[00:00:00] Speaker 02:
15-5217, American Civil Liberties Union at L, Appellant vs. United States Department of Justice at L. Mr. Jaffar for the Appellant, Ms.

[00:00:09] Speaker 02:
Wingel for the Appellees.

[00:00:41] Speaker 06:
Good morning, Your Honors, and may it please the Court.

[00:00:43] Speaker 06:
I'm Jamil Jaffer for the appellants.

[00:00:45] Speaker 03:
Morning.

[00:00:46] Speaker 06:
Morning.

[00:00:46] Speaker 06:
As you know, Your Honors, this case involves a six-year-old FOIA request for records concerning the government's drone program.

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The Court rejected the CIA's global response in 2013.

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Since then, three important things have happened.

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First, senior officials, including the President, have continued to speak publicly about drone strikes and about the purported legal basis for them.

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Second, another appeals court, the Second Circuit, has held that the CIA has acknowledged an operational interest in drone strikes and it has ordered the government to publish certain of its legal analysis.

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And thorough plaintiffs have substantially narrowed the FOIA request at issue here to focus on only two categories of records, legal memos and what we're calling summary strike data.

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As we explained in our briefs, the District Court abused its discretion in declining to review those two categories of records in camera.

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But even if the District Court did not abuse its discretion, there are compelling reasons why this Court should now review both the CIA's classified declaration and at least a sample of the records in camera for itself.

[00:01:57] Speaker 04:
See, but on that argument, actually on both of your arguments about official disclosure and the need to review – our obligation to review the underlying documents, you know, our case law – our case law just seems contrary to that.

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You know, it – our cases are pretty clear that in national security areas

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If the affidavit demonstrates that the information logically falls within the classification and is not contradicted by any contrary evidence, we aren't supposed to look at the underlying documents.

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That's what our case law says.

[00:02:39] Speaker 04:
I'm actually pretty curious about some of these, but our case law says we aren't supposed to do it.

[00:02:45] Speaker 04:
In fact, one of them says we shouldn't do it, quote, just to make sure.

[00:02:51] Speaker 04:
So let's start with that.

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That's this circuit's law.

[00:02:56] Speaker 06:
Well, Judge Tabel, I share your curiosity about those cases.

[00:02:59] Speaker 06:
Yeah, OK.

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But we're not taking on that case law here.

[00:03:03] Speaker 04:
But let me just ask you a very specific question, OK?

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OK.

[00:03:08] Speaker 04:
I've looked at the government's affidavit, its classified affidavit.

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We're not going to talk about it today, but I've looked at it.

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Now, if I think having looked at it,

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that that, and I'm quoting here, logically falls within the exemption and is not contradicted.

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Or there's any agency, but if I look at the evidence and reach that conclusion,

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What's the basis for this court looking further and actually getting the documents?

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That's the question.

[00:03:43] Speaker 06:
Well, Judge Tatel, I think that this is not just an unusual case, but arguably a unique case for a number of different reasons.

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One is that this court has already rejected some of the CIA's representations in this case as illogical and implausible.

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OK, but that was only on the question of acknowledgment.

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That doesn't relate to the documents.

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That's a different question.

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That's true.

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It's a different question.

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But the point is that the CIA's representations turned out not to be well-founded.

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That's the only point I'm trying to make.

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And I think that that's just a fair description of the court's previous ruling.

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And then if you look at the Second Circuit's ruling, which came after this court's May of 2013 ruling, the Second Circuit found essentially the same thing.

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But they have a different standard, too.

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This brings me back to circuit law.

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We have to act within these standards.

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The Second Circuit seems to have a much more forgiving standard.

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Our case law says the disclosed materials has to match.

[00:04:50] Speaker 06:
Well, that's unofficial acknowledgment, Your Honor.

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I thought that's what you were going on to.

[00:04:53] Speaker 06:
No, no, I'm just talking about the circumstances in which an appeals court or a district court should look at the documents in camera.

[00:05:02] Speaker 04:
Oh, so your theory is because another circuit looked at it and found some problems that that's enough for us to look at it.

[00:05:08] Speaker 06:
It may not be enough in itself, but that put together with this court's previous ruling, add to that the fact that the government continues to talk publicly about the very subject matters that are addressed in these documents, add to that the public interest in the records, which I think is extraordinary in this case.

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I think all of those are good reasons why this court ought to look at it under law.

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Generally speaking, about the same subject matter is not enough to constitute an official disclosure, is it, counsel?

[00:05:34] Speaker 06:
No, you're absolutely right, Judge Santso.

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That's not the argument I'm making.

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I'm making an argument about the circumstances in which a court should look at the documents itself.

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I'm not making an argument about official acknowledgement.

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I'm just arguing.

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How does that fact that there has been public discussion of the general subject matter change of the circuit law which the presiding judge is referring?

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We're still not supposed to look at it if the affidavit appears to be enough on its face, are we?

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No, I don't think that's a fair reading of this circuit's law.

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I don't think that this circuit has been that categorically, has categorically ruled out a court.

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There's a question of when the government...

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to be sufficient and yet still went and looked at documents.

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Well there's certainly multiple cases in which this court has found or at least the district courts have found evidence of bad faith and on that basis looked at the affidavit and this court has made clear that in those circumstances looking at sorry looking at the documents is justified.

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Wait but we I think we're confusing two different issues and maybe I was responsible for it by jumping into official acknowledgement but aren't there two steps to this?

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Step one is

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We look at the affidavit, the classified affidavit, and if we think it's sufficiently precise and convincing, then under the circuit law we don't go any further.

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Then there's a second question, which is even if it is properly

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So let's keep them separate for purposes of argument.

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So the fact that something might have been

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according to your theory, officially disclosed does not affect the first question.

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Correct?

[00:07:26] Speaker 06:
Well, that's right.

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I think the first question precedes the second part.

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So let me go back to my question then.

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I've looked at the affidavit, and I'm starting to sense with an if, because I'm not telling you what I think.

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But if I think that it meets the standard, that is, that it logically falls within the exemption and there's no bad faith in there, then

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What's the basis for the court looking further?

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This is not official acknowledgment, but this question.

[00:07:59] Speaker 06:
No, I understand the question, Judge Sable.

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And my answer, I'm sorry, will repeat some of what you said already.

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But I think that the circumstances presented here are very different than the circumstances that were presented in all of the cases the government is relying on.

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Here we have a situation where this court has already found that some of the CIA's representations in this case were unfounded.

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The Second Circuit found the same thing.

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And it bears emphasis, Judge Tatel, that in the Second Circuit, the government said precisely what it's saying here, that nothing could be segregated from the classified information.

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And when the Second Circuit looked at the underlying documents, it found to the contrary.

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So how do those facts affect the test we're supposed to apply?

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Does that mean that they don't logically fall within the exemption?

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Or does it mean that the government's acting in bad faith?

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Because those are the questions we're supposed to ask when we're looking at the classified affidavit, right?

[00:08:50] Speaker 05:
As far as I know, we're not supposed to be looking at these other factors, like the Second Circuit did with it, or what a previous court did.

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As I understand it, and maybe I'll correct me on it, as I understand it, we're looking at the classified affidavit.

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If we believe, as a result of that, that the material logically falls within the exemption and that there's no bad faith, our case law tells us no in-camera review of that document.

[00:09:18] Speaker 06:
Now... I don't think that's right.

[00:09:21] Speaker 06:
So first, I think it's important.

[00:09:23] Speaker 06:
Well, you don't think it's right.

[00:09:24] Speaker 02:
I don't think that the case... I'm sure I understand your premise here.

[00:09:27] Speaker 06:
I don't think that the case law precludes this court or precluded the district court from looking at the documents.

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The case law addresses the circumstances when it's an abuse of discretion not to look at the documents.

[00:09:40] Speaker 06:
But that question of whether it's an abuse of discretion is different from the one I'm addressing now.

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Because my argument is that even if it wasn't an abuse of discretion for the district court not to look at the underlying documents, it's entirely open to this court to look at the underlying documents.

[00:09:56] Speaker 06:
And some of this court's cases actually suggested it should.

[00:09:58] Speaker 03:
That's not what our cases say.

[00:10:00] Speaker 03:
Which case are you quoting?

[00:10:03] Speaker 03:
Tell me a case that says that.

[00:10:03] Speaker 06:
Well, the cases that the government is citing are all cases involving a situation where the question was whether the district court abused its discretion in failing to look.

[00:10:12] Speaker 05:
But what's the case that cites your proposition that we can, in the face of a district court decision, not to look at the documents?

[00:10:19] Speaker 05:
And if we read the classified affidavit and conclude that the material logically falls within the exemption, it's not in bad faith, what's the case that says under those circumstances we can nevertheless look at the document in camera?

[00:10:35] Speaker 05:
That's what I'm looking at.

[00:10:36] Speaker 06:
Right, so one answer to that, and I recognize the incompleteness of this answer, is that the Second Circuit did precisely that in New York Times versus DOJ, right?

[00:10:48] Speaker 06:
I'm looking for our case.

[00:10:51] Speaker 05:
We all do respect to the Second Circuit.

[00:10:53] Speaker 02:
Just forget about the Second Circuit.

[00:10:55] Speaker 02:
That's what I meant.

[00:10:59] Speaker 02:
You can forget the knife while you're editing.

[00:11:03] Speaker 06:
I don't think that even the government has argued here, and I certainly didn't see it in its brief, that this court doesn't have the authority to look at the underlying documents.

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The court has the authority to look at the underlying documents.

[00:11:14] Speaker 06:
The only thing that this court's case law says on this point is that the court has to give substantial weight, that's the phrase that the court uses over and over,

[00:11:23] Speaker 06:
substantial weight to the agency's declaration.

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And I think that that makes sense in the ordinary case, and maybe it makes sense here, too, to give substantial weight to the CIA's affidavit.

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But the CIA's affidavit isn't the only thing before the court.

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There are many other things that have happened in this case that are relevant to the question of whether the court should look at the underlying documents.

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So my argument is just that the court isn't foreclosed from looking at those documents.

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I don't think the government is arguing to the contrary.

[00:11:50] Speaker 05:
And I understand... But you don't know a case from our circuit where... Where the court actually did look at the underlying documents.

[00:11:58] Speaker 02:
I don't, Your Honor.

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I don't.

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The question of whether we're foreclosed is a different question than whether we're compelled.

[00:12:04] Speaker 02:
That's right, Your Honor.

[00:12:05] Speaker 02:
Are you saying we would be wrong not to look?

[00:12:08] Speaker 06:
I'm saying that there are compelling reasons to look and there is no jurisdictional or other bar to you are looking.

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If the agency has met its burden through an affidavit in camera review is neither necessary nor appropriate.

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That's a quote.

[00:12:27] Speaker 06:
PC Circuit.

[00:12:29] Speaker 04:
Neither necessary nor appropriate.

[00:12:34] Speaker 04:
That tells me we're not supposed to look at it.

[00:12:37] Speaker 04:
And as I understand our case law,

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You know, this is all sort of caught up in the principles enunciated by this court that when it comes to questions of national security, judges were supposed to be – were supposed to review this stuff – these materials deferentially and not second-guess it.

[00:12:55] Speaker 04:
And so our prior president has – seems to have limited the ability of the court

[00:13:02] Speaker 04:
to go beyond the government's assurances in a specific affidavit.

[00:13:07] Speaker 06:
Well, so, Your Honor, two points on that.

[00:13:09] Speaker 06:
The first is that I think the first half of the sentence you read is at least as important as the second half.

[00:13:13] Speaker 06:
When the agency has met its burden, I'm not sure if I'm quoting directly.

[00:13:15] Speaker 04:
But you see, my question was all – the question is all – every question I've asked you is linked to the very first one I asked you, which is assume that I've looked at it and found it sufficiently specific.

[00:13:29] Speaker 04:
to plausibly justify the argument that these documents are properly classified and examined.

[00:13:40] Speaker 04:
That's part of my hypothetical, OK?

[00:13:45] Speaker 04:
Then it says, and what you and I have been talking about is, well, under what circumstances can I go further and look at the documents?

[00:13:53] Speaker 04:
And this case says, I can't.

[00:13:59] Speaker 04:
So what I'm looking for from you is what other indicators might prompt us to take an affidavit that otherwise meets the standard and have a list of documents.

[00:14:14] Speaker 04:
Now, one of your arguments is, I get one of your arguments.

[00:14:17] Speaker 04:
Your argument, I gather, is that since this circuit and the Second Circuit have rejected

[00:14:25] Speaker 04:
agency arguments about some documents that that should make us a little more suspicious about the affidavit we've read, right?

[00:14:35] Speaker 06:
That's correct.

[00:14:35] Speaker 04:
That's one argument.

[00:14:37] Speaker 04:
Is there any other?

[00:14:39] Speaker 06:
I'm, you know, our... Yes, Your Honor.

[00:14:43] Speaker 06:
The other argument is that the government has been speaking publicly about these topics.

[00:14:48] Speaker 05:
What about bad faith?

[00:14:49] Speaker 05:
I mean, if you're going to look at what we've said about this before, bad faith is an exception to it.

[00:14:53] Speaker 05:
But you're not alleging bad faith, are you?

[00:14:56] Speaker 06:
Well, I suppose if it's important to put that label on the argument I just made, if that makes a difference, then yes.

[00:15:01] Speaker 05:
Well, that's the language from our cases, and you're not using it, and I'm wondering why.

[00:15:04] Speaker 06:
Well, I didn't understand the cases to be saying that only in circumstances of bad faith is it appropriate or possible for the court to look at the underlying documents.

[00:15:16] Speaker 06:
And for that reason, we haven't packaged it in that way.

[00:15:20] Speaker 06:
OK.

[00:15:20] Speaker 06:
But the other thing I wanted to say in response to Judge Tatel's question is that the agency appears to have applied the wrong standard, even if you've read the affidavit, and the affidavit says, you know, we've looked at these documents and then

[00:15:37] Speaker 06:
None of them can be disclosed.

[00:15:39] Speaker 06:
The agency appears to have applied the wrong standard in two different respects.

[00:15:44] Speaker 06:
One is, on official acknowledgement, we think that they have applied a much more rigid standard than even this court has accepted in the past.

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And the second is that the government... In what respect?

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I mean, our standard is unbelievably strict.

[00:16:00] Speaker 04:
It says it must match.

[00:16:01] Speaker 06:
It does, Your Honor, but that test... Right, so that test comes out of Afshar, I think, initially.

[00:16:08] Speaker 06:
Fitzgibbon took it from Afshar, and Afshar uses the phrase, different in some material respects.

[00:16:14] Speaker 04:
You know, our later cases are much more specific than Afshar.

[00:16:17] Speaker 04:
They're much tighter.

[00:16:18] Speaker 04:
Those cases, our later cases are a lot tighter than that.

[00:16:22] Speaker 06:
Well, Your Honor, I think that the... They say it must be a match.

[00:16:27] Speaker 06:
But there's this question, what counts as a match?

[00:16:29] Speaker 06:
I mean, what if the period's in one place rather than another?

[00:16:31] Speaker 06:
I don't think this court would say, well, that's not a match.

[00:16:34] Speaker 06:
You need to have some governing principle to decide what counts as a match and what doesn't.

[00:16:38] Speaker 06:
And I think Afshar provides a governing principle.

[00:16:40] Speaker 06:
But I'm running out of time.

[00:16:41] Speaker 06:
I want to get out the other distinction or the other answer to your question, Judge Shale.

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And you would ask, you know, if you look at the affidavits and you find that the affidavits say that everything falls within the exemption.

[00:16:54] Speaker 06:
The other respect in which the government appears to have applied the wrong standard is that the government's theory seems to be that anything that pertains to, in some broad sense, sources and methods is withholdable under Exemption 1.

[00:17:07] Speaker 06:
And it's true that the executive order uses the phrase pertains to, but it's not our view that

[00:17:12] Speaker 06:
anything that touches on or relates to even remotely a sorcerer method is withholdable.

[00:17:19] Speaker 04:
Again, you run into this circuit's case law.

[00:17:21] Speaker 04:
We've said that that is, quote, not a demanding standard.

[00:17:24] Speaker 06:
Well, Your Honor, it may not be a demanding standard, but legal analysis that is not entwined with sources and methods, that can be disentangled from sources and methods, doesn't meet that standard.

[00:17:34] Speaker 04:
And even if it does... Well, you're assuming... I mean, you're working at disadvantage.

[00:17:39] Speaker 04:
You haven't seen the affidavit.

[00:17:40] Speaker 04:
But suppose the affidavit demonstrates convincingly that that's not the case.

[00:17:48] Speaker 06:
Well, it's hard to... It's hard to imagine how the affidavit could demonstrate that, given that the government seems to be... Well, just suppose it does.

[00:17:55] Speaker 06:
Well, I suppose if the affidavit demonstrates it so convincingly that the court is convinced that looking at the documents could not possibly change its mind, then I suppose that the court should rule for the government.

[00:18:07] Speaker 06:
But if it leaves any question whatsoever, and I would say any question whatsoever, the court should look at the underlying document.

[00:18:14] Speaker 04:
But again, you see, that's not what our case lawyer said.

[00:18:16] Speaker 04:
That's why I'm asking you all these questions, because in terms of our ability to look at the record, what official acknowledgement means, what the word pertain means, we have very clear circuit law on all this.

[00:18:31] Speaker 04:
And none of my questions are aimed at getting you to help me understand how your case can prevail under those standards.

[00:18:39] Speaker 06:
Your Honor, even if you accept the government's theory of pertains to, so that anything that even remotely touches on source or method can be withheld under that particular aspect of Exemption 1, you're still left with the question of harm, whether the disclosure of legal analysis that is not entwined

[00:19:00] Speaker 06:
with properly classified sources of methods.

[00:19:02] Speaker 04:
Let me ask you an unrelated one, maybe it's related.

[00:19:06] Speaker 04:
Is a drone strike an intelligence source or method?

[00:19:13] Speaker 06:
I don't think that the drone strike itself is an intelligence sorcerer method.

[00:19:17] Speaker 06:
I don't take the government to be arguing that.

[00:19:19] Speaker 06:
I take the government's argument to be that disclosing the kind of information we've asked for would tend to reveal, and I think they use that phrase in their public affidavit, tend to reveal sources and methods.

[00:19:30] Speaker 04:
But I read your brief as at least in principle agreeing with that, correct?

[00:19:36] Speaker 04:
in other words, that a particular drone strike, information about a particular drone strike, such as target, place, sources of information, could in fact reveal intelligence methods and sources.

[00:19:47] Speaker 06:
Well, I think it would depend on the information in question, but I think that the emphasis in our brief is not on that, but rather on the harm.

[00:19:54] Speaker 05:
And does the executive order speak more broadly than that?

[00:19:58] Speaker 05:
So that it's anything that pertains to

[00:20:01] Speaker 05:
intelligence activities and not just sources and methods?

[00:20:03] Speaker 05:
And if that's the case, don't the strikes pertain to intelligence activities?

[00:20:09] Speaker 06:
Judge Griffith, I don't want to get, I mean, I think we were left with the same question about the breadth of the phrase pertains to, but I don't want to get hung up on it because ultimately you're still left with the question of harm, right?

[00:20:18] Speaker 06:
Even if the government is correct that all of this falls into one of the classification categories, the government can withhold information under the executive order only if it can also show that disclosure would result in harm.

[00:20:30] Speaker 05:
So you're conceding, then, at least the first part of it?

[00:20:33] Speaker 05:
No, you're right.

[00:20:34] Speaker 06:
We're not conceding it.

[00:20:35] Speaker 05:
That the summary of strike activity, you say, does not pertain to intelligence activities?

[00:20:44] Speaker 06:
It would depend on the specific information question.

[00:20:50] Speaker 06:
And there's also this – you have to see all this against the background of the government's own disclosure.

[00:20:54] Speaker 05:
So whether it would disclose a –

[00:20:56] Speaker 05:
There are lots of layers of analysis right here.

[00:20:58] Speaker 05:
I'm just focusing on one, and that is whether the drone strikes pertain to... Right.

[00:21:06] Speaker 05:
That's the first step in a long inquiry, I guess.

[00:21:10] Speaker 06:
I think that we concede that if there hadn't been any disclosures at all and the government were just arguing about the pertains do wrong, yes.

[00:21:18] Speaker 02:
You have to, for the purposes of this, you have

[00:21:24] Speaker 02:
On that prong of the Egyptian White House, that's not the end of the inquiry, but that's the beginning of it.

[00:21:30] Speaker 04:
That's right.

[00:21:31] Speaker 04:
That's right.

[00:21:32] Speaker 04:
No.

[00:21:32] Speaker 04:
No.

[00:21:33] Speaker 04:
OK.

[00:21:33] Speaker 04:
Thank you.

[00:21:33] Speaker 04:
OK.

[00:21:34] Speaker 04:
Thank you.

[00:21:34] Speaker 04:
Any other from the government?

[00:21:38] Speaker 01:
Thank you, Your Honor.

[00:21:39] Speaker 01:
Sharon Swingle from the Department of Justice for the CIA.

[00:21:42] Speaker 04:
Can I start where we just left off here?

[00:21:43] Speaker 01:
I was just hoping to do that, Your Honor.

[00:21:45] Speaker 01:
And I want to point out, yes.

[00:21:47] Speaker 04:
What do you think my question was going to be?

[00:21:51] Speaker 01:
Well, I was going to start with Judge Griffiths, but I would like to start with yours, Judge Tatel, if you would.

[00:21:58] Speaker 01:
Your Honor correctly pointed out what is the government's position, which is that a drone strike would in fact be an intelligence activity.

[00:22:06] Speaker 01:
And I did not understand counsel to object to that.

[00:22:09] Speaker 01:
What I heard him say is that the court would have to decide nevertheless

[00:22:12] Speaker 01:
whether the government had shown a demonstrable or identifiable harm.

[00:22:16] Speaker 01:
But I want to be clear, the ACLU not only did not argue in district court that we had not made that showing, they explicitly declined to challenge that, and that's at plaintiff's opposition.

[00:22:28] Speaker 01:
It's ECF 69, page 25, note 31.

[00:22:32] Speaker 01:
So I think that in itself resolves the question.

[00:22:37] Speaker 04:
How can a simple fact

[00:22:39] Speaker 04:
of a drone, how can a drone strike to kill a particular person be an intelligence activity?

[00:22:46] Speaker 04:
That sounds like military to me.

[00:22:48] Speaker 01:
Well, and to the extent it's not an intelligence activity, to be clear, Judge Tatel, we also invoked 1.4D.

[00:22:55] Speaker 04:
I got your back.

[00:22:56] Speaker 04:
I understand your argument that just to reveal it would reveal intelligence methods, right?

[00:23:00] Speaker 04:
I think that's right.

[00:23:01] Speaker 04:
But is an actual drone strike used to kill a person?

[00:23:07] Speaker 04:
in and of itself an intelligence activity?

[00:23:10] Speaker 01:
Our position is that, yes, it is, and that process discloses information.

[00:23:14] Speaker 05:
I thought your argument was that it pertains to intelligence activities.

[00:23:17] Speaker 01:
So I think we have several arguments in response.

[00:23:20] Speaker 01:
Is one of them what Judge Griffiths just said?

[00:23:22] Speaker 01:
One of them is that it pertains to intelligence activities.

[00:23:26] Speaker 04:
You mean because the CIA used intelligence to identify the target?

[00:23:31] Speaker 01:
Because the question of who the intended target is, who was actually killed, what their status is, the identity of the agency doing it, the location of the strike, the date, this all reveals very sensitive- The information reporting what they know after the strike and what they knew before the strike.

[00:23:48] Speaker 01:
Exactly, Your Honor.

[00:23:49] Speaker 01:
And how that might change over time.

[00:23:51] Speaker 02:
I mean, I think it's- I think I have to be a little skeptical saying

[00:23:59] Speaker 01:
Well, I do think even if it isn't an intelligence activity, it is a foreign activity.

[00:24:05] Speaker 01:
But in any event, you're right.

[00:24:06] Speaker 01:
In our view, it pertains to because it concerns or relates to intelligence activities, sources, and methods.

[00:24:14] Speaker 01:
And so it would nevertheless be covered.

[00:24:15] Speaker 01:
And I think this court's prior decisions have essentially accepted that broader view of what the classification authority is.

[00:24:23] Speaker 01:
There are multiple cases that uphold the withholding of information under Exemption 1, where it's

[00:24:29] Speaker 01:
disclosure would tend to reveal or would reasonably tend to reveal intelligence sources and methods, so I think that's foreclosed by this court's precedent.

[00:24:39] Speaker 01:
In the main, I think the ACLU's argument here is that because the government has, over the course of time, made voluntary disclosures of previously classified information,

[00:24:50] Speaker 01:
in order to increase public transparency and knowledge of what is obviously a controversial program that somehow different legal standards should apply here.

[00:25:00] Speaker 04:
And with all due respect... No, no, I think we sorted that out.

[00:25:03] Speaker 04:
I don't think they're arguing that.

[00:25:05] Speaker 04:
I think they're arguing... I don't want to put words in their mouth, but I think... I thought we sorted that out, that there's two separate questions.

[00:25:13] Speaker 04:
First is whether it's properly withheld, and then the second, has there been disclosure?

[00:25:17] Speaker 04:
I think that is the correct way to look at it.

[00:25:34] Speaker 04:
the plaintiff's list of disclosures.

[00:25:43] Speaker 04:
They've got this long chart in their brief.

[00:25:45] Speaker 04:
It's a blue 44 to 52.

[00:25:50] Speaker 04:
And their point is that we have an affidavit from Lutz saying there hasn't been any official disclosure, but Lutz didn't look at any of this.

[00:26:02] Speaker 01:
I don't believe that's correct, Judge Tatel.

[00:26:05] Speaker 01:
I will say, if I can, a couple of things.

[00:26:09] Speaker 01:
So she did not see the list.

[00:26:10] Speaker 01:
But I don't think it was any surprise what public statements the ACLU was relying on as constituting the official disclosures.

[00:26:19] Speaker 01:
How did we know that?

[00:26:21] Speaker 01:
Well, she says in her affidavit, in the public affidavit and in the classified affidavit, that she has reviewed.

[00:26:27] Speaker 02:
Well, should you tell us anything she says in the classified affidavit?

[00:26:30] Speaker 04:
You don't want to say that.

[00:26:32] Speaker 04:
That's a good point.

[00:26:33] Speaker 02:
But just to be clear.

[00:26:42] Speaker 01:
But there are, as to this precise issue, I think

[00:26:46] Speaker 01:
Both declarations are clear, but I'm not going to get into classified information here, obviously.

[00:26:50] Speaker 01:
But she says that she has reviewed both the Second Circuit's ruling, which obviously outlines a number of the public disclosures that they rely on here.

[00:27:01] Speaker 04:
I understand that.

[00:27:01] Speaker 04:
Here's the question I have for you.

[00:27:03] Speaker 04:
If I look at the affidavit, well, I've looked at it.

[00:27:07] Speaker 04:
Will I find in that affidavit that true, this list from the ACLU and its brief comes after affidavit?

[00:27:15] Speaker 04:
But if I look at that affidavit, will it show me that she actually looked at those so-called disclosures?

[00:27:22] Speaker 01:
It does not.

[00:27:23] Speaker 01:
Is that your point?

[00:27:24] Speaker 01:
She says generally that she has looked at the public disclosures that have been made by the government in reaching the conclusion that the information is still properly with them.

[00:27:33] Speaker 04:
But how do we know that the public disclosures are listed in the brief here?

[00:27:37] Speaker 01:
She does not delineate which one to miss.

[00:27:39] Speaker 04:
But that's my whole point.

[00:27:41] Speaker 04:
Let's just suppose, for example, hypothetically, that it's very clear that she looked at, say, a dozen public disclosures, and the ACLU's brief identifies two more.

[00:27:55] Speaker 04:
What would we do with that?

[00:27:58] Speaker 01:
If I may, Your Honor, I think I would separate out kind of the affidavit itself and the legal question for this court about the status of various disclosures.

[00:28:10] Speaker 01:
Obviously the district court looked at what was the equivalent list provided by the ACLU before this court and said that the kind of

[00:28:18] Speaker 01:
Highly generalized public statements relied on by the ACLU were worlds different from the specific granular details sought in its request.

[00:28:29] Speaker 04:
So your point is that it's not a problem because just looking at the ACLU, I don't mean to put words in your mouth, but those are the same types of disclosures.

[00:28:38] Speaker 01:
That's right, Your Honor.

[00:28:39] Speaker 04:
Generic disclosures that don't meet our standard.

[00:28:42] Speaker 04:
This is not a factual... So we don't need an affidavit for that.

[00:28:44] Speaker 01:
We do not, Your Honor, and I think the existing affidavit clearly and adequately supports the withholdings on that respect.

[00:28:50] Speaker 04:
Let me take you on to another thing that concerns me.

[00:28:54] Speaker 04:
I understand your argument in our case law that if the affidavit is sufficiently specific,

[00:29:00] Speaker 04:
and gives a plausible explanation of why these materials are properly covered by the exemption, I mean, by the executive order, that we don't go look at the affidavits.

[00:29:12] Speaker 04:
I got that.

[00:29:13] Speaker 04:
But what about the segregability part of it?

[00:29:17] Speaker 04:
I mean, how can a court know that there isn't information in these documents that could be disclosed without looking at them?

[00:29:30] Speaker 04:
How do we know that?

[00:29:32] Speaker 04:
Assuming total good faith on the part of the person who writes the affidavit, she concludes that I've looked at them and it's all intertwined and they're not segregable.

[00:29:44] Speaker 04:
How does the court exercise its responsibility without looking at the documents?

[00:29:52] Speaker 01:
If I can provide a few answers, Your Honor.

[00:29:54] Speaker 01:
I think first, obviously the segregability analysis here is affected by the fact that we invoked not only Exemption 1 protection for these documents, but also Exemption 3 and Exemption 5.

[00:30:07] Speaker 01:
And because the documents, in our view, and as supported by the Letts Declaration, are withholdable in their entirety as privileged documents, I think the question of segregability that the ACLU is arguing here doesn't really grapple with that issue.

[00:30:23] Speaker 01:
I think second, yes, if the court was unable, on the basis of the description of the documents in the two Letts affidavits, to make a ruling on segregability, I don't think we would take

[00:30:37] Speaker 01:
The question is whether the court could reach that conclusion.

[00:30:40] Speaker 01:
And obviously, here, the district court found that there was no segregability to be done.

[00:30:45] Speaker 04:
Well, the district court didn't look at the documents either.

[00:30:48] Speaker 01:
The district court did not find it necessary to look at the documents.

[00:30:51] Speaker 01:
Obviously, there's a fairly detailed description of the various documents in the classified declaration that we think gives the court enough to roll on.

[00:30:58] Speaker 01:
And ultimately, this question of affidavits versus in-camera review, it's really a question of what the district court needs

[00:31:06] Speaker 01:
to assure itself that the documents have properly been withheld.

[00:31:11] Speaker 01:
And with all due respect, the court here found that it had enough from the government that it didn't need to undertake the process of in-camera review of the documents.

[00:31:20] Speaker 04:
But we reviewed decisions of district courts.

[00:31:22] Speaker 04:
That's why we're here.

[00:31:23] Speaker 01:
That's right, Your Honor.

[00:31:24] Speaker 04:
The question is, is that correct?

[00:31:26] Speaker 01:
Right.

[00:31:29] Speaker 01:
We don't disagree that if the court could not decide on the basis of the affidavits, it could look at the documents or potentially send it back.

[00:31:39] Speaker 01:
Obviously, the second category of documents here, the intelligence products,

[00:31:44] Speaker 01:
There were thousands of documents.

[00:31:45] Speaker 01:
They are described with some detail in the classified declaration.

[00:31:49] Speaker 01:
The district court didn't find it necessary to look at an example, but it had copious detail about the nature of those documents and what they contained.

[00:31:59] Speaker 01:
Is that an abuse of discretion?

[00:32:00] Speaker 01:
I think we would say certainly not.

[00:32:02] Speaker 01:
And I'm not even sure I understand the ACLU to be arguing that it's an abuse of discretion.

[00:32:06] Speaker 01:
Their argument appears to be that, and at one point in their argument, they embraced the bad faith label

[00:32:13] Speaker 01:
that somehow because of the official disclosures that have been made over time, that different standards should apply.

[00:32:22] Speaker 04:
What do we do with the fact that I have a question about the white paper, which is one of the documents at issue here.

[00:32:28] Speaker 01:
The classified white paper.

[00:32:30] Speaker 04:
Yeah, right.

[00:32:31] Speaker 04:
A district judge here has already ruled that parts of that don't pertain and had to be disclosed.

[00:32:40] Speaker 04:
It's a different case.

[00:32:43] Speaker 04:
But is the fact that another federal judge looked at the same document and thought that, contrary to what the affidavit said, some of the materials didn't pertain to intelligence sources and activities, is that enough of a basis for us to say, gee, we ought to look a little further here to see if maybe that's true of these other documents?

[00:33:05] Speaker 01:
I don't believe so, Your Honor.

[00:33:06] Speaker 01:
I think we have the district court here holding that that document was properly withheld in part.

[00:33:13] Speaker 04:
But this district court did not look at the document.

[00:33:18] Speaker 04:
Judge Maeda did look at the document.

[00:33:22] Speaker 04:
He wasn't doing it just on the bed.

[00:33:23] Speaker 04:
He actually looked at the document.

[00:33:25] Speaker 01:
That decision is still pending.

[00:33:31] Speaker 05:
Why didn't government make the argument to Judge Meda that this issue is before the D.C.

[00:33:37] Speaker 05:
Circuit, so hold off?

[00:33:39] Speaker 05:
Why didn't the government make that argument there?

[00:33:40] Speaker 01:
I'm not aware, Your Honor.

[00:33:41] Speaker 05:
I found it astounding.

[00:33:42] Speaker 01:
We do obviously think that decision is wrong.

[00:33:44] Speaker 05:
It must not be a very important issue to you then.

[00:33:46] Speaker 05:
I mean, it is here, but it wasn't there.

[00:33:48] Speaker 01:
We have sought reconsideration.

[00:33:50] Speaker 01:
Obviously, we do think it's an erroneous decision.

[00:33:51] Speaker 01:
I'm not aware whether they asked.

[00:33:53] Speaker 05:
That's not the issue I'm saying.

[00:33:55] Speaker 05:
It would seem to me that the Justice Department should have gone to the district court and said, hold off on that issue.

[00:34:01] Speaker 05:
It's going to be before the D.C.

[00:34:02] Speaker 05:
Circuit in this case.

[00:34:04] Speaker 05:
And yet the government didn't do that.

[00:34:05] Speaker 01:
I'm not aware whether the government did or didn't, Your Honor.

[00:34:10] Speaker 01:
I mean, obviously, we do think the document is withholdable.

[00:34:12] Speaker 01:
I would note that the district court in the southern district of New York also upheld its withholding every document.

[00:34:24] Speaker 05:
It's the law of this case that we don't care about.

[00:34:27] Speaker 01:
This obviously is a very complex set of cases to litigate because there are multiple parallel litigations involving partially overlapping sets of the same documents.

[00:34:40] Speaker 01:
The ACLU has submitted multiple requests.

[00:34:43] Speaker 04:
Is that issue pending before, that's still in the district court on a motion for reconsideration, right?

[00:34:48] Speaker 01:
Is that right?

[00:34:49] Speaker 01:
In the remit to matter, yes.

[00:34:51] Speaker 01:
There was an appeal filed of that ruling.

[00:34:54] Speaker 04:
And we dismissed it or something.

[00:34:55] Speaker 01:
Well, it's being held pending a decision on reconsideration.

[00:34:59] Speaker 01:
I assume that the court would then need to do, there will be an indicative ruling and a partial remand that the judge made to reconsider.

[00:35:06] Speaker 04:
Did you, we've consumed all your, did you have anything else you wanted?

[00:35:10] Speaker 04:
I thought I heard you starting another sentence when I interrupted you.

[00:35:14] Speaker 04:
Anything?

[00:35:15] Speaker 01:
No, Your Honor, I certainly would not want to interrupt you.

[00:35:17] Speaker 01:
I guess just to make one final point, if I could, or a couple of quick final points before sitting down.

[00:35:22] Speaker 01:
I just want to be clear, you know, the ACLU here has argued at great length that legal analysis can't properly be withheld, certainly after the Second Circuit earlier ruling that's their position, but of course,

[00:35:34] Speaker 01:
The Second Circuit has now issued a second decision and a second appeal as to 10 OLC memoranda, nine of which were withheld in their entirety.

[00:35:42] Speaker 01:
And that court itself has affirmed the withholding in their entirety of nine OLC memoranda about this very subject.

[00:35:50] Speaker 01:
So even under that court's, I think, looser standards for withholding, the court has held that legal analysis memoranda can be upheld in their entirety.

[00:36:01] Speaker 01:
And then, finally, on the working law issue, which the ASLU argues at length in its brief, first, you know, we think it's clearly waived.

[00:36:09] Speaker 01:
It was not preserved in the district court.

[00:36:11] Speaker 01:
Second, even they don't seem to argue, at least not in a robust way, that a working law theory would be a basis for overriding the Exemption 1 protection.

[00:36:19] Speaker 01:
And then, just to be clear, I think this court's EFF decision

[00:36:23] Speaker 01:
makes clear that working law is really understood properly as distinguishing between pre-decisional deliberative material, which is privileged and exempt under five, and the other.

[00:36:33] Speaker 01:
Thank you, Your Honor.

[00:36:34] Speaker 04:
Thank you.

[00:36:35] Speaker 04:
Did Mr. Jaffer have any more time?

[00:36:37] Speaker 04:
You can take two minutes.

[00:36:40] Speaker 06:
Thank you, Your Honor.

[00:36:41] Speaker 06:
Just a couple of quick points.

[00:36:44] Speaker 06:
So first, just to respond to something that the government just said about characterizing our argument to a legal analysis.

[00:36:52] Speaker 06:
In case there's any confusion about this, we are not arguing that legal analysis can't be withheld under Exemption 1.

[00:36:58] Speaker 06:
Our argument is that legal analysis can be withheld to the extent

[00:37:02] Speaker 06:
it is inextricably intertwined with classified facts.

[00:37:04] Speaker 06:
And that's entirely consistent with the Second Circuit's latest decision.

[00:37:08] Speaker 06:
It found that the legal analysis was intertwined and it couldn't be disentangled from properly classified facts.

[00:37:15] Speaker 06:
If that's the case with the memos here, then the court should uphold their withholding.

[00:37:20] Speaker 06:
Second, I just wanted to, in a more systematic way, provide once again the factors that I think distinguish this case from all the other cases involving the question of whether in-camera review was appropriate.

[00:37:33] Speaker 06:
I'm just going to list them because we've already discussed most of them.

[00:37:35] Speaker 06:
One is the findings that this Court has already made.

[00:37:37] Speaker 06:
in this case, with respect to the CIA's representations.

[00:37:41] Speaker 06:
Two is the Second Circuit made the same findings.

[00:37:45] Speaker 06:
Three is the timing of the government's affidavit, and Judge Tatel, I'm glad that you brought that up just now.

[00:37:51] Speaker 06:
Again, it was filed.

[00:37:52] Speaker 06:
The government's affidavit was filed.

[00:37:54] Speaker 05:
Do you have a rebuttal to the government's answer about the timing issue?

[00:37:59] Speaker 05:
Well, that's what you're supposed to be doing now.

[00:38:03] Speaker 06:
I didn't actually think that the government said anything that we hadn't already responded to.

[00:38:11] Speaker 04:
She said that we can look at that list ourselves and see that they're the same types of generic

[00:38:22] Speaker 04:
statements that don't qualify.

[00:38:25] Speaker 06:
So the government is making legal judgments in that case.

[00:38:28] Speaker 06:
The government is making a legal determination in its affidavit that this doesn't count as an official acknowledgement, this doesn't pertain to, and those kinds of things are things that the government isn't entitled to deference on.

[00:38:40] Speaker 04:
So what's the end of your list?

[00:38:41] Speaker 06:
And then finally, Judge, I just wanted to give you a site for the proposition that bad faith isn't the only circumstance in which the court can look at documents in camera.

[00:38:50] Speaker 06:
King versus DOJ, it's 830, f-second, 210.

[00:38:54] Speaker 06:
Is that our court?

[00:38:56] Speaker 06:
Yes.

[00:38:56] Speaker 06:
That's the DC Circuit.

[00:38:57] Speaker 04:
What does it say?

[00:38:58] Speaker 04:
Tell us what it says.

[00:38:59] Speaker 06:
So it lists factors that would justify a court looking at documents in camera.

[00:39:03] Speaker 04:
What's the date of it?

[00:39:04] Speaker 04:
I didn't hear the date.

[00:39:06] Speaker 06:
87, 1987.

[00:39:07] Speaker 04:
Okay, fine.

[00:39:10] Speaker 06:
So then the last thing I'll say, Your Honor, is that if the court reaches the harm analysis, as we hope that it will, our view is that the harm analysis has to be informed by the fact that drone strikes themselves are not secret.

[00:39:24] Speaker 06:
They are people who witness them overseas every day.

[00:39:28] Speaker 06:
It's not a secret to them.

[00:39:29] Speaker 06:
It's a secret, if it's a secret at all, only to us.

[00:39:33] Speaker 06:
The harm analysis also has to take into account the government's continuing disclosures about the program at a certain point.

[00:39:46] Speaker 02:
That's not what you're here for, looking for something that's already known, that is to say the fact of the drone strike.

[00:39:51] Speaker 02:
That's right, Justin Tom.

[00:39:52] Speaker 02:
I'm not making an official acknowledgement.

[00:39:53] Speaker 02:
When we separate that from intelligence sources and methods, the government's position, I think I state correctly, would be that what leads up to the drone strike and that which follows it involves sources and methods of intelligence.

[00:40:07] Speaker 06:
Your Honor, I think that if you ask the government to justify its harm argument, it should have to explain why the incremental information that we're asking for over and above the disclosures that the government has already made would cause harm.

[00:40:21] Speaker 06:
That's my only point, that the disclosures the government has already made should count for something.

[00:40:26] Speaker 06:
in the harm analysis.

[00:40:27] Speaker 06:
And at a certain point, and the court said this in its last opinion, at a certain point, the court has to recognize as true what everybody else recognizes as true.

[00:40:34] Speaker 06:
And the government shouldn't be permitted to keep claiming that all of this is a secret.

[00:40:40] Speaker 02:
All of this is where the problem comes in.

[00:40:44] Speaker 02:
The fact of the strike, you say, isn't a secret.

[00:40:47] Speaker 02:
But that's not what you're looking for.

[00:40:48] Speaker 02:
You already know that.

[00:40:50] Speaker 02:
Your honor, the things that the nation that surrounds the strength, right?

[00:40:54] Speaker 06:
That's right, your honor.

[00:40:55] Speaker 06:
But the government has disclosed not just the fact of the strike.

[00:40:58] Speaker 02:
Your red light.

[00:40:59] Speaker 02:
Okay, your honor.

[00:41:00] Speaker 02:
Thank you.

[00:41:03] Speaker 04:
Thank you.

[00:41:04] Speaker 04:
The case is submitted.

[00:41:06] Speaker 04:
Um, yeah, let's take a five minute break and clear the courtroom and then