[00:00:00] Speaker 01: Case number 20-5045, Knight First Amendment Institute at Columbia University, committed to protect journalists of balance versus Central Intelligence Agency et al. [00:00:11] Speaker 01: Ms. [00:00:12] Speaker 01: Swain for the balance, Ms. [00:00:13] Speaker 01: Swingle for the appellees. [00:00:18] Speaker 06: Good afternoon. [00:00:19] Speaker 06: You can start whenever you're ready, Ms. [00:00:21] Speaker ?: Swain. [00:00:22] Speaker 03: Thank you, your honor and may please the court. [00:00:25] Speaker 03: My name is Alexandra Swain and I represent the Committee to Protect Journalists. [00:00:28] Speaker 03: I've reserved two minutes of my time for rebuttal. [00:00:32] Speaker 03: So your honors, I'll say at the outset that this is an extraordinary case on an important issue in which the government has taken an illogical position. [00:00:41] Speaker 03: CPJ stands before this court as detailed in our briefs because a man was gruesomely murdered and credible reporting suggests that the United States may have been in a position to warn him. [00:00:53] Speaker 03: The American public is demanding to know what our government knew of threats to Mr. Khashoggi's life and whether they fulfill their duty to warn him. [00:01:02] Speaker 03: And this is the exact type of case that calls for the public accountability that Congress intended the Freedom of Information Act to promote. [00:01:11] Speaker 03: The relief that we seek from this court is extremely limited. [00:01:14] Speaker 03: We're simply seeking that the IC elements confirm or deny the existence of documents related to the duty to warn Mr. Khashoggi [00:01:23] Speaker 03: or at the bare minimum for the government to meet its burden and logically explain their Glomar responses in light of a fellow IC elements public official acknowledgement that the United States had no prior knowledge of Mr. Khashoggi's killing and the CIA and the ODNI's position in the open society litigation pending before the Southern District of New York. [00:01:46] Speaker 03: As you all know, the Supreme Court has held that. [00:01:49] Speaker 06: Can I ask you a predicate question here? [00:01:53] Speaker 06: You talk about the State Department and being a member of the intelligence community. [00:02:01] Speaker 06: And what I wanted to know is, is the State Department itself actually a member [00:02:10] Speaker 06: It didn't seem to me that it's a member, that maybe it has a bureau that's a member, the Bureau of Intelligence and Research, but the State Department as an entity is not actually part of this IC group, as you call it. [00:02:23] Speaker 06: Is that right? [00:02:25] Speaker 03: So one particular bureau, you're right, Your Honor, within the Department of State, the Bureau of Research and Intelligence is a member of the intelligence community. [00:02:32] Speaker 06: The rest of the State Department's not. [00:02:34] Speaker 06: For obvious reasons, normally the State Department does not want people to think that all its members, all its ambassadors are [00:02:41] Speaker 06: part of an intelligence community. [00:02:43] Speaker 06: Is that right? [00:02:44] Speaker 03: But your honor, I will say that the deputy spokesperson was got up before the American people and spoke for the Department of State. [00:02:54] Speaker 06: Sure, I want to I want to confirm the structural point. [00:02:57] Speaker 06: And that is that the State Department as an entity is not a member. [00:03:01] Speaker 06: It's only this one hero within the State Department that's a member. [00:03:05] Speaker 03: Yes, Your Honor, the Bureau of Research, Intelligence and Intelligence is a member of the intelligence community. [00:03:13] Speaker 06: But again, the State Department spokesperson was speaking on behalf of the Bureau. [00:03:23] Speaker 03: I believe it is our position that the Department of State, the official spokesperson for the Department of State was speaking more than just for the Bureau of Research Intelligence. [00:03:36] Speaker 03: It was in fact speaking on behalf of the entire United States. [00:03:39] Speaker 03: And I'll just quote the particular statement. [00:03:42] Speaker 03: The deputy spokesperson in front of the American people got up and said, I can definitively say that the United States had no advanced knowledge of Jabal Khashoggi's disappearance. [00:03:53] Speaker 04: It's when you skipped. [00:03:55] Speaker 04: I'm sorry. [00:03:55] Speaker 04: Go ahead. [00:03:55] Speaker 04: Please. [00:03:57] Speaker 06: No, I don't know. [00:04:04] Speaker 04: I was just saying this way. [00:04:05] Speaker 04: I think you skipped the key six words before your quote said word for your quote. [00:04:11] Speaker 04: It says, although I cannot comment on intelligence matters, I can say, well, you, you quoted. [00:04:17] Speaker 04: So I really didn't mean to interrupt judgment. [00:04:19] Speaker 04: Let's line a questioning. [00:04:21] Speaker 03: Right. [00:04:21] Speaker 03: And your honor, I'll say that I can think of nothing that's more of an intelligence, a matter of intelligence than a clandestine plot by a foreign government to kill a dissident. [00:04:31] Speaker 03: And so the Department of State can't simply put out a facile preface and just erase the rest of its statement. [00:04:41] Speaker 03: If it wasn't speaking towards an intelligence issue, [00:04:44] Speaker 03: How could it have said the United States had no advanced knowledge? [00:04:48] Speaker 04: Isn't it not unusual for press spokespeople of various agencies or various organizations to use a lot of words in order to say nothing? [00:04:59] Speaker 04: Sometimes that's their job. [00:05:01] Speaker 05: Taking judicial notice of that. [00:05:05] Speaker 03: I will respectfully submit. [00:05:07] Speaker 04: I hope judges do that less often than PR people. [00:05:12] Speaker 04: Isn't it possible that [00:05:13] Speaker 04: This state department person was asked a question. [00:05:16] Speaker 04: It was a sensitive matter, and part of their job was to answer it in a way that was responsive enough that the reporter would move on to the next question, but not so responsive that it gave away any intelligence matters. [00:05:28] Speaker 03: Your Honor, again, that the intent not to speak is not a recognized defense under the FOIA doctrine. [00:05:37] Speaker 03: And again, there's no other way to interpret this statement other than to speak on a matter of intelligence. [00:05:43] Speaker 06: and the statement inherently creates a- Why wouldn't the caveat that I cannot address intelligence matters at a bare minimum make clear that the spokesperson was not speaking on behalf of the Bureau of Intelligence and Research? [00:06:01] Speaker 03: because your honor, the deputy spokesperson said plainly the entire, that I can definitively say United States had no advanced knowledge and the deputy spokesperson speaks on behalf of the entire Department of State, the Bureau of Research Intelligence included. [00:06:20] Speaker 03: And so even if your honors don't find this statement to be an official. [00:06:24] Speaker 06: If the spokesperson for the Department of Agriculture was asked by a reporter, [00:06:31] Speaker 06: this exact same question, and the spokesperson of the Department of Agriculture said that same statement about, I can definitively say on behalf of the United States, this didn't happen. [00:06:45] Speaker 06: Would that bind, so this is someone who's not even remotely in the intelligence community, would that bind the intelligence community? [00:06:55] Speaker 03: Absolutely not, Your Honor, and that's specifically not our argument. [00:07:00] Speaker 03: And so the Department of State, the preeminent agency on foreign affairs, [00:07:08] Speaker 03: spoke on behalf of the United States here and the entire United States matter, which is what this whole issues about your honor, your question was about the Department of Agriculture and whether or not we can take [00:07:25] Speaker 03: that statement to speak on matters outside of its purview. [00:07:30] Speaker 03: And I would say absolutely not, Your Honor. [00:07:33] Speaker 03: The four government agencies before this court are members of the IC. [00:07:38] Speaker 03: They're members of the intelligence community. [00:07:39] Speaker 03: They're members that are all bound by the duty to war. [00:07:43] Speaker 06: If someone says I'm speaking on behalf of the United States, that by itself, your argument is, that by itself does not bind the intelligence communities. [00:07:56] Speaker 06: right exactly that not by itself but when you have the speaking on behalf of the united states haven't i was gonna say only binds the intelligence community because a bureau within the state department is part of the intelligence community that's your theory [00:08:13] Speaker 03: No, Your Honor, what we're positing is that when a member of the IC is purporting to speak for the entire United States on a matter directly related to a shared responsibility, a shared duty that not only is a shared duty, but it contemplates information sharing and collaboration. [00:08:33] Speaker 03: And when it's purporting to speak more for just itself, [00:08:36] Speaker 03: Then that statement is of the substance that it's in the spirit of the circuits precedent that to be able to apply this limited application of the public acknowledgement doctrine and we do not, we are not seeking I will say on the record we are not seeking to have this statement apply apply to the entire United States. [00:08:56] Speaker 03: just the icy elements before the court. [00:08:58] Speaker 03: The entire United States is not before the court. [00:09:01] Speaker 03: And so this is a very limited application. [00:09:03] Speaker 03: And I'll also say if this court does not believe that it's an official acknowledgement, it is still contradictory record evidence that the district court should have considered in contemplating the Glomar responses. [00:09:13] Speaker 03: So I can say contradictory record evidence and official public acknowledgement doctrine, because that's the doctrine. [00:09:19] Speaker 03: But I just want to take a step back, Your Honors, and just [00:09:22] Speaker 03: speak in plain language about what the government is asking you all to do here. [00:09:28] Speaker 03: The government has said that to acknowledge there are no responsive documents is to acknowledge an intelligence failure, a gap in intelligence. [00:09:36] Speaker 03: To be clear, the entire world already believes that there is this gap because the Department of State official spokesperson got up before the American people, got up before our allies and our enemies. [00:09:47] Speaker 04: Swain, let me interrupt. [00:09:49] Speaker 04: I think there's something questioned begging about what you're saying that [00:09:52] Speaker 04: The whole world believes it because the State Department person said it but one of the questions in this case for us is, do we actually think that the world believes the State Department speaks for the intelligence community and I thought of a couple of examples, you can kind of take your pick, but. [00:10:09] Speaker 04: In the movie, The Sound of Music, there are six or seven entrapped children. [00:10:14] Speaker 04: Does the youngest Gretel speak for all the family, even though she is a member of the family? [00:10:20] Speaker 04: Duke is in the ACC. [00:10:22] Speaker 04: Does Duke speak for the ACC? [00:10:24] Speaker 04: If someone at Duke says, on behalf of the ACC, we think, et cetera, et cetera, et cetera. [00:10:29] Speaker 04: Or if you're talking about the Corleone crime family, does Fredo speak for the whole family? [00:10:34] Speaker 04: It seems unlikely. [00:10:36] Speaker 03: Well, first of all, your honor, I'm a dookie, so I like that. [00:10:40] Speaker 03: But I will I will address your questions. [00:10:43] Speaker 03: I say absolutely not. [00:10:44] Speaker 03: We're talking about the preeminent agency on foreign affairs. [00:10:48] Speaker 03: That's a member of the intelligence community. [00:10:50] Speaker 03: And they were speaking their statement specifically gets to a matter. [00:10:54] Speaker 03: That means that their statement, the United States had no advanced knowledge would mean that there's no duty to warn for any of the intelligence communities. [00:11:02] Speaker 04: You've said a couple times just the preeminent agency for foreign affairs. [00:11:07] Speaker 04: Would you, and I agree with that, but would you concede that at least the perception of the State Department is that when it comes to the intelligence community, it is not the preeminent member. [00:11:18] Speaker 04: In fact, it's more like the Gretel of the von Trapp family. [00:11:23] Speaker 03: I will say that it is one of the 17 intelligence elements, and the Director of National Intelligence is at the head. [00:11:34] Speaker 03: But to be clear, the harm that the government is contemplating here, and this is why this statement directly contradicts the harm that the government is saying, is that people would know more by acknowledging the existence or nonexistence of documents responsive to [00:11:48] Speaker 03: our request the the American people would somehow know more about the gap in intelligence. [00:11:54] Speaker 03: I'm simply positing that that this statement contradicts that and again you know that is one piece of our argument we again maintain that is official public acknowledgement and I'll also just quickly point out one of the other logical gaps in the declarations that means this court should reverse and remand so the government has before you get to that point just one more question on official acknowledgement which is [00:12:18] Speaker 02: We seem to have precedent pretty strongly confirming Judge Walker's general instinct, which says it doesn't matter whether there are disclaimers or not, one agency of the executive branch can't officially acknowledge for another. [00:12:43] Speaker 02: And [00:12:44] Speaker 02: we applied that principle in Frucione where the acknowledgement just seemed self-evident when OPM said CIA is maintaining the guy's employment records and CIA wanted to glomar the existence or not of the employment relationship. [00:13:06] Speaker 02: And same thing in more as between FBI and CIA, both of whom are under the umbrella of the intelligence community. [00:13:16] Speaker 03: Right, so first, Your Honor, I'd just like to acknowledge I'm running up on my rebuttal time, so I'm happy to continue answering. [00:13:22] Speaker 06: There's no rebuttal time. [00:13:24] Speaker 03: Okay. [00:13:25] Speaker 06: Rebuttal time, don't worry about that. [00:13:27] Speaker 03: Okay, thank you your honors. [00:13:28] Speaker 03: So to address the question. [00:13:31] Speaker 03: We believe that this is a matter of first impression for this court and this court has not made so strong of a statement as to say under absolutely no circumstances can one agency publicly acknowledge [00:13:43] Speaker 03: for another and I will go and answer your specific question about the Frugone case because I think the Frugone cases miles away from this case and so is any other case that this court has tried to has has dealt with a similar issue. [00:13:58] Speaker 03: And so in Frugone, Your Honors, you have the Office of Personnel Management, where if you work for the government, you submit your tax forms, they work out your payment, the Office of Personnel Management, their statement was supposed to apply to the CIA on a matter of national security and national intelligence. [00:14:16] Speaker 03: And so in Flores, that page [00:14:17] Speaker 03: seven, or sorry, Fugone and page 776, the court said, if Fugone were right, however, then other agencies of the executive branch, including those with no duties related to national security, could obligate agencies with responsibility in that sphere to reveal classified information. [00:14:35] Speaker 03: And I respectfully submit that to miles away from the case that we're presented with today, in which, again, it's [00:14:41] Speaker 03: an official statement by the Department of State, the preeminent agency on foreign affairs, speaking as a member, a member of the IC element, speaking on an issue that directly relates to a matter of shared responsibility on which all of the IC elements before the court today are bound, and not just speaking for itself, but for the United States government. [00:15:04] Speaker 03: And so, you know, I think, again, this is a distinct situation from Fragonon. [00:15:09] Speaker 03: It makes sense in a line with [00:15:11] Speaker 03: the courts in align with merino um and in the center for public integrity to apply that reasoning here while our facts may be novel the reasoning that we're asking this court to apply is certainly not um and sorry are you done with that answer did you want to finish yes and i will say that this that's for those reasons this court should reverse and remand to the district court [00:15:37] Speaker 06: I have a quick question before you sum up. [00:15:41] Speaker 06: That is, so the State Department was an original defendant in this case, and then they've dropped out of the case. [00:15:49] Speaker 06: And I was a little confused in the brief as to exactly what happened. [00:15:55] Speaker 06: I think there's a statement they conducted a search. [00:15:59] Speaker 06: Did they actually conduct a search and report the results? [00:16:03] Speaker 03: Yes, your honor. [00:16:04] Speaker 06: So the they conducted the search. [00:16:07] Speaker 06: What was their report on their search results. [00:16:10] Speaker 03: So the Department of State did not issue. [00:16:13] Speaker 03: Importantly, they did not issue a global response to our request that like the other agencies answered and [00:16:21] Speaker 03: documents about the first request, which is not an issue here, and then searched and went through a robust process with us going back and forth on search terms and searched and did not find any responsive records to the issues to the requested issue here. [00:16:37] Speaker 03: And that's exactly what we're asking. [00:16:39] Speaker 06: Hang on, hang on, hang on, hang on. [00:16:41] Speaker 06: I get that. [00:16:42] Speaker 06: And so they reported back that they had no records. [00:16:47] Speaker 06: Do you know if the search [00:16:48] Speaker 06: included the Bureau of Intelligence and Research? [00:16:50] Speaker 06: Was that explicit in their description of the search? [00:16:54] Speaker 03: I will have to go back and look. [00:16:58] Speaker 03: I believe so. [00:16:59] Speaker 03: But I would need to go back and look. [00:17:01] Speaker 03: And that's not in the record before the court. [00:17:04] Speaker 03: So we're happy to submit a letter to the court explaining that. [00:17:08] Speaker 06: But only if there's something actually in the record that would make clear whether they searched the records of the Bureau of Intelligence [00:17:17] Speaker 06: research and then reported back, no documents were found. [00:17:22] Speaker 03: I don't believe that's in the record, Your Honor, because we dismissed before the summary judgment process. [00:17:27] Speaker 03: But again, I think I think highlighting the fact that the Department of State did not issue a Glomar response here, and they did that in part because of the statement that they made, is exactly what we're asking the IC elements to do. [00:17:46] Speaker 02: No, you go ahead. [00:17:48] Speaker 02: Now here, which is that the non global response will reveal either what intelligence was being gathered or where the blind spots are seems a lot more compelling as applied to agencies whose job it is to gather intelligence. [00:18:12] Speaker 02: And it is as applied to the State Department. [00:18:14] Speaker 02: So fact that the State Department didn't Glomar this doesn't seem to move the ball very much for you. [00:18:22] Speaker 03: Right. [00:18:23] Speaker 03: And again, that's the reason why we dismiss the Department of State and the Department of State's, you know, response to our Glomar [00:18:33] Speaker 03: does not impact, again, as you're saying, Judge, does not impact the burden that the government has here before this Court. [00:18:41] Speaker 03: It does not impact their burden of justifying their global responses. [00:18:45] Speaker 03: And I'll just point out a huge logical flaw that requires reverse and remand in their declarations, which is they've said [00:18:52] Speaker 03: that to acknowledge the existence of documents about Mr. Khashoggi would inherently reveal something about intelligence source or intelligence method. [00:19:03] Speaker 03: They have not explained why that's the case. [00:19:06] Speaker 03: And so they have this huge logical hole in their declarations. [00:19:10] Speaker 03: That is, they have not explained why information about Mr. Khashoggi is of the type, is of the nature in which just its mere existence would reveal something about the source. [00:19:21] Speaker 06: You couldn't ask for just any information about Mr. Khashoggi before I request information about threats, a knowledge of threats to Mr. Khashoggi, correct? [00:19:32] Speaker 03: Yes, Your Honor. [00:19:33] Speaker 06: And advanced threats, obviously, before his disappearance. [00:19:37] Speaker 06: So saying, if you had just said, do you have anything on Mr. Khashoggi, that might be a different matter. [00:19:43] Speaker 06: But the question was only whether you had gained information about a threat, and in fact, a threat that you would have a duty [00:19:52] Speaker 06: to warn about, right? [00:19:54] Speaker 06: Like threat of paper cuts or anything or was it a threat? [00:19:59] Speaker 06: I thought it was a stretch that would trigger the duty to warn. [00:20:03] Speaker 03: Right, Your Honor. [00:20:04] Speaker 03: I just want to clarify one point. [00:20:07] Speaker 03: Our FOYA requests were about documents related to the duty to warn Mr. Khashoggi, so that encapsulates a broad swath of documents that could be documents about [00:20:23] Speaker 03: could be documents about threats that would trigger the duty to warn, but it also could be after the fact assessments. [00:20:29] Speaker 03: Or again, you know, as we put forth, it could be employees, you know, maybe speaking about, you know, Mr. Krikoji's case. [00:20:37] Speaker 03: And so that is a gap. [00:20:40] Speaker 06: The test for having intelligence that might trigger the duty to warn is a phrase, I think, is it credible, specific, incredible, or direct and credible? [00:20:53] Speaker 06: Um, there's a test in the, in the, um, the IC requirement duty worn, right? [00:20:59] Speaker 06: You have, that's when you have a duty to warn when you have direct and credible or direct and specific. [00:21:07] Speaker 06: Sorry, I thought I had it. [00:21:09] Speaker 05: I don't have it. [00:21:12] Speaker 05: Well, it has to be credible, obviously. [00:21:16] Speaker 05: But I think it has to be specific and credible. [00:21:18] Speaker 03: Right. [00:21:19] Speaker 03: That is what the directive says, Your Honor. [00:21:21] Speaker 03: But again, I just want to back up here. [00:21:26] Speaker 06: You said, look, there's no reason your FOIA request would necessarily implicate intelligence for human methods. [00:21:34] Speaker 06: But if your FOIA request seeks only information about whether they had credible and specific intelligence, [00:21:42] Speaker 06: How would your foyer crest not necessarily implicate intelligence sources and movements? [00:21:51] Speaker 03: I'll say at the outset that we've requested records about the duty to warn. [00:21:57] Speaker 03: That could be if the duty to warn is triggered and they have that credible response, but it could be also after the fact sort of assessments and discussions about the duty to warn. [00:22:07] Speaker 03: Specifically, I agree, Your Honor, with your statement that if duty to warn records exists, that would, and those records were about contemplating whether or not to warn Mr. Khashoggi, that would require there to be intelligence about threats to Mr. Khashoggi's life. [00:22:25] Speaker 06: However, the government- Any intelligence. [00:22:28] Speaker 06: It has to be credible and specific intelligence in the views of the intelligence agencies. [00:22:33] Speaker 03: Yes, Your Honor. [00:22:34] Speaker 03: But the burden here on the government is to explain why information about threats to Mr. Khashoggi is of the type that it's near existence. [00:22:48] Speaker 03: We're at the GLOMAR stages. [00:22:50] Speaker 03: Near existence would reveal information about the source of that intelligence or the particular method. [00:22:56] Speaker 03: So that's the gap here. [00:22:57] Speaker 03: It's not that it's not that the if documents exist you know we're necessarily chat oh I think we are because we're [00:23:05] Speaker 03: you know, we're saying that there could be after the fact assessments, but we understand that there could be some documents that are about threats to Mr. Khashoggi intelligence about that, but that's not that matter issue here. [00:23:18] Speaker 03: Their burden is simply because we're at the Glomar stage to say the mere existence of that intelligence would reveal something about the source or method of that intelligence in which it was gathered. [00:23:30] Speaker 03: And that is the flaw they have not met and that they have to meet their [00:23:35] Speaker 03: They have to meet their burden and doing that. [00:23:37] Speaker 03: That's their burden under the FOIA law. [00:23:40] Speaker 06: If my colleagues have no further questions, we'll hear from the government and then we'll give you two minutes for rebuttal. [00:23:48] Speaker 00: Thank you, Your Honor. [00:23:49] Speaker 00: Sharon Swingle for the federal government at Belize. [00:23:52] Speaker 00: I'd like to begin where Judge Millett left off, if I may, which is to point the court to the specifics of the FOIA request here, because I think it makes clear why it is that any [00:24:04] Speaker 00: non-glomer response would necessarily implicate intelligence activities, intelligence sources, and methods. [00:24:11] Speaker 00: The requester here sought records concerning the duty to warn under Directive 191 as it relates to Jamal Khashoggi, not the broader kind of request at issue in the open society case, but really specifically tailored to that duty to warn. [00:24:26] Speaker 00: And that directive triggers a duty to warn [00:24:30] Speaker 00: only if an intelligence agency has credible and specific information indicating an impending threat to a specific person of intentional killing, serious bodily injury, or kidnapping. [00:24:43] Speaker 00: So necessarily, therefore, this request to the intelligence agencies would require an agency to confirm or deny the existence of intelligence relating to specific credible intelligence information [00:24:59] Speaker 00: about an imminent threat. [00:25:00] Speaker 00: So intelligence at a point in time about a particular person, Mr. Khashoggi, or individuals who wish to do him harm. [00:25:07] Speaker 00: And the declarations provided ample support, as the district court found, for the agency's Glomar requests here. [00:25:15] Speaker 00: And of course, those declarations are entitled to substantial weight under this court's case law. [00:25:21] Speaker 00: The ODII, I'm sorry? [00:25:23] Speaker 06: Your sentence, I apologize. [00:25:24] Speaker 00: No, no, please, Your Honor. [00:25:26] Speaker 06: Um, can I ask you about the State Department, which apparently did do a search? [00:25:31] Speaker 06: Um, do we know whether that search included the Bureau of Intelligence and Research? [00:25:37] Speaker 00: So I do not know whether the search included that Bureau, and there is nothing in the record about the scope of that search. [00:25:44] Speaker 00: My understanding from the back and forth with counsel is that the government took the position that the press spokesman's person would not preclude a Glomar, but that it was choosing not to Glomar. [00:25:56] Speaker 06: OK. [00:25:58] Speaker 06: And there's no sort of public record documents of what the scope of the FOIA search was? [00:26:02] Speaker 00: Not that I'm aware of, Your Honor. [00:26:04] Speaker 00: And I would just add here, obviously, the plaintiff here has not argued before this court that the State Department's ability to or willingness to search for responsive records somehow bears on the propriety of the GLOMAR responses by the intelligence agencies here. [00:26:22] Speaker 00: So I think in any event, that argument is waived. [00:26:25] Speaker 06: And then I had another, sorry, did you have a question? [00:26:29] Speaker 06: Okay, I'm just trying to understand this. [00:26:32] Speaker 06: I understand Glomar and how it generally applies in the intelligence community. [00:26:36] Speaker 06: And usually it's the whole point of Glomar is we can't say anything one way or the other. [00:26:44] Speaker 06: Armed to intelligence one way or the other, we can say nothing. [00:26:47] Speaker 06: But this arises in the context of a very strange exception and probably one for very good policy reasons. [00:26:55] Speaker 06: And that is the very exception they're triggering here is one where the intelligence communities share intelligence with third parties. [00:27:07] Speaker 06: If the government had or warned under this intelligence directive warned Pat Millett of an impending threat based on credible and specific intelligence, [00:27:24] Speaker 06: And then Pat Millets wanted to file a FOIA request, the same FOIA request here. [00:27:29] Speaker 06: So I've already been given a briefing on this threat to me and on the intelligence, that intelligence has revealed this threat to me. [00:27:38] Speaker 06: And then I file the same FOIA request just to make sure I got everything. [00:27:42] Speaker 00: Could you invoke Glommer? [00:27:45] Speaker 00: I honestly couldn't say, Your Honor. [00:27:47] Speaker 00: I, you know, obviously the duty to warn [00:27:50] Speaker 00: does contemplate some disclosure of limited amounts of information for the protection of individuals, albeit without giving. [00:27:58] Speaker 06: You have no obligation to keep any of it secret. [00:28:00] Speaker 00: I don't know under what circumstances that information sharing is done or whether there are commitments to ensure confidentiality. [00:28:14] Speaker 00: I simply don't know. [00:28:15] Speaker 00: And can I just add, Your Honor, it's also not clear [00:28:21] Speaker 00: You know, if one part of the US government provides information, would that preclude other agencies from invoking GLOMAR? [00:28:29] Speaker 00: Surely not. [00:28:31] Speaker 06: No, but I'm not talking about State Department here. [00:28:32] Speaker 06: I'm assuming the CIA, the Director of National Intelligence, says we've got to warn this person. [00:28:38] Speaker 06: And documents are sought from those offices or agencies. [00:28:41] Speaker 00: Well, and the directive does contemplate that. [00:28:46] Speaker 00: a person's warning might come from an entity other than the intelligence agency that has the credible and specific information. [00:28:53] Speaker 06: I just- Someone in the intelligence agency or the intelligence agency has told someone else about their intelligence and asked them to go tell this other person, all of which seems rather inconsistent with the principle, both of Glomar and the principle of FOIA, that if you tell one person, you're willing to tell one person, you have to tell whoever a FOIA applicant is. [00:29:11] Speaker 06: That's what I'm wrestling with in this case. [00:29:14] Speaker 00: Well, and that's why I would be really hesitant to speak to the hypothetical, because in practice, I just have no knowledge of how those notifications are made. [00:29:23] Speaker 00: I do think, though, that it really highlights the danger of treating disclosure by one government agency as disclosure by any government agency. [00:29:35] Speaker 06: And I think- I'm just saying, if the agency itself has adopted a rule that says, let's imagine they just sort of adopted a rule that says, [00:29:43] Speaker 06: We don't share intelligence sources methods with anybody unless we think an individual has been threatened, at which point we will share it with them. [00:29:55] Speaker 06: If that was sort of, here I know it's a policy and they could decide not to share it, there's a standard in there for it, but if they just had a regulation that said, or a rule that said without exceptions, if we get intelligence information on a threat to an individual, third party outside the government, we will share it with them. [00:30:13] Speaker 06: You couldn't do glomers in those circumstances. [00:30:16] Speaker 00: Well, I think we still could under exemption three, because you're talking about the type of information that is also protected from disclosure by statute, right? [00:30:26] Speaker 00: Regardless of any showing of harm to the national security. [00:30:29] Speaker 06: It's protected from unauthorized disclosures. [00:30:32] Speaker 00: Correct, Your Honor. [00:30:33] Speaker 06: What I'm noticing here is a rule that authorizes it in certain circumstances. [00:30:38] Speaker 00: Well, and I think [00:30:39] Speaker 00: Obviously, the rule under the FOIA is disclosure to one person is disclosure to anyone, but I wouldn't necessarily transport that rule wholesale to disclosures made under Directive 191, where there is also, of course, a judgment made that disclosure to the threatened individual would not improperly undermine or disclose sensitive national security [00:31:04] Speaker 06: sources. [00:31:05] Speaker 06: That's exactly my point. [00:31:07] Speaker 06: You have a system of a rule in here or directive in here. [00:31:12] Speaker 06: But if I have my hypothetical, it gets turned into a rule that says this stuff can be turned over in a particular circumstance, it can be acknowledged and disclosed. [00:31:22] Speaker 06: The existence of intelligence can be acknowledged and disclosed. [00:31:28] Speaker 06: I've never, I can't think of any situation in which Glomar has applied where the agency says [00:31:34] Speaker 06: But in our discretion, we've adopted a rule that in a particular circumstances, we will in fact acknowledge and disclose. [00:31:42] Speaker 00: I really want to resist that suggestion, Judge Mallette, because in fact, this court's case law, there are many, many, many cases in which the government initially withholds classified or statutorily protected information, and then as a matter of policy, makes a subsequent judgment that it can and will release [00:32:03] Speaker 00: portions of that information. [00:32:05] Speaker 06: That's a completely different ordering. [00:32:07] Speaker 06: My ordering is they've made this disclosure in my hypothetical. [00:32:12] Speaker 06: They've actually made the disclosure before the assertion of privilege under Glomar. [00:32:17] Speaker 06: Your response was we assert it and then we decide not to continue with it, maybe discretionary judgment not to do it. [00:32:24] Speaker 06: I'm in the reverse order. [00:32:25] Speaker 06: You've made a disclosure in my hypothetical to a third party and yet you're still asserting Glomar. [00:32:33] Speaker 00: I would look back to the line of cases in which this court initially recognized the Glomar doctrine. [00:32:38] Speaker 00: There were multiple cases involving multiple FOIA requesters looking for information about the project and the CIA's involvement in that project. [00:32:47] Speaker 00: And obviously the government ultimately made extensive disclosures. [00:32:52] Speaker 00: I'm not aware of the precise timing, but obviously this court held repeatedly that the government should not be penalized for its willingness to provide [00:33:03] Speaker 00: perhaps as a matter of discretion, additional transparency into secret government operations. [00:33:09] Speaker 00: The court recognized that principle in Larson. [00:33:11] Speaker 06: People there that the exact same information that the government had discretion there with discretion chose to disclose would not penalize its decision not to disclose under FOIA? [00:33:23] Speaker 06: I just don't think it's a fit what you're talking about. [00:33:26] Speaker 00: With all due respect, Judge Mallette, obviously no notification here has been made. [00:33:31] Speaker 00: And so this is [00:33:34] Speaker 00: This is not the facts as it comes before this court. [00:33:38] Speaker 06: No, but what comes before this court is your directive and your simultaneous presence of this directive and a glomer assertion. [00:33:45] Speaker 06: That's what I'm questioning you about. [00:33:49] Speaker 00: And again, because the directive imposes no hard and fast requirement, no matter the threat to national security, to warn, I'm struggling to understand exactly why you think [00:34:04] Speaker 00: that the existence of a conditioned obligation which is intended to nevertheless sufficiently protect intelligence sources and methods would leave the government unable to invoke GLOMAR. [00:34:16] Speaker 06: I'll let you move on, but that's a caveat that's not in this directive. [00:34:19] Speaker 06: There's nothing in this directive that says that the disclosure will be done in a way that will condition the protection of intelligence sources and methods in that there's nothing that says that [00:34:31] Speaker 06: we will obligate the person who receives the warning to say nothing. [00:34:36] Speaker 06: That's all. [00:34:37] Speaker 06: But anyhow. [00:34:40] Speaker 00: And I apologize. [00:34:40] Speaker 00: I was not precise, Your Honor. [00:34:42] Speaker 00: My point is that the obligation to warn in the directive includes exceptions where disclosure would improperly compromise sensitive national intelligence sources or methods or foreign government sources and methods. [00:34:54] Speaker 00: That's all. [00:34:56] Speaker 04: Can I go back to a question that Judge Millett was asking about the [00:34:59] Speaker 04: the request to the State Department, and maybe we can kind of logic our way through, maybe not, but if the FOIA requester asked for responsive documents from the State Department, which I don't know why they wouldn't have, and then the State Department provided or didn't provide documents and said, like, this is as much as the State Department is willing to give you, is able to give you, and it didn't, if the State Department's, [00:35:30] Speaker 04: I guess, I can't, would it have been legal for the State Department to not tell the plaintiff here? [00:35:37] Speaker 04: We searched everything except our intelligence office, but we didn't search that because you're not allowed to have it. [00:35:44] Speaker 00: In point of fact, my understanding is that the State Department took the position that while it's press spokesman statement, and frankly, to my mind, it's an extremely ambiguous [00:35:57] Speaker 00: an internally incoherent statement that doesn't disclose anything, but that that statement didn't preclude it from invoking a Glomar, but that it chose not to. [00:36:05] Speaker 04: Okay, but that's not my question. [00:36:08] Speaker 04: And I'm sorry, I phrased it in a very confusing way. [00:36:11] Speaker 04: Let me try again. [00:36:13] Speaker 04: The plaintiff here, Knight First Amendment, goes to the State Department and says, I want the following records. [00:36:24] Speaker 04: And the State Department doesn't invoke Glomar. [00:36:27] Speaker 04: Instead, the State Department provides them with some records, or the State Department says, we're not providing you with any records, and here's why. [00:36:39] Speaker 04: When the State Department does that, wouldn't the State Department have had an obligation to tell the plaintiff, we are not looking for documents in our intelligence office? [00:36:56] Speaker 04: if in fact the State Department did not look for documents in its intelligence office. [00:37:04] Speaker 00: I think that State Department would have had an obligation to complete a comprehensive search for every place reasonably likely to have responsive records, not knowing the scope of the actual search in question, which I believe was in part negotiated between the parties. [00:37:20] Speaker 00: I can't speak to more than that. [00:37:22] Speaker 04: No, that's responsive to my question. [00:37:24] Speaker 04: Thank you. [00:37:26] Speaker 00: I do think, though, that the fact that the State Department might have come back and said, we have no responsive documents, sheds essentially no light on the validity. [00:37:35] Speaker 00: And again, putting to the side the fact that they have not argued this, that the plaintiff has not argued this, that it sheds no light on the validity of the GLOMAR as to the other agencies, because there would be no reason to think that the State Department would have any knowledge of the existence or nonexistence of responsive documents as to the other agencies. [00:37:55] Speaker 00: Turning to those, I'm sorry, Judge Katz? [00:37:58] Speaker 02: On official acknowledgement, Moreno seems to stand for the proposition that one component of an agency can officially bind and for official acknowledgement purposes can bind another component of an agency. [00:38:20] Speaker 02: Why shouldn't we treat the intelligence community as an agency for these purposes? [00:38:30] Speaker 02: It's a pretty well-defined group. [00:38:36] Speaker 02: People think of it as a substantial degree of coordination. [00:38:40] Speaker 02: It's a lot more than just some ad hoc task force. [00:38:46] Speaker 02: Why shouldn't we treat it that way? [00:38:50] Speaker 00: Well, I have a couple of answers, Judge Katz. [00:38:53] Speaker 00: First, I think it's just flatly inconsistent with this court's case law. [00:38:56] Speaker 00: And more, as you pointed out in your earlier questioning, the statement by the FBI was deemed not to be an official disclosure on the part of the CIA, and obviously both the FBI and the CIA. [00:39:08] Speaker 02: True, but without expressly addressing this complication for your position, the possible [00:39:18] Speaker 00: Well, second, I think the argument just proves too much and really is inconsistent with the way this court understands official disclosure. [00:39:26] Speaker 00: True, the intelligence community does in some way coordinate their activities, but the exact same executive order that the requester points to here, Executive Order 12333, also directs every executive branch agency [00:39:45] Speaker 00: to coordinate and work cooperatively with the CIA to provide national security information intelligence to the CIA. [00:39:54] Speaker 00: And obviously all executive branch agencies, or at least, you know, perhaps excluding the independent agencies, all other executive branch agencies are intended to work cooperatively under the auspices of our unitary executive, the president, [00:40:12] Speaker 00: Presumably, with the president playing that coordinating function as mediated through the National Security Council, we wouldn't think that any executive branch agency, or at least this court has consistently held, that any executive branch agency can't officially acknowledge information on behalf of any other. [00:40:32] Speaker 00: And yet, that same logic would seem to flow, given the president's sort of [00:40:37] Speaker 02: Yeah, but that I mean, that's one level of general generality up from where we are with. [00:40:45] Speaker 00: I don't believe so, Your Honor. [00:40:46] Speaker 02: Again, you know, hire the entire unitary part of the executive branch. [00:40:53] Speaker 00: Well, that the sort of coordinated role that the request you're here points to is either under 12, triple three, which does not [00:41:04] Speaker 00: oblige one intelligence agency to share information or, you know, make sure that every position it takes is consistent with that of every other IC. [00:41:15] Speaker 00: It does provide for the ODNI to mediate certain types of disputes, but it doesn't have some kind of formal coordinated single role that they play in tandem. [00:41:27] Speaker 00: any more than the fact that the NSC might mediate a dispute between other executive agencies. [00:41:32] Speaker 06: Was the director of national intelligence in this intelligence community? [00:41:38] Speaker 00: The ODNI plays a coordinating role, yes. [00:41:42] Speaker 06: So if the director of national intelligence made the disclosure, made a disclosure of credible and specific intelligence information, made publicly a disclosure. [00:41:55] Speaker 06: terrible and specific intelligence information about an individual. [00:41:58] Speaker 06: Would that find the CIA? [00:42:01] Speaker 00: I think that would be a harder question, particularly as related to directive 191. [00:42:06] Speaker 06: Yes, that's why I'm asking the question. [00:42:10] Speaker 06: So if I can have this sort of networking this relationship here, I get your argument about the State Department. [00:42:17] Speaker 06: I'm trying to just figure out whether [00:42:20] Speaker 06: within this network there is at any point someone who would have enough authority to waive it for other members. [00:42:27] Speaker 00: So as it relates to Directive 191, which is what I understand your question to be focused on, Directive 191 envisions that the ODNI will resolve any interagency disagreement about providing a warning. [00:42:44] Speaker 00: So the fact that the ODNI had- Isn't that different? [00:42:49] Speaker 06: Because then it could still be that then the individual agency would still be in charge of making the warning. [00:42:55] Speaker 06: I'm asking a different question. [00:42:56] Speaker 06: And that is within this intelligence community, if the DNI just made a disclosure, if it helps you to get away from the scenario, that's fine. [00:43:03] Speaker 06: The DNI makes an intelligence disclosure that implicates the type of intelligence that both the NSA and the CIA would also be involved in collecting. [00:43:14] Speaker 06: So the DNI makes a disclosure, an authorized public disclosure of specific intelligence information. [00:43:22] Speaker 06: And the CIA has that same specific intelligence information. [00:43:27] Speaker 06: Could it still do a glomar? [00:43:28] Speaker 00: I think it would really turn on the facts, Your Honor, but Judge Millett, just to- Big information by both of them. [00:43:35] Speaker 06: Does the DNI have the ability? [00:43:36] Speaker 06: I get the argument about State Department. [00:43:38] Speaker 06: I'm just saying, does the DNI, is there anybody within this intelligence group? [00:43:41] Speaker 06: And I'm starting with the DNI. [00:43:43] Speaker 06: have the ability by their disclosures to bind in the same way that an FBI disclosure could bind another entity that's a part of the Justice Department. [00:43:56] Speaker 00: And I'm not trying to be difficult, Judge Millett. [00:44:00] Speaker 00: I think the resistance I'm having is that this court has repeatedly recognized that the fact that a particular IC entity is operationally engaged in a region [00:44:13] Speaker 00: a foreign government in particular intelligence sources and methods might itself be independently significant. [00:44:21] Speaker 00: And so, you know, if the ODNI discloses intelligence information, but not the particular government entity that might be involved in collecting that intelligence agency, would that preclude, for example, the CIA from [00:44:37] Speaker 00: invoking a Glomar, I don't believe so, if the CIA could. [00:44:40] Speaker 06: There's no sense of any additional particularization, because essentially what happens in your scenario is there's still an extra bit of intelligence information that hasn't been disclosed by the DNI doing it. [00:44:51] Speaker 06: That's your theory, that who is doing the collecting could itself be protected if there is no additional security information. [00:45:04] Speaker 00: I'm sorry, Your Honor. [00:45:06] Speaker 06: I'm just trying to clarify a question because I appreciate your response. [00:45:09] Speaker 06: But if there is no increase, there's no change in what the protected information is between what the DNI is holding and the CIA is holding and the DNI's disclosure disclosed who has the information in the government. [00:45:22] Speaker 06: Would that preclude the CIA from doing that? [00:45:24] Speaker 00: So I think the concern I have is I don't think the ODNI stands in the place of kind of a parent entity. [00:45:33] Speaker 00: in the same way that, for example, the president stands as a parent entity for the CIA. [00:45:39] Speaker 00: I think the ODNI plays a coordinating role, but the CIA does not directly report to the ODNI in the way that this court envisioned, for example, in the ACLU versus CIA case, where the court was talking about statements by the president, the president's senior counterterrorism director, [00:46:01] Speaker 00: at the instruction of the president and the CIA director. [00:46:05] Speaker 00: And the court there envisioned that it would be either an authorized representative of the agency or a parent above the agency. [00:46:14] Speaker 00: And I think the ODNI stands in a somewhat different role here from the president or the senior counterterrorism advisor there. [00:46:25] Speaker 06: My colleagues have any further questions? [00:46:28] Speaker 06: OK. [00:46:28] Speaker 00: Thank you. [00:46:29] Speaker 00: Ask the court to affirm. [00:46:30] Speaker 00: Thank you, Your Honors. [00:46:31] Speaker 06: We'll give you two minutes for everybody. [00:46:34] Speaker 03: Thank you. [00:46:35] Speaker 03: I'll just tick through some of the government argument. [00:46:38] Speaker 03: Some of your question so Judge Malik to your question about the way that duty to warn documents come about our specific request is about records concerning the duty to warn [00:46:50] Speaker 03: under Directive 191 and it wasn't as specific as to say records showing whether or not they warned Mr. Khashoggi so that could encapsulate after the fact sort of assessments or things. [00:47:03] Speaker 03: Also the Your Honor's line of questioning the court's line of questioning about [00:47:11] Speaker 03: The bearing of the state searches on the on the IC elements before the court. [00:47:17] Speaker 03: I maintain that it has no bearing on the government's burden to justify its global response here. [00:47:23] Speaker 03: What what the searches that the Department of State did, because the Department of State specifically did not issue a global response. [00:47:30] Speaker 03: It acknowledges they had no documents here. [00:47:33] Speaker 03: They have issued a global response, so we're just asking them to do the bare minimum that acknowledge whether or not there are documents. [00:47:39] Speaker 03: And I believe the government has said in their statement that just now in the argument that there was no notification has been made so that seems to be [00:47:53] Speaker 03: an admission that they did not warn Mr. Khashoggi. [00:47:57] Speaker 03: I'll also say just in the brief seconds that I have, we believe that this case requires reverse and remand instructions for the IC elements to acknowledge the existence or non-existence of documents. [00:48:10] Speaker 03: or at least for them to meet their burden and submit more detailed declarations that could be reviewed in camera if necessary. [00:48:19] Speaker 03: If it has sensitive information, that's an option that the court can totally take. [00:48:24] Speaker 03: Alternatively, this court at least could just reverse and remand to the district court, saying district court under the summary judgment standard, you should have considered all of this contradictory evidence on the record and you should do that on remand. [00:48:38] Speaker 03: There's just too much [00:48:40] Speaker 03: use the technical term too much fishy going on for the court for these global our justifications to stand here. [00:48:48] Speaker 03: And that's why we think this case requires reverse and remand. [00:48:52] Speaker 06: Thank you very much, counsel. [00:48:53] Speaker 06: The case is submitted.