congress's board mandate under the Freedom of Information Act. [00:16:50] Speaker 02: And that comes straight from United We Stand Again in 2004. [00:16:54] Speaker 02: The court has also signed it. [00:16:58] Speaker 03: In 2014, if the correspondence in 2014 had referred back to the 2009 letter explicitly, then [00:17:06] Speaker 03: You wouldn't take the position that that would be some sort of internal contradiction that can't be explained, right? [00:17:13] Speaker 03: It's just that they would have made something explicit that one might suppose would be implicit, only implicit, which I think you would say another case law wouldn't be enough. [00:17:22] Speaker 03: But I guess the question I'm asking is, would it have been internally inconsistent or somehow inexplicable for the correspondence in 2014 to explicitly be made subject to the understanding that underlaid 2009? [00:17:34] Speaker 02: I think that if the correspondence in 2014 had referred back to the June 2009 letter and said, what we're doing now is consistent with that June 2009 letter, this would be a much harder case, and we may not be here before you. [00:17:48] Speaker 02: But it did not. [00:17:49] Speaker 03: So then the question is, do we read that in? [00:17:53] Speaker 03: Or is that a necessarily implicit understanding? [00:17:56] Speaker 03: Does it always carry forward as something that informs subsequent correspondence? [00:17:59] Speaker 03: Those sorts of questions arise. [00:18:00] Speaker 02: I don't think you should read that in your honor, because that would turn this court's case law and precedent on congressional control on its head. [00:18:11] Speaker 02: It would have the court reading in an assertion of [00:18:17] Speaker 02: congressional control from silence. [00:18:19] Speaker 02: Right now, the record is silent with respect to assertion of control with respect to the final document, and silence does not equal control. [00:18:29] Speaker 03: At best... So at that point, your argument about would we read that understanding as carry forward would rely on our decisions, which of course I understand that point. [00:18:38] Speaker 03: There's one other point that I'd just like to hear your response on, which is [00:18:41] Speaker 03: The government suggests that the 2014 correspondence doesn't amount to much because it's the correspondence of an individual member. [00:18:49] Speaker 03: And there may be responses to that, but I'm curious as to what yours is. [00:18:53] Speaker 02: We don't agree with the government on that. [00:18:56] Speaker 02: And I think the way to think about what happened with respect to the December 2014 document is, again, to look at what's consistent with this court's case law. [00:19:07] Speaker 02: And the court's case law looks to what is contemporaneous congressional instruction at the time that a document is transmitted and comes into legitimate possession of the agency. [00:19:21] Speaker 02: So as of December 2014, there is no question that Senator Feinstein's transmittal letter is sent on behalf of the committee. [00:19:31] Speaker 02: There is no question that at any point during that particular time, which is what this court's case law looks to, under Paisley, under United We Stand, contemporaneous evidence consistent with around the time of the transmittal, [00:19:46] Speaker 02: At that point, and from 2012 leading up to that point, after the investigation was completed, the report was being drafted, at that point there is no assertion of control. [00:19:57] Speaker 02: And not only that, there is no objection by any member of the committee with respect to the legitimate transfer of control, the legitimate transfer of the document by Senator Feinstein to the agencies. [00:20:11] Speaker 02: And that's really what counts, Your Honor, which is [00:20:14] Speaker 02: Transfer has been legitimate. [00:20:17] Speaker 02: Look at the contemporaneous evidence at the time. [00:20:20] Speaker 02: And what is post-hoc in this case, the kind of post-hoc assertion that this court has refused to credit in Holy Spirit, Paisley, and subsequent cases, is what happens after the transmittal. [00:20:33] Speaker 02: And that is Senator Burr's request to call back the document. [00:20:40] Speaker 03: Thank you. [00:20:40] Speaker 02: Thank you, Your Honor. [00:21:07] Speaker 01: Good morning. [00:21:10] Speaker 01: Good morning. [00:21:11] Speaker 01: Thomas Poland for the government. [00:21:14] Speaker 01: I'd just like to pick up, start off with a, to follow up on a question that Judge Edwards posed, which is, [00:21:24] Speaker 01: that the correct view to, the correct way to view this case is that we have a clear assertion of congressional control in 2009 with the letter that the committee sent to the CIA. [00:21:36] Speaker 01: And the question is, is what happened afterwards enough to override the expression of intent in that letter? [00:21:45] Speaker 01: And we think it clearly is not. [00:21:51] Speaker 01: Following 2009, the committee consistently asserted its authority over the court. [00:21:56] Speaker 03: So before we go to whether whatever was asserted in 2009 was cut back on later, can we just focus on what happened in 2009, in fact, for a second? [00:22:05] Speaker 03: And I guess my question is a little different from what's been asked today on the following axis, which is that the critical language from your perspective, I think, is the clause that says, [00:22:18] Speaker 03: as well as any other notes, documents, drafts, and final recommendations, reports, or other materials generated by committee staff? [00:22:23] Speaker 03: Because your view is that, well, that tells us that this is an expansive understanding. [00:22:28] Speaker 03: It encompasses all reports, including, ultimately, the final report. [00:22:33] Speaker 03: And I guess my question is, is there a sense in which it's too broad in that it refers to any other notes, documents, drafts, and final recommendations, or other materials generated by committee staff or members? [00:22:45] Speaker 03: It's not even tied to this investigation. [00:22:47] Speaker 01: I believe it is tied to this investigation. [00:22:52] Speaker 01: If we look at the very first paragraphs of the letter, it starts off with the committee has an intention to conduct a thorough review of the CIA's detention and interrogation program. [00:23:08] Speaker 01: And then we skip to the second paragraph. [00:23:12] Speaker 01: We agree that the committee, including its staff, will conduct the study of the CIA's detention and interrogation program under the following procedures and understandings. [00:23:22] Speaker 01: So all of the terms that follow are specifically designated as the procedures and understandings that will govern the committee's study of this CIA program. [00:23:33] Speaker 01: So in this way, the pre-existing agreement is more like the agreement at issue in judicial watch, which the court said, you know, this is not a general expression of intent. [00:23:42] Speaker 01: This is specifically tied to the types of documents at issue. [00:23:48] Speaker 01: And it's unlike the letters that the court dismissed in Paisley as too general and sweeping, because in that case, they referred to all of the documents of the committee. [00:23:59] Speaker 01: And there was nothing to tie. [00:24:00] Speaker 03: So you agree that we would have to read [00:24:02] Speaker 03: the germane clause in paragraph six against the backdrop of the last sentence of the second paragraph. [00:24:11] Speaker 01: Yes, and that makes clear that these are the procedures and understandings that will govern the conduct of the study of this program. [00:24:19] Speaker 01: So the committee is specifically tying the language in paragraph six to this study. [00:24:26] Speaker 01: It's not saying this is our rule for everything. [00:24:29] Speaker 01: They're setting out specifically the rules for this [00:24:32] Speaker 01: the study. [00:24:33] Speaker 03: Now this correspondence is signed by the chairman and the vice chairman? [00:24:37] Speaker 03: Yes. [00:24:38] Speaker 03: And then the later one that we refer to is signed by the chairman? [00:24:41] Speaker 03: Yes. [00:24:42] Speaker 03: So what's the difference? [00:24:44] Speaker 03: I mean, I've read your briefs to be taking the position that we should discount the significance of the later one because it comes from one member. [00:24:51] Speaker 03: This one looks like it may come from two. [00:24:54] Speaker 03: Is there a meaningful difference there? [00:24:56] Speaker 03: Is there something else looking in the background that should inform? [00:24:58] Speaker 01: Well, I think there is a meaningful difference here. [00:25:01] Speaker 01: In 2009, we have the chairman and the vice chairman both signing on to these terms. [00:25:07] Speaker 01: There's no indication of any disagreement within the committee about what's set out here. [00:25:12] Speaker 01: And our point with respect to the December 2014 letter is that the views of a single senator may be a less reliable indicator of committee intent [00:25:24] Speaker 01: in circumstances where there's an indication that other members don't subscribe to that view. [00:25:32] Speaker 01: We have a Senator Burr, who's the chairman of the committee, as soon as he learns of the terms of the letter. [00:25:38] Speaker 01: So that happens subsequently. [00:25:40] Speaker 03: And there's arguments about whether that matters, since it happened at a point in time after this case arose. [00:25:46] Speaker 01: So at the very least, we say that there are positions that you may just want to exercise some caution in relying [00:25:52] Speaker 01: solely on the Senator's letter to the extent that it's not consistent with actions of the full committee. [00:26:02] Speaker 01: But here it really doesn't matter because the terms of that letter are entirely consistent with... I'm sorry. [00:26:12] Speaker 01: with the consistent exercise of control over the document that the committee has exercised. [00:26:20] Speaker 01: In 2012 and in April of 2014, the, I'm sorry. [00:26:25] Speaker 01: No problem. [00:26:37] Speaker 01: The committee provides the report to the CIA for certain internal uses, first to provide comments on the study in 2014 to conduct declassification. [00:26:50] Speaker 01: At both times, it [00:26:53] Speaker 01: expressly reserved the authority to decide whether and to what extent the results of the study would be made public. [00:27:00] Speaker 01: So in 2012, the letter transmitting the report to the committee, I'm sorry, to the CIA, it says that the committee will consider how to handle any public release in full or otherwise after we've considered the views. [00:27:13] Speaker 01: In 2014, the committee makes the decision as to how to handle the public release of the [00:27:21] Speaker 01: study, they vote to request declassification of the executive summary so that that can be released and press release accompanying that says that the full report will be held for declassification at a later time. [00:27:36] Speaker 01: Then we have December 2014 when the committee files [00:27:43] Speaker 01: the report with the Senate, they publicly release only the executive summary, and the chairman's foreword says decisions will be made later about the release of the full study. [00:27:54] Speaker 01: So all during this time, the committee is reserving authority to determine whether and to what extent to release the results of its study. [00:28:02] Speaker 01: The only uses that it's authorized are internal uses in the CIA, and Chairman Feinstein's letter in December 2014 is entirely consistent with that. [00:28:13] Speaker 01: She does encourage making the report available within the CIA and the executive branch. [00:28:22] Speaker 01: She says nothing about public disclosure there or release. [00:28:27] Speaker 01: And she encourages the use of the report for the formulation of training guidelines and procedures, again, internal uses. [00:28:36] Speaker 01: So when we look at the backdrop of events here starting in 2009, [00:28:40] Speaker 01: with a clear assertion that these documents will be under the control of the committee are not subject to FOIA. [00:28:46] Speaker 01: We moved to 2012 and 2014. [00:28:49] Speaker 01: The committee consistently asserts its authority over the document and reserves the authority to decide the scope of public release. [00:28:58] Speaker 03: From the government's perspective, I take it that the backdrop to understanding the 2014 correspondence is essential. [00:29:05] Speaker 03: In other words, [00:29:06] Speaker 03: If all we knew was the 2014 correspondence, and we view that in isolation, and it refers to use as you see fit, and et cetera, then you'd be, I think, in a different position. [00:29:18] Speaker 01: It would be considerably more difficult. [00:29:20] Speaker 04: When you're trying to square the December 10th, if you take the 2009 and December 10th correspondence, that's a more difficult case. [00:29:29] Speaker 04: You're saying there was the December 9th as well. [00:29:33] Speaker 01: I'm sorry, it would be a more difficult case if all we had were the December 2014 letter. [00:29:39] Speaker 04: Right, but what I'm saying, yeah, December 10th, wasn't there one on December 9th? [00:29:48] Speaker 04: No, well, there was, what we have are... Mr. Feinstein said the committee was not seeking to declassify in public who released the final report at that time, right? [00:29:58] Speaker 01: That, I believe, was in the forward to, the chairman's forward to the report itself. [00:30:03] Speaker 01: So that was part of the report that was filed with the Senate. [00:30:09] Speaker 01: The letter to the President is dated. [00:30:11] Speaker 04: And what day was that? [00:30:12] Speaker 04: Was it the 9th? [00:30:13] Speaker 01: That was December 10th. [00:30:16] Speaker 01: The Chairman's letter to the President, that's at J.A. [00:30:18] Speaker 01: 133. [00:30:22] Speaker 01: But to get back to Judge Srinivasan's question, this Court's cases clearly instruct us to look at all of the facts of the case and paying particular attention to the circumstances under which the report was generated and the circumstances under which it's transmitted. [00:30:39] Speaker 01: The 2014 letter here from the Chairman to the President [00:30:46] Speaker 01: could shed light at most only on the circumstances under which it's transmitted. [00:30:50] Speaker 01: It is not evidence of the circumstances under which the report was generated. [00:30:56] Speaker 01: So we really do need to look at 2009 to understand half of the tests that this court has set out for us. [00:31:03] Speaker 03: Yeah, you're right in the way you describe it. [00:31:07] Speaker 03: But of course, you could also have a situation in which the transmission trumps the generation. [00:31:11] Speaker 01: It could, it certainly could, but where you have the clear evidence at generation and then you have an absence of evidence at transmission, [00:31:23] Speaker 03: Then your view is that carries forward. [00:31:25] Speaker 01: Certainly. [00:31:25] Speaker 01: And Judicial Watch says so. [00:31:27] Speaker 01: In that case, we have an overarching agreement between the president and the Secret Service. [00:31:33] Speaker 01: And there's nothing at all that accompanies transmission of those actual documents. [00:31:39] Speaker 01: So we have literal silence. [00:31:41] Speaker 01: And the court did not hesitate at all to find that there was clear control over the documents at issue in that case. [00:31:50] Speaker 01: So if the court has no further questions, we'll ask that you affirm the judgment of the district court. [00:31:55] Speaker 03: OK. [00:31:55] Speaker 03: Thank you. [00:31:56] Speaker 03: Thank you. [00:32:11] Speaker 03: Ms. [00:32:12] Speaker 03: Chomsky, I believe we occupied your time, so we'll give you two minutes of rebuttal. [00:32:15] Speaker 02: Thank you, Judge Reneveston. [00:32:18] Speaker 02: I want to begin just by reiterating that it is the agency's burden to show a clear assertion of congressional control. [00:32:26] Speaker 02: We've discussed the June 2009 letter, but I think that that clear assertion of the Sisi's control is absolutely not reflected with respect to that final document at any point after the Sisi completes its work product. [00:32:44] Speaker 02: and starts generating actual reports that it starts sending to the agencies. [00:32:49] Speaker 02: I want to emphasise one thing which may have been left unclear by Council's argument, which is that reservation of authority does not assert [00:33:00] Speaker 02: does not constitute an assertion of control because this court's case law in giving deference to Congress while also balancing the requirements of the FOIA requires a clear assertion and reservation or silence does not constitute that. [00:33:16] Speaker 02: There was no clear assertion of control. [00:33:18] Speaker 02: To the contrary, when Senator Feinstein, acting as chair of the committee, transmitted the versions of the report in April 2014 and again the final report in December 2014, which is the document that we seek, [00:33:33] Speaker 02: that control, vis-à-vis the agency, not vis-à-vis the public, because again, that's not what this court's case law looks to, vis-à-vis the agency, was transferred with broad language, use as you see fit, disseminate as you want, put into effect congressional intent to make sure the torture and the lies never happen again. [00:33:53] Speaker 02: And that, I think, is what is most consistent with the case law in accordance with the requirements [00:33:59] Speaker 02: or the preference for contemporaneous evidence, for the skepticism of pre-existing agreements, and should there be any doubt in the court's mind with what the case law says, which is that that doubt should redound to the FOIA requester's benefit. [00:34:20] Speaker 02: Thank you, Your Honour. [00:34:21] Speaker 03: Thank you, Council. [00:34:22] Speaker 03: The case is submitted.