[00:00:02] Speaker 05:
Case number 18-57.

[00:01:06] Speaker 03:
Good morning, Your Honors.

[00:01:09] Speaker 04:
May it please the Court, Lauren Burke, arguing on behalf of Appellant Judicial Watch.

[00:01:15] Speaker 04:
This appeal stems from the government's refusal to disclose five memorandum memorializing the legal justifications surrounding issues on the raid on Osama bin Laden's compound.

[00:01:30] Speaker 04:
This Court should find in favor of the Appellant for two reasons.

[00:01:35] Speaker 04:
First, the memos do not meet the criteria of exemptions asserted.

[00:01:41] Speaker 04:
Appellee has asserted Exemption 5, Exemption 1, and Exemption 3.

[00:01:46] Speaker 04:
Unfortunately, they have not sustained the specific details required to assert the privileges asserted.

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And second, the government avoids providing any substantial information to make an adequate determination about the memos for this court to determine whether or not the exemptions asserted are adequate.

[00:02:08] Speaker 03:
So why doesn't Exemption 5 apply in light of this court's decision in an in-race sealed case?

[00:02:17] Speaker 03:
121 said third.

[00:02:20] Speaker 03:
Correct.

[00:02:21] Speaker 04:
The in-race sealed case records that were requested are actually quite different than the records that are requested here.

[00:02:29] Speaker 04:
The memos are, in the case at issue, are post-decisional.

[00:02:36] Speaker 03:
And we've said that doesn't matter.

[00:02:37] Speaker 04:
It doesn't matter that they're post-decisional.

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However, it's the nature of the records that are being sought.

[00:02:43] Speaker 04:
In NRA SEALS, they were notes and justifications, contemporaneous telephone calls.

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They reflected internal communications.

[00:02:54] Speaker 03:
The President's trying to decide what to do.

[00:03:02] Speaker 04:
And that is exactly what he did here.

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The President, his advisors specifically sought legal advice on five specific topics of what U.S.

[00:03:14] Speaker 04:
and international law was to determine whether or not the actions they were going to take would adequately be under U.S.

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and international law justification.

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post-decision, post-raid, they have publicly touted that such action and conduct and operation was fully supported, authorized under law, internationally and under U.S.

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law, and it is now upon request by the public that they refuse to release those memorandums.

[00:03:45] Speaker 03:
So you draw a distinction between an aide's notes and an aide who has legal training's notes.

[00:03:54] Speaker 04:
I do, at the risk of sounding a little bit elitist, that attorneys do have a responsibility and oath, an obligation to uphold and enforce justice, regardless of

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what facts may be, what their client may want, they are to research, report, and provide advice based on the law.

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It's separate and distinct from an employee or a historian that may potentially be at risk for changing what they write or what they record in

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memos reported on discussions that were made within and among their own colleagues.

[00:04:43] Speaker 03:
So in our opinion, we said that on an adequate showing of need could overcome the exemption.

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What is the adequate showing of need here?

[00:05:02] Speaker 04:
I would argue that it doesn't necessarily reach need showing.

[00:05:07] Speaker 04:
However, if it were to be determined, we'd have a little bit more information provided by the government as to when, how, what, who was involved, proximity of several.

[00:05:18] Speaker 03:
Well, you know when.

[00:05:20] Speaker 03:
You know who.

[00:05:22] Speaker 04:
We don't, actually.

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We know who the authors were.

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Do you know who these people were by their titles?

[00:05:30] Speaker 04:
We do.

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They are top experts in their field.

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They were specifically pulled.

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There were five of them to address.

[00:05:38] Speaker 03:
And so given our opinion in sealed case, what is the significant showing of need for disclosure?

[00:05:46] Speaker 04:
The public has a right to know the justification that is being publicly touted by the government that the actions taken were legally justified.

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qualified by certain exemptions.

[00:06:06] Speaker 04:
Certain exemptions must meet certain criteria.

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And I'm asking you, where's the significant showing of need?

[00:06:16] Speaker 04:
The significant showing of need is that the burden is actually on the government to show that an exemption applies.

[00:06:24] Speaker 03:
The criteria has met and I don't... I know, all I'm getting at is

[00:06:29] Speaker 03:
This panel is bound by what we said previously about exemption five, is it not?

[00:06:49] Speaker 04:
We do have to overcome that if the government has met their burden, which is my argument that they have not met that burden.

[00:06:57] Speaker 04:
They have not provided adequate details for this court to make a reasonable determination that the exemptions asserted apply.

[00:07:04] Speaker 04:
They make very broad-based assertions in their declarations, but do not provide the specific details with regards to the presidential privileges.

[00:07:15] Speaker 04:
The deliberative process does not seem to apply.

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that it was not an interagency deliberative discussions, or at the very least, if it were, their declarations don't support such an assertion.

[00:07:31] Speaker 00:
And so, just to get back to where we started, the argument for why these communications don't fall within the presidential communications privilege has to do with the fact that their legal advice, because they are, according to the declaration, they are communications to the president.

[00:07:47] Speaker 04:
According to the declaration, they are to the president or his advisors.

[00:07:53] Speaker 00:
I think it says to the president and his advisors.

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So I assume that you're taking as a given and we take as a given that these were communications to the president.

[00:08:05] Speaker 04:
For argument's sake, I will concede that there is an argument to know whether or not and when, how, and through what method that those communications reached the president.

[00:08:17] Speaker 04:
As far as, the argument is not that because it is legal advice, therefore falls outside of presidential communications privilege.

[00:08:26] Speaker 04:
It's that it's not legal advice that would be protected by a privilege under Exemption 5, whether it's attorney-client or presidential communications.

[00:08:37] Speaker 04:
The justification memos are statements of law, of legal authority.

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They are memos that

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specifically were assigned to the top attorneys, they happened to be attorneys because they were seeking legal authority for specific facts to know that they could authoritatively proceed in certain direction or not proceed in certain direction.

[00:09:03] Speaker 04:
It's outside the scope, I would say, of advice and more inside the scope of providing legal authority, expertise.

[00:09:14] Speaker 00:
I guess I don't understand the difference between advice and legal authority because it seems like when you're advising somebody about whether what they want to do is lawful, it does have to do with legal authority, but it's also advice.

[00:09:25] Speaker 00:
What is it about this particular type of advice that takes it outside?

[00:09:30] Speaker 00:
What?

[00:09:31] Speaker 04:
Outside the scope of the privilege for presidential communications.

[00:09:34] Speaker 04:
Well, the privilege of presidential communications encompasses the deliberations.

[00:09:40] Speaker 04:
This happens to be, in the sense that it is advice, was not a back and forth discussion.

[00:09:48] Speaker 04:
It did not encompass the give and take of policy and law making, which traditionally encompasses deliberative process.

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Rather, it was more on the,

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It would be more in relation to almost factual, actual legal authority provided to the team that then continues to deliberate.

[00:10:13] Speaker 00:
I want to make sure I understand your argument just because the scope of the presidential communications privilege is something that we need to take into account when we decide this case.

[00:10:22] Speaker 00:
So isn't it legal advice about legal authority

[00:10:27] Speaker 00:
can be part of deliberations.

[00:10:29] Speaker 00:
It seems like that's a natural part of deliberations.

[00:10:31] Speaker 00:
Often when somebody's trying to make a decision about whether to undertake a particular course of conduct, one part of the deliberations that attends the decision is, what's my legal authority?

[00:10:41] Speaker 00:
Where are we in terms of lawfulness?

[00:10:45] Speaker 00:
So it seems like it's naturally could be part of the deliberative process that's undertaken by the decision maker.

[00:10:55] Speaker 04:
And I agree with the term that you're using, in the sense that you're using could be part of a deliberative process.

[00:11:00] Speaker 04:
And there are cases, and the present counsel has cited cases, where legal advice is part of the deliberative process.

[00:11:07] Speaker 04:
And certainly those facts encompass that.

[00:11:10] Speaker 04:
That is not the case here, or at the very least we don't have enough information.

[00:11:14] Speaker 04:
All we know is that

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Five top advisors were provided with five single issues.

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They went to work, they researched, they provided legal authority.

[00:11:30] Speaker 04:
My understanding, potentially, is that they briefed someone, and then after the raid, the memorializations were placed down.

[00:11:41] Speaker 04:
It is the government's argument that these post-decisional memorializations reflect.

[00:11:46] Speaker 00:
Let me just ask you, there's one sentence I'm focused on in the declaration, and this is the Shiner Paragraph 8 on page 22 of the Joint Appendix.

[00:11:57] Speaker 00:
within that paragraph about two-thirds of the way down on the page.

[00:12:01] Speaker 00:
This advice, meaning the advice in the memorandum, served as one consideration among others weighed by the president and his national security advisors in advance of the president's decision to authorize the raid on Bin Laden's compound.

[00:12:13] Speaker 00:
So it is part of, according to this, it's part of the advice that was weighed by the president.

[00:12:24] Speaker 00:
in advance of the decision.

[00:12:26] Speaker 00:
That sounds like deliberation.

[00:12:28] Speaker 00:
That sounds like part of the deliberative calculus.

[00:12:33] Speaker 00:
was embodied in these memoranda and the President's consideration there too.

[00:12:40] Speaker 04:
I think the distinction here, and I recognize what you're seeing as this advice served as one consideration.

[00:12:47] Speaker 04:
The deliberate process was on the part of the advisors and the President in making the final determination, final decision on how to act.

[00:12:56] Speaker 04:
In doing so, they do take

[00:12:59] Speaker 04:
legal authority, all of that.

[00:13:00] Speaker 04:
But that legal authority and what comes together was not a deliberative process, per se.

[00:13:06] Speaker 04:
It was the creation of legal authority.

[00:13:11] Speaker 04:
was briefed and then the deliberative process proceeded and decision was made and all that sort of thing.

[00:13:18] Speaker 04:
The distinction here and the request that is being made is specific not to any part of the deliberative process or the discussions or the back and forth or the give and take, but rather what is the legal authority that they continue to say, we acted with full, confident legal authority.

[00:13:38] Speaker 04:
we are arguing that the public has a right to know what is your legal authority.

[00:13:45] Speaker 04:
You were tasked to say, here is the issue, what is the legal authority, to act or not to act.

[00:13:52] Speaker 04:
Is it legal or not legal?

[00:13:55] Speaker 04:
It wouldn't reveal any secret deliberations or alternative that may have been discarded because it's legal authority.

[00:14:06] Speaker 04:
It wasn't within the realm of the government or the president or his advisor to discard.

[00:14:11] Speaker 04:
It was the law.

[00:14:13] Speaker 04:
It wasn't contemplation of what the law should be or what the policy should be.

[00:14:17] Speaker 04:
It was clear legal statement what the law is.

[00:14:40] Speaker 04:
That is correct.

[00:14:41] Speaker 03:
And you're positing this as though Congress had passed a statute that says the president shall not one, two, three.

[00:14:51] Speaker 03:
And the president did one, two, three.

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And it may not be as simple as that.

[00:14:56] Speaker 03:
Would you agree?

[00:14:59] Speaker 04:
The hope is that the justification says, given the facts which have been revealed to the public, we know the topic of each issue given to each individual expert attorney.

[00:15:15] Speaker 04:
Given these facts, can we act this way?

[00:15:17] Speaker 04:
The answer is yes, because that is the result of how they acted.

[00:15:23] Speaker 04:
If they did not,

[00:15:25] Speaker 04:
or the legal authority goes in the opposite direction, I think that is also within the public interest, and it's becoming a little bit nerve-racking to us why they go to such lengths to avoid it.

[00:15:37] Speaker 00:
We don't know what the memoranda says, but suppose that the memoranda says something like this.

[00:15:44] Speaker 00:
My opinion is that the legal authority to go forward is the following.

[00:15:51] Speaker 00:
We've had a lot of discussions about this.

[00:15:53] Speaker 00:
There's some disagreement amongst us, but my view, and I'm the person who's ultimately charged with giving you legal advice, is that the better reading of the following three sources of legal authority supports your authority to go forward and do this.

[00:16:10] Speaker 00:
It's not a fact about the world.

[00:16:13] Speaker 00:
It's somebody, like what lawyers do all the time is, I can give you the citations, I'll read the same cases you do, here's my interpretation of them, and here's why I think they stand for the proposition that you can go forward.

[00:16:26] Speaker 00:
That sounds like the type of advice that's part of deliberations that comes within the compass of things that we would think might stay confidential, because if they were to be disclosed, it would tend to stifle that kind of exchange.

[00:16:39] Speaker 04:
If it might answer.

[00:16:41] Speaker 04:
I understand exactly what you're saying, and because we don't know what they say, we have posed those questions to the government on numerous occasions.

[00:16:51] Speaker 04:
They had issued a notice of clarification.

[00:16:53] Speaker 04:
There was some confusion.

[00:16:55] Speaker 04:
The difficulty here is that the government has not provided evidence or statements saying that, and the declarations that they have provided are very general.

[00:17:05] Speaker 04:
They simply say that this was

[00:17:09] Speaker 04:
the presidential office and involved a decision being made by him, and therefore it's covered.

[00:17:16] Speaker 04:
And I don't believe that that actually reaches the intent of Congress in transparency and open government.

[00:17:24] Speaker 04:
There needs to be more.

[00:17:25] Speaker 04:
They need to say,

[00:17:27] Speaker 04:
Here's the five authors, or here are the people involved, here were those being briefed.

[00:17:33] Speaker 04:
It goes beyond just straight legal research and authority.

[00:17:37] Speaker 04:
It contains opinions such as you're describing it.

[00:17:56] Speaker 05:
Good morning, Your Honor.

[00:17:57] Speaker 05:
Samantha Heifetz for the United States.

[00:18:01] Speaker 05:
The memoranda that are at issue here, as the Court has been discussing, they were the result of questions that were posed by the President and his top legal advisors.

[00:18:14] Speaker 05:
asking about scenarios being contemplated in connection with a possible raid in Pakistan targeting bin Laden.

[00:18:24] Speaker 05:
And those questions were taken, they were examined, and opinions were given.

[00:18:28] Speaker 05:
The President was briefed on the views that were formed by those who looked into these particular questions.

[00:18:37] Speaker 05:
And the particular documents that are at issue here memorialized the advice that was given.

[00:18:43] Speaker 05:
This kind of process falls within the heartland of all of the exemption five privileges that we have invoked here in the district court recognize that presidential communications privilege, deliberate process privilege, attorney-client privilege.

[00:18:57] Speaker 05:
And nothing that's been said here cuts in any way or undermines that in any respect.

[00:19:14] Speaker 03:
you can invade the airspace of Pakistan.

[00:19:18] Speaker 03:
And that's one memo.

[00:19:20] Speaker 03:
And another memo is along the lines, Judge Sreenivasan was exploring with counsel.

[00:19:27] Speaker 03:
Does it matter, is my question.

[00:19:31] Speaker 03:
And the second

[00:19:44] Speaker 05:
Well, to start with the second question and then go back to the first, I think the district court here did not see any need to look at the documents in camera.

[00:19:52] Speaker 05:
And I think that that's quite correct here, where there is actually declarations that do provide, as the district court noted, all of the necessary context to understand.

[00:20:03] Speaker 03:
Definitely answer the first question.

[00:20:05] Speaker 05:
So the first question of exactly what the nature of the opining on, I think the district court recognized that given the type of questions that are at issue here, it would be quite frankly quite difficult to imagine that it could be a simple

[00:20:22] Speaker 05:
connecting point A to point B as Judicial Watch has suggested.

[00:20:26] Speaker 05:
But even if it were, the point here is really that these are attorneys providing their views.

[00:20:33] Speaker 05:
And even if the particular attorney thought that it was a simple point A to point B, that in and of itself would simply be the view of that attorney.

[00:20:42] Speaker 03:
So it's not the view of the State Department?

[00:20:46] Speaker 05:
These were decisions that ultimately were to be made by the president.

[00:20:56] Speaker 05:
discussed in Electronic Frontier Foundation, just because someone can opine on and provide input about what the legality or the advisability would be of a particular course, that's not the same as more authoritatively to what the policy is.

[00:21:13] Speaker 03:
So how should this court draw the line?

[00:21:15] Speaker 03:
That's what I'm trying to understand.

[00:21:17] Speaker 03:
I mean, for instance, the Office of Legal Counsel of the Department of Justice issues opinions all the time.

[00:21:29] Speaker 05:
This court's, certainly this case is I think on the spectrum a simple one, but this court's precedents are instructive and we do not have here, and there is not even an allegation of anything that looks remotely like express adoption of a particular view.

[00:21:53] Speaker 05:
There are scenarios where

[00:21:55] Speaker 05:
particular views, if expressly adopted by the decision maker, might become subject to disclosure.

[00:22:03] Speaker 05:
And this court has talked about that in cases like Electronic Frontier Foundation, like access reports versus the Department of Justice all the way back in 1991.

[00:22:14] Speaker 05:
But here, that's not even part of the conversation.

[00:22:18] Speaker 05:
There's nothing here that tells us that that was what was going on.

[00:22:23] Speaker 05:
This notion that these were so-called justification memos, referring to these as justification memos, is simply a term that Judicial Watch has employed.

[00:22:32] Speaker 05:
That's not what the government has ever referred to these memoranda as.

[00:22:37] Speaker 05:
The government hasn't made specific reference to these memoranda.

[00:22:42] Speaker 05:
What we have explained in our declarations and in the briefs and in the briefs below is that the government was contemplating all of the potential legal consequences of taking a variety of courses of action in connection with this possible operation.

[00:22:56] Speaker 05:
And so legal advice was prepared for the decision maker, ultimately the president, was briefed to the president and his top national security advisors, and was memorialized in these memoranda.

[00:23:13] Speaker 02:
Do we know from the declarations whether any course of action other than the one taken was analyzed or referred to?

[00:23:23] Speaker 05:
course of action other than the one taken.

[00:23:26] Speaker 05:
I mean, there were a variety of possibilities taking action not to use.

[00:23:31] Speaker 02:
There's always the no action possibility.

[00:23:33] Speaker 02:
That's right.

[00:23:34] Speaker 02:
Any other?

[00:23:34] Speaker 05:
Well, I think for each of these, without speaking to the content of the memos, contemplates a range of possible approaches.

[00:23:44] Speaker 02:
What do we know from the declarations that there's?

[00:23:47] Speaker 05:
Well, for example, in the CIA declaration, I don't think that there's specificity about what the options were for obvious reasons.

[00:23:56] Speaker 01:
There's a reference to options.

[00:23:57] Speaker 05:
But there is a reference to options, yes, Your Honor.

[00:24:03] Speaker 05:
In paragraph 9, the advice sets forth the factual background.

[00:24:09] Speaker 05:
and the potential legal consequences of taking a certain course of action in connection with the operation.

[00:24:15] Speaker 05:
And then each of the memoranda is discussing different possibilities.

[00:24:21] Speaker 05:
And in paragraph eight, it's the plural form, so taking certain courses of action.

[00:24:28] Speaker 05:
Because, of course, in each of these scenarios, there were a variety of ways in which one could have proceeded.

[00:24:33] Speaker 01:
I'm looking at paragraph eight.

[00:24:35] Speaker 01:
What should I see here?

[00:24:37] Speaker 05:
Sorry?

[00:24:38] Speaker 05:
The memorandum memorialized legal advice that was briefed to the President and his closest advisors for the purposes of providing an understanding of the legal implications associated with taking certain courses of action.

[00:24:55] Speaker 05:
And in paragraph 9, the advice is not an authorization to conduct a given activity, but rather one step in the executive branch's deliberations, determining legally available options associated with the then proposed raid.

[00:25:10] Speaker 05:
And then goes on to discuss, of course, the ways in which the concerns here are all particularly acute, given the specifics of the scenarios that were being contemplated.

[00:25:20] Speaker 05:
But I don't think there's any suggestion here that there was only a single course being considered.

[00:25:28] Speaker 02:
I think that might be consequential material.

[00:25:33] Speaker 02:
I mean, we heard from counsel for the plaintiff that implicitly portraying this as, well, here's the course of action, here's the legal authority, and that's the end of it.

[00:25:44] Speaker 02:
When in fact, if there's a weighing of options, that seems to me more obviously in the realm

[00:25:54] Speaker 05:
I think that's right, Your Honor.

[00:25:55] Speaker 05:
And that as well, there's always a range of ways in which the legality of any given option may be viewed.

[00:26:01] Speaker 05:
So it's also inaccurate to suggest that one would expect memos of this kind to be the kind of connecting of the simple connect the dots or paint by number approach that Judicial Watch has suggested here.

[00:26:19] Speaker 03:
So let me just be clear.

[00:26:20] Speaker 03:
I understand your point.

[00:26:25] Speaker 03:
One of the memos might simply say option A would not be legally authorized action, period.

[00:26:37] Speaker 03:
Of course.

[00:26:37] Speaker 03:
And cite four Supreme Court cases.

[00:26:40] Speaker 03:
And that's all it says.

[00:26:41] Speaker 03:
Do we care?

[00:26:43] Speaker 03:
That's what I'm trying to understand.

[00:26:48] Speaker 05:
Even if in analyzing a particular scenario, one of these authors thought that things were in fact quite straightforward and the advice was given was very direct.

[00:26:58] Speaker 05:
What matters here is it's still legal advice being provided during a deliberative process in communication with the president.

[00:27:07] Speaker 05:
It still falls within the heartland in every respect because it is not a final decision that would take it outside the deliberative process privilege.

[00:27:14] Speaker 05:
It's nothing other than confidential legal communications between a client and his attorneys.

[00:27:23] Speaker 05:
It's also clearly then presidential communication, and for the reasons that we've been discussing, it's part of this larger deliberative process.

[00:27:32] Speaker 05:
Nothing about the fact that a particular memo might seem particularly straightforward would take it outside the realm of any, sorry.

[00:27:38] Speaker 03:
Where does the doctrine about concern about secret law come into play?

[00:27:45] Speaker 05:
So secret law is really very different from what we have here.

[00:27:48] Speaker 05:
Secret law is where you've got

[00:27:52] Speaker 05:
the creation or determination, and this is quoting this court, of the substantive rights and liabilities of a person where you have something that is, that effectively has the force, the effect of law.

[00:28:09] Speaker 05:
You have the cases that this court has decided in this area are very helpful to the government here because they really point to the correctness of the district court's decision.

[00:28:18] Speaker 05:
Pieces like Afshar versus Department of State,

[00:28:21] Speaker 05:
where there a decision was at issue regarding the Iranian embassy and the court made clear that nothing about that State Department

[00:28:31] Speaker 05:
opinion would constitute secret law or working law for all of these reasons.

[00:28:36] Speaker 05:
It wasn't creating or establishing the rights of a person.

[00:28:38] Speaker 05:
It wasn't establishing precedent that was going to be applied going forward to members of the public in proceedings.

[00:28:45] Speaker 05:
That was what you had at issue in cases like coastal states and tax analysts where you have an agency like the IRS

[00:28:52] Speaker 05:
issuing a memo that says this is what the tax code means in this scenario.

[00:28:56] Speaker 05:
We want it to be applied uniformly going forward.

[00:28:59] Speaker 05:
So we're going to send it out to the field.

[00:29:02] Speaker 05:
We're going to expect people to follow it.

[00:29:04] Speaker 05:
It's going to affect various members of the public who come forward who have cases that implicate this particular decision.

[00:29:10] Speaker 05:
It's going to be routinely used by agency staff.

[00:29:12] Speaker 05:
It's going to be disseminated for that reason.

[00:29:14] Speaker 05:
Here we have confidential communications that are not disseminated whatsoever, that don't have precedential value, that didn't control – weren't controlling of the President's decision at the time, let alone presidential for future decision-making.

[00:29:28] Speaker 00:
So if the President takes legal advice and then says, I'm deciding to go forward based on the advice I got in Memo A,

[00:29:38] Speaker 00:
then the decision to go forward is grounded in the legal authority that's memorialized in memo A, then that seems like that's law that governs the situation.

[00:29:51] Speaker 05:
This court has been quite clear, as well as the Supreme Court for that matter, that for that to be true, to have adoption, it really has to be expressed near reliance.

[00:30:00] Speaker 05:
So cases like Abtu versus DHS in this court, cases like Sears in the Supreme Court, make it very clear that

[00:30:07] Speaker 05:
Simply merely acknowledging that you received advice that might have supported the decision wouldn't get you there.

[00:30:16] Speaker 05:
Certainly we have nothing even of that sort here that makes reference to these memoranda.

[00:30:20] Speaker 05:
So there's nothing, there's been no public statement by the government that there was reliance on these memoranda for any particular purpose.

[00:30:27] Speaker 05:
This notion again of these being justification memos is without basis.

[00:30:32] Speaker 05:
It's not to say, Your Honor, that you couldn't have a case where the particular facts would get you to the conclusion that there had been adoption.

[00:30:40] Speaker 05:
But this court and the Supreme Court, the Second Circuit, the Fifth Circuit have all been very clear that what it takes to get there is very significant and specific.

[00:30:47] Speaker 00:
But if you have adoption, then it brings into play the secret law.

[00:30:50] Speaker 05:
That's right.

[00:30:51] Speaker 05:
Well, I mean, it's not, I don't know that you would call it secret law.

[00:30:55] Speaker 05:
If there's adoption, you might call it something other than

[00:31:01] Speaker 05:
The secret law, there you might determine that something falls outside the deliberative process privilege because it's final, but it wouldn't necessarily, secret law again, as this court has described it, it's really specific to being agency working law.

[00:31:14] Speaker 05:
And here we're talking about decisions of the president, so they still would not fall within what this court has described as secret law because it would, I mean, once you have expressed adoption, there wouldn't be anything secret about it.

[00:31:27] Speaker 00:
No, there would be because I'm going to keep it secret.

[00:31:30] Speaker 05:
I'm assuming that if we were in agreement that it had been truly adopted and was being put forward.

[00:31:38] Speaker 00:
Yeah, but that's always the case with secret laws.

[00:31:43] Speaker 00:
We know that there is a claim basis of the decision.

[00:31:45] Speaker 05:
I think we're getting to the same result, which is that I'm in agreement that there are scenarios that would look very different than the case that we have here, where the facts could play out such that a particular piece of

[00:32:05] Speaker 05:
agency work product would ultimately or lawyers input might be ultimately adopted in such a way that it was subject to disclosure.

[00:32:16] Speaker 05:
But nothing in this case implicates any of this court's decisions about so-called secret law or agency working law.

[00:32:23] Speaker 00:
Nor does it implicate any aspect of the express adoption doctrine that this court has developed and that other courts have developed.

[00:32:44] Speaker 05:
Well, as this court has explained, it's broader than the deliberative process in certain respects.

[00:32:49] Speaker 05:
It covers post-decisional materials, so it is not limited in the same way that deliberative process is.

[00:32:58] Speaker 00:
Is there a reason that it makes more sense to rely on one of the three rather than the other two?

[00:33:06] Speaker 05:
This case really does fall within the heartland of all three.

[00:33:09] Speaker 05:
The district court principally relied on the presidential communications privilege and the attorney-client privilege.

[00:33:17] Speaker 05:
And with regard to deliberative process, the court essentially didn't engage in an in-depth analysis because of its lengthier discussion of presidential communications.

[00:33:27] Speaker 05:
We welcome the court affirming on any grounds as the court sees fit.

[00:33:31] Speaker 00:
You don't see, I'm just hypothesizing, if it were going to go in your favor, you don't see a meaningful distinction between them.

[00:33:41] Speaker 05:
There are obviously meaningful distinctions in the scope of the various privileges, but here, do you think they're all equally applicable?

[00:33:51] Speaker 05:
Given that the district court below specifically engaged in lengthy analyses with regard to presidential communications and attorney-client, that would seem to be the most natural way on which to affirm.

[00:34:06] Speaker 05:
But we would welcome affirmance on any grounds.

[00:34:11] Speaker 05:
If there are no further questions.

[00:34:14] Speaker 03:
Thank you.

[00:34:14] Speaker 05:
Thank you.

[00:34:22] Speaker 04:
If I may just briefly.

[00:34:23] Speaker 04:
Yes.

[00:34:25] Speaker 04:
Just to address quickly.

[00:34:28] Speaker 04:
Judge.

[00:34:30] Speaker 04:
Your question regarding secret law and that is a little bit of an issue in that.

[00:34:39] Speaker 04:
Opposing counsel has raised that

[00:34:42] Speaker 04:
It does need, it's very limited, it's very narrow.

[00:34:45] Speaker 04:
Secret law addresses liability and rights and government action that affect those liabilities and rights without being publicly disclosed.

[00:34:56] Speaker 04:
And I would argue that there was liability and rights that were at issue here, the liability of the United States.

[00:35:03] Speaker 04:
in making sure that they were acting under law, both internationally and under US law.

[00:35:11] Speaker 04:
And they have proceeded with acting and on multiple occasions touted that they did so under law.

[00:35:21] Speaker 04:
What law?

[00:35:22] Speaker 04:
What is the basis for those actions, for justification of that?

[00:35:26] Speaker 04:
And that is where potentially they are acting

[00:35:31] Speaker 04:
on justifications that are secret law because we don't know what it is.

[00:35:43] Speaker 04:
In order to qualify for secret law, they would have to expressly state that they acted, the government state what they acted under and then refuse to actually reveal it, such as some of the cases where it is more regulatory and there are policies.

[00:35:57] Speaker 04:
However, the government has expressly stated that they act under full authority of the law and the request here is what is the basis of those actions and what is the authority that you acted upon.

[00:36:15] Speaker 04:
And at that point, I would just ask if you have any further questions.