[00:00:00] Speaker 04: Case number 23.5118, James Connell III, Appellant versus Central Intelligence Agency. [00:00:07] Speaker 04: Mr. Kaufman for the appellant, Mr. Pullman for the appellee. [00:00:13] Speaker 03: Thank you, Your Honor. [00:00:14] Speaker 03: Good morning. [00:00:15] Speaker 03: Brett Max Kaufman for the plaintiff appellant, James Connell. [00:00:19] Speaker 03: In light of all the record evidence in this case, the CIA's Glomar response is simply not credible. [00:00:25] Speaker 03: In its brief, the government hardly engages with this evidence. [00:00:29] Speaker 03: And in its declaration, it doesn't do so at all. [00:00:32] Speaker 03: Instead, the government takes the position that this court has already held by implication that the only way to defeat a global response is through the waiver-based official acknowledgment doctrine. [00:00:43] Speaker 03: But this court's cases do not say that the CIA always wins unless it makes a waiver. [00:00:49] Speaker 03: Instead, they say that at the summary judgment stage, contrary record evidence can defeat the logic and plausibility of a government FOIA response. [00:00:57] Speaker 01: But do you say that essentially the CIA's declaration has issues because it doesn't explain how the information would be respecting to intelligence or any type of national security issue? [00:01:12] Speaker 03: Well, we don't take issue that the broad topic of the request could be protected under exemptions one or three. [00:01:19] Speaker 03: But I do think that the declaration is deficient in a lot of ways. [00:01:23] Speaker 03: It does not really explain at all how what will be revealed by it acknowledging the existence of records will actually be revealed. [00:01:33] Speaker 03: But I think that the reams of evidence here mean that the government shouldn't really get a second chance to explain that, because it's just simply not credible that they could defend that secret. [00:01:46] Speaker 03: That's the principle that the Second Circuit applied in Flores, that relevant evidence counts in a FOIA case. [00:01:53] Speaker 03: And it's not limited only to evidence that meets the official acknowledgment test, which again, is a waiver doctrine. [00:02:00] Speaker 03: To reject that principle would be essentially to rewrite the FOIA statute. [00:02:04] Speaker 03: It would be to rewrite the summary judgment standards that apply to all civil litigation. [00:02:08] Speaker 03: And the CIA's argument has no limits. [00:02:11] Speaker 03: Its position is that no matter how much relevant evidence there is in a case, [00:02:15] Speaker 03: A court must bury its head in the sand and refuse to consider anything that doesn't come from the agency itself. [00:02:22] Speaker 03: But as Flores explains, that position makes no sense. [00:02:26] Speaker 03: In this case, the evidence overwhelmingly shows the CIA has additional records that are responsive to Mr. Connell's request. [00:02:33] Speaker 03: And when plausible deniability becomes implausible, like in this case, the court should reject the agency's Walmart. [00:02:41] Speaker 03: Turning to this principle theory, for more than 40 years, this court has held that government agencies are not entitled to summary judgment in FOIA cases if their affidavits are called into question by contradictory evidence in the record. [00:02:54] Speaker 03: As this court said in Gardels, courts must consider, quote, whether on the whole record, the agency's judgment objectively survives the test of good faith, specificity, and plausibility. [00:03:06] Speaker 03: In other words, the question is, with all the evidence considered, is the agency's justification for secrecy logical or plausible? [00:03:14] Speaker 03: Or, as the court put it in Gardels, does it make good sense? [00:03:19] Speaker 03: Just like in other civil cases, evidence is relevant in a FOIA case if it has probative value to the ultimate question. [00:03:25] Speaker 03: Now, critically, of course, the court might weigh evidence from different sources differently in different cases. [00:03:33] Speaker 03: But the key point and the point of Flores is that it must consider all of it, not just evidence that is provided by the very same agency that's arguing for secrecy. [00:03:44] Speaker 03: As the Second Circuit put it, [00:03:45] Speaker 03: The contrary result would be a court deliberately deliberately burying its head in the sand to relevant and contradictory record record evidence solely because that evidence does not come from the very same agency seeking to assert a global response in order to avoid the strictures of FOIA. [00:04:01] Speaker 02: So what about [00:04:04] Speaker 02: I appreciate the argument. [00:04:07] Speaker 02: We have these cases, Furgone, Moore, and others that essentially say, it seems like the analogy would be if the FBI had said over and over, the CIA had operational control over these 14 detainees at this exact time period at Guantanamo Bay. [00:04:22] Speaker 02: Furgone would say, CIA can still issue a Glomar response. [00:04:28] Speaker 02: I'm just not sure how this case is distinguishable from that principle, which does seem pretty well-established in our case. [00:04:37] Speaker 03: Yeah, it's a good question. [00:04:38] Speaker 03: So Your Honor, Frugone, I think, doesn't quite go that far. [00:04:42] Speaker 03: So Frugone involves, of course, the OPM letter and CIA employment. [00:04:47] Speaker 03: And a FOIA request about a person who claimed they were a CIA agent. [00:04:52] Speaker 03: And they sought to use the letter from OPM to say, [00:04:56] Speaker 03: to defeat the CIA's Lamar response. [00:04:59] Speaker 03: But the court really did base its holding in a waiver. [00:05:04] Speaker 03: The last line of the opinion is, we hold that only the CIA can waive its right to assert an exemption to the FOIA. [00:05:12] Speaker 03: So there was a point at which this court started talking about [00:05:18] Speaker 03: official acknowledgment and the defeat of FOIA affidavits in terms of waiver. [00:05:23] Speaker 03: And that really started with Fitzgibbon in 1990. [00:05:27] Speaker 03: And since then, the court and litigants have pushed the argument in those terms. [00:05:31] Speaker 03: And of course, waiver is a distinct concept from regular summary judgment standard. [00:05:36] Speaker 03: It's about whether an agency took an affirmative act or set an affirmative thing to no longer be able to rely on a FOIA exemption in the first place. [00:05:46] Speaker 02: But our argument and the argument that the floor has court except seems like that just becomes the point of my first question is it seems like your conception Just becomes an end run back door around those waiver holdings because your whole point is if every newspaper in the world is saying and or even another agency and Congress are saying CIA is doing this but the CIA hasn't [00:06:11] Speaker 02: If we think about it as waivers, CIA wins, and we think about it your way, CIA loses. [00:06:17] Speaker 03: Well, I don't think it's quite that simple, Your Honor, because one, we're not talking about newspaper articles. [00:06:23] Speaker 03: And if we came into court, in this case or any other, and we cited the New York Times citing anonymous sources, and we said, look, it's obviously true. [00:06:31] Speaker 03: Both the Post and the Times are saying it's true. [00:06:33] Speaker 03: It must be true. [00:06:37] Speaker 03: Appreciate it. [00:06:39] Speaker 03: That would be a case where the FBI and Congress. [00:06:42] Speaker 03: Well, I think Congress is a good example. [00:06:44] Speaker 03: So if you look at military audit project, there was a congressional report put into evidence. [00:06:51] Speaker 03: And the court never mentioned waiver in that case. [00:06:54] Speaker 03: And it's sort of considered, how weighty is this? [00:06:57] Speaker 03: And in that case, the CIA, which had eight affidavits in that case, one of them actually took on the Senate report. [00:07:03] Speaker 03: And it said, look, read the Senate report. [00:07:06] Speaker 03: It's just based on anonymous sources and newspapers. [00:07:09] Speaker 03: It's a committee reading the newspaper. [00:07:11] Speaker 03: So that's the kind of evidence that a district court judge could say, [00:07:15] Speaker 03: that has no weight, especially against a CIA claim of harm or something like that. [00:07:20] Speaker 03: Compare that to this case, where we have the definitive account of the government's torture program in a Senate report, where there was process involved that allowed the CIA to respond to the report substantively, underwent a declassification review headed by the president of the United States, [00:07:39] Speaker 03: So no word was was released to the public through 6000 pages that are still redacted. [00:07:45] Speaker 03: So we're just talking about an executive summary. [00:07:48] Speaker 03: So the credibility of that kind of document is leagues away from what was at issue in military audit project. [00:07:54] Speaker 03: There was a Senate report also at issue in Salisbury. [00:07:57] Speaker 03: And it makes sense that this court and the district courts in those cases said, compared with what the CIA claims and defends its response on, those things don't defeat it. [00:08:07] Speaker 03: But in this case, I think you can't look at the Senate report without understanding that it is an authoritative document. [00:08:14] Speaker 03: It cites documents that, for the proposition that the CIA had some measure of operational control, the report cites documents that the CIA produced. [00:08:23] Speaker 03: So the CIA in this litigation has said, [00:08:26] Speaker 03: Yeah, whatever the report cites, we're actually giving you those things because they do relate to our operational control. [00:08:33] Speaker 01: And how does the Zubeda case relate from the Supreme Court? [00:08:38] Speaker 03: Zubeda relates to our official acknowledgment argument, which is, again, I just want to emphasize, distinct from this argument that we make based on Flores. [00:08:48] Speaker 03: But the relevance of that case, I think, is that in that case, [00:08:54] Speaker 03: That case, of course, involved a state secrets claim the government made and the individuals that were asked to give testimony that the government got in the way of in that case were former contractors of the CIA. [00:09:08] Speaker 03: So one really significant piece of that is that they were former contractors because under [00:09:13] Speaker 03: this court's cases and others in the Second Circuit. [00:09:17] Speaker 03: As a general rule, former officials cannot acknowledge on behalf of an agency. [00:09:22] Speaker 03: That's almost textbook official acknowledgement while at this point. [00:09:26] Speaker 03: But the Zubeda court said, actually, given the circumstances here, that doesn't make sense. [00:09:32] Speaker 03: These guys were central participants in the events they're being asked about. [00:09:37] Speaker 03: And therefore, they can acknowledge for the CIA in this instance. [00:09:41] Speaker 03: And it was the government, of course, in that case, making the claim that they could and that their acknowledgement would be tantamount to an official acknowledgement by the CIA itself. [00:09:50] Speaker 03: And as we point out in the briefing, that case is actually consistent with the reasoning of this court's case in Amazigh on where [00:09:59] Speaker 03: The court held that a lawyer for a detainee would be officially acknowledging information on behalf of the government if they went out to a foreign government and revealed information that they had acquired during litigation. [00:10:11] Speaker 03: A very sensible ruling, and one that makes clear that the official acknowledgment doctrine is not as strict as perhaps some of the cases and some of the government's arguments make it sound. [00:10:24] Speaker 01: Do you actually get any more documents than what you already have if we ruled for you? [00:10:30] Speaker 03: Well, unfortunately, that's one of the pitfalls of this kind of litigation, Your Honor, as the most famous example being ACLU-VCIA, where, in a great opinion by this court, the Glomar response was rejected. [00:10:43] Speaker 03: And we went back, and we never saw a single document after two more years of litigation. [00:10:47] Speaker 03: But the government did acknowledge the existence of hundreds of hundreds of documents. [00:10:51] Speaker 03: And it described them. [00:10:53] Speaker 03: So I think that shows the importance of actually holding the government's feet to its fire when it issues a Glomar response. [00:11:00] Speaker 03: Simply because down the road, we may not see the documents we're actually interested in seeing doesn't mean that the government gets to hide behind a Glomar response and not even engage in the normal fire process. [00:11:12] Speaker 03: That really makes no sense. [00:11:14] Speaker 04: Let me just ask you to clarify something regarding the Senate Select Committee report. [00:11:22] Speaker 04: On your second, I guess more refined request or something, the CIA gave you the itinerary for a visit or a proposal. [00:11:33] Speaker 04: And what was the distinction that caused them to release that but not anything else? [00:11:40] Speaker 03: I don't know, Your Honor. [00:11:40] Speaker 03: You're going to have to ask the CIA about that. [00:11:43] Speaker 04: There was no explanation. [00:11:45] Speaker 03: Not that I'm aware of. [00:11:47] Speaker 03: We didn't litigate the case in the district court, so it's possible somewhere down there there is an explanation. [00:11:51] Speaker 03: But I don't believe we got an explanation. [00:11:54] Speaker 03: And in my experience, you don't get much of an explanation when they re-release a document. [00:11:58] Speaker 03: Simply just give it to you. [00:11:59] Speaker 04: So the report, what was in the report that would relate to [00:12:03] Speaker 04: You're familiar with the report? [00:12:05] Speaker 04: The Senate report? [00:12:06] Speaker 04: Yes. [00:12:06] Speaker 04: It would relate to the proposed itinerary. [00:12:11] Speaker 04: Was it mentioned in the report? [00:12:12] Speaker 04: Was it described? [00:12:13] Speaker 03: I believe the citation in the sentence that says the CIA had operational control during this time, it cites to a background memo which also had an itinerary next to it or combined with it. [00:12:26] Speaker 03: And so that is the document cited for the very proposition that the CIA did have operational control. [00:12:32] Speaker 03: But I think it's a good point to actually look at the release document, because on its face, it doesn't necessarily point to operational control. [00:12:44] Speaker 03: There's a lot of redactions in there. [00:12:46] Speaker 03: And I think that's why it's significant that the CIA acknowledged that it was related to its operational control, not operational control generally, but responsive to Mr. Connell's request about the CIA's operation control. [00:13:00] Speaker 03: There is also the memorandum of agreement, which is JA 417. [00:13:05] Speaker 03: That document, the Camp 7 commander during the military commissions testified that that was a document that governed Camp 7. [00:13:13] Speaker 03: And that document in unredacted text says that it sets out the duties and responsibilities of the two agencies, DOD and CIA, signed by the directors, [00:13:22] Speaker 03: that concern the government's detention of terrorism suspects at Camp 7. [00:13:27] Speaker 02: Yeah, I think what the MOA says is that from September 1, 2006 forward, the beginning date of your request, the detainees are DOD's responsibility. [00:13:39] Speaker 03: Well, it does say that in some terms in the unredacted text. [00:13:43] Speaker 03: Of course, there's a lot unredacted. [00:13:46] Speaker 03: There are other responsibilities including communications with Congress. [00:13:51] Speaker 03: And this goes to our point about the breadth of the term operational control. [00:13:56] Speaker 03: The government has treated it all along like an on-off switch. [00:14:00] Speaker 03: Either the CIA had operational control or it did not. [00:14:04] Speaker 03: I don't, we don't think that that is the most sensible way to understand that term. [00:14:07] Speaker 03: I mean, just think about if someone asked who has operational control of this courtroom? [00:14:12] Speaker 03: Is it your honor? [00:14:13] Speaker 03: Is it the clerk? [00:14:13] Speaker 03: Is it the marshals in the back? [00:14:15] Speaker 03: Is it the administrative office? [00:14:16] Speaker 03: It's the clerk. [00:14:19] Speaker 03: But I think we would all say that some measure of operational control belongs to everybody. [00:14:24] Speaker 03: And I think that's the most sensible way to read Mr. Connell's request, not as the government wants to, as an on-off switch that means that the CIA either does or does not have that control. [00:14:37] Speaker 03: And once you accept that, the idea that the CIA has absolutely no more documents responsive to this request is just simply not credible. [00:14:45] Speaker 03: It's just not a credible response given the evidence. [00:14:49] Speaker 04: No. [00:14:51] Speaker 04: But they didn't say they'd have no more documents. [00:14:53] Speaker 04: That's not the issue, right? [00:14:54] Speaker 03: Well, if they do have documents, I think this is ACLUV CIA. [00:14:58] Speaker 03: If it's clear from the record that they do have additional documents, the Sklomar response cannot be sustained. [00:15:03] Speaker 03: And to that point, though, during the military commissions, testimony was elicited that from a DOD, from a Camp 7 commander, [00:15:14] Speaker 03: that the DOD had operational control and the CIA did not. [00:15:19] Speaker 03: But that's an interesting response, given Glomar's response, because Glomar is supposed to protect both sides of that secret. [00:15:24] Speaker 03: So either the Camp 7 commander is wrong and lying that there was no operational control, and the CIA should just say, we had none and we have no records, or we're correct. [00:15:35] Speaker 03: And that was simply an interpretation of operational control that is different from the most sensible reading of it. [00:15:41] Speaker 03: Well, it's coming from a different region. [00:15:44] Speaker 03: Absolutely, we understand that and we're not relying... We should very well explain a different understanding of what operational control is. [00:15:52] Speaker 03: It could, and I think that actually makes sense given our theory that operational control is a broad term. [00:15:59] Speaker 02: But back to the... How do we adjudicate the right way to think about the request, right? [00:16:04] Speaker 02: So it sounds like you want us to read it to mean basically any documents about CIA's connection with Camp Seven during this time period. [00:16:13] Speaker 02: It's not really quite what it says. [00:16:15] Speaker 02: And it seems like the government interpreted it far more narrowly about, do you have documents about the nature and extent of CIA's operational? [00:16:24] Speaker 02: And what they're saying is, if we respond to that, that's going to reveal something that's currently classified, which is whether or not we have such a connection. [00:16:33] Speaker 03: Right. [00:16:33] Speaker 03: Well, one, I think, just first principles, the requester in FOIA is in control of the request. [00:16:40] Speaker 03: So I think that's point number one. [00:16:42] Speaker 03: Number two, of course, now the CIA is saying X or Y will be revealed. [00:16:47] Speaker 03: And it has such a narrow meaning that there's this great secret that's going to be revealed if we say we have more documents. [00:16:53] Speaker 03: But if you actually look at the declaration in this case, they say exactly what we're saying. [00:16:57] Speaker 03: They say Glomar kept a secret, kept secret a, quote, potential classified connection. [00:17:02] Speaker 03: That's a J43 paragraph 26. [00:17:05] Speaker 03: At paragraph 20 in J4041, the CIA searched for records about an unclassified, quote, relationship. [00:17:12] Speaker 03: with Camp 7. [00:17:14] Speaker 03: So our understanding of the term is confirmed by how they treated the request behind closed doors. [00:17:20] Speaker 03: So now they're in litigation, and they say that the sky is going to fall if they acknowledge they have records. [00:17:25] Speaker 02: It's a little squirrely, but I think the declaration never says connection with Camp 7. [00:17:30] Speaker 02: It repeatedly says connection with the subject matter of the FOIA request, which is not exactly illuminating. [00:17:38] Speaker 02: But it's not as favorable to you as what you just described, I don't think. [00:17:41] Speaker 03: Fair enough. [00:17:42] Speaker 03: I read it differently. [00:17:43] Speaker 03: I mean, they say the connection with the subject of the request, which is CIA operational control at Camp 7. [00:17:48] Speaker 03: I'll take a little squirrely rather than just squirrely. [00:17:53] Speaker 03: So I think right there you have the CIA understanding it in normal terms. [00:17:58] Speaker 03: This just confirms the ordinary reading of the request. [00:18:00] Speaker 03: It's not a real stretch. [00:18:03] Speaker 03: It's not trying to pick and choose things that the CIA said that help us. [00:18:06] Speaker 03: It's literally how they handle the request once they took it in and had to go about the normal part of FOIA, which is figure out what records this person is asking for and go find them within the agency. [00:18:18] Speaker 01: I understand that under the ACLU case versus CIA, that they have three options with respect to releasing them, doing the bond index or doing the no number, no list. [00:18:33] Speaker 01: But are you requesting that we urge them to do one of the three or that they just be allowed to participate in these options? [00:18:41] Speaker 03: Well, I think just like in that case, we're asking this court to reject the GLOMA response. [00:18:46] Speaker 03: And again, the government has options on remand. [00:18:49] Speaker 03: There's no denying that, and we're well aware of that. [00:18:53] Speaker 03: Of course, this court in ACLU-VCIA did caution that if they choose to go the no number, no list route, the court would want to see a particularly persuasive affidavit, because it's just [00:19:05] Speaker 03: To use your term, your honor, a little squirrely of a response to say, well, we have documents, but the depth of our interest is classified. [00:19:13] Speaker 03: It just becomes a little bit. [00:19:14] Speaker 03: slippery. [00:19:16] Speaker 03: And given this court's admonishments in Vaughn, going all the way back there, and ACLU-VCIA, it's understandable that the court would want to see a really good explanation for why that stuff remains secret. [00:19:27] Speaker 03: Of course, the quotas to a lot of these litigations actually suggest that that's not what's going to happen in this case, Your Honor. [00:19:35] Speaker 03: ACLU-VCIA is one where, again, they identified or described at least hundreds of documents on remand. [00:19:41] Speaker 03: Flores itself is one where the court didn't even reject the Glomar response. [00:19:46] Speaker 03: It just said the district court needs to consider it. [00:19:49] Speaker 03: And the CIA ended up releasing some of those documents. [00:19:51] Speaker 03: So the CIA does hold tight to these Glomar responses. [00:19:58] Speaker 03: But once they're defeated, the sky doesn't fall. [00:20:02] Speaker 03: They are able to engage in a normal FOIA search, like most agencies do every day in FOIA. [00:20:10] Speaker 03: I do want to draw the court's attention, and I know my time's up, just one document that is in the record that we think actually is a responsive record that was not produced. [00:20:20] Speaker 03: And perhaps the court could look at that document and decide [00:20:24] Speaker 03: That defeats the global response on its own. [00:20:26] Speaker 03: And that's the inter-agency meeting memo. [00:20:28] Speaker 03: It's a JA 359. [00:20:29] Speaker 03: It was obtained by the ACLU and FOIA litigation 10 years ago. [00:20:35] Speaker 03: It's discussed at our opening brief at 4041. [00:20:38] Speaker 03: And that describes a November 2006 meeting involving the CIA and other agencies discussing several security issues concerning the 14 high-value detainees. [00:20:48] Speaker 03: at Camp 7, and it says that the group reached consensus on several issues. [00:20:53] Speaker 03: It also says that individuals working on detainee issues at Camp 7 would require CAA code word security finances. [00:21:02] Speaker 03: So that's a document that should have been responsive in this litigation that was not produced, and that could and should defeat the agency's global response on its own. [00:21:15] Speaker 04: Thank you. [00:21:17] Speaker 03: I'm sorry. [00:21:18] Speaker 03: It was released in other FOIA litigation, but not in this litigation. [00:21:25] Speaker 01: Thank you. [00:21:46] Speaker 00: Good morning and may it please the court, Thomas Pullman for the Central Intelligence Agency. [00:21:52] Speaker 00: This court has held that if a FOIA requester attempts to compel the disclosure of protected information on the ground that the information is in the public domain, the requester must establish that the exact information at issue [00:22:04] Speaker 00: has been officially acknowledged by the same agency from whom the information is sought. [00:22:08] Speaker 00: Disclosures of similar information or disclosures made by other government entities the court has held do not suffice. [00:22:16] Speaker 00: But in this appeal, Mr. Cannell argues that none of those cases matter because a FOIA requester can simply avoid the strict requirements of the official acknowledgement doctrine. [00:22:25] Speaker 00: by arguing that the presence of information in the public domain makes the agency's attempt to invoke an exemption not logical or plausible. [00:22:33] Speaker 00: This court should not permit the requester to do through the back door what this court's precedent bars at the front. [00:22:40] Speaker 00: The official acknowledgement doctrine is based on the recognition that confirmations from an intelligence agency itself are fundamentally different because they are given unique weight and eliminate all doubt on a question. [00:22:53] Speaker 00: Those same principles foreclose Kanell's argument. [00:22:57] Speaker 00: Further, Kanell offers no argument that the documents he relies on contradict CIA's assertion that confirming or denying the existence of responsive documents would disclose information relating to intelligence sources and methods. [00:23:10] Speaker 00: Because that assertion is logical and plausible, the agency's global response is supported by two independent FOIA exemptions. [00:23:18] Speaker 04: We ask that the judgment be affirmed. [00:23:20] Speaker 04: So council's argument is that it's not plausible in light of the various things that have appeared in this Senate select committee, board, et cetera. [00:23:33] Speaker 04: And are you saying that that's not relevant or that plausibility is, that plausibility is not established? [00:23:43] Speaker 00: So I'm saying that this court has a doctrine to address that exact argument that public information prevents the assertion of a FOIA exemption. [00:23:54] Speaker 00: That's the argument here. [00:23:55] Speaker 00: So those cases apply on their face. [00:23:59] Speaker 00: And the same principles are involved, that there's a critical difference between confirmations from an intelligence agency and statements from others, that those confirmations are given unique weight, [00:24:12] Speaker 00: And the court has said that kind of those considerations apply with greater force in the intelligence context. [00:24:20] Speaker 00: And this court has rejected several times attempts to kind of end run the official acknowledgement case. [00:24:29] Speaker 00: In Knight, the court addressed an argument that statement from the State Department, even if it weren't an official acknowledgement, undermined the Glomar response. [00:24:40] Speaker 00: And the court said, no, that statement from this other agency is far different from an admission by the intelligence agency. [00:24:50] Speaker 00: And that's what makes it logical and plausible. [00:24:52] Speaker 02: So if the SSCI report just flat out says that the CIA had operational control over these detainees, if that statement was from the CIA, if that had been in one of the documents the CIA produced, [00:25:07] Speaker 02: would you concede that a Glomar response would be implausible? [00:25:13] Speaker 00: I think it depends on [00:25:19] Speaker 02: The request is for documents about whether CIA has operational control during this time period and a CIA document one just one says CIA had operational control. [00:25:31] Speaker 00: Yeah, I mean, I think we would. [00:25:33] Speaker 00: It would certainly be different and it would change the scope of waiver and the question would just be whether there's anything. [00:25:42] Speaker 00: And if else outside and and wolf is instructive in in this regard, I think, in that case, there was a request for documents about a certain individual, a Colombian politician. [00:25:55] Speaker 01: I believe that Judge Garcia is very pointed and very narrow in the question he's asking you. [00:26:00] Speaker 01: And you're giving us a response that kind of says, look at other documents in the totality of the circumstances, essentially. [00:26:08] Speaker 01: But if he's referring to one specific document that has that statement, [00:26:12] Speaker 01: That's the response. [00:26:14] Speaker 00: Then it would waive with respect to what's incorporated in that statement. [00:26:19] Speaker 00: Right. [00:26:19] Speaker 02: Okay. [00:26:20] Speaker 02: So I think something turns a lot turns here on how CIA is interpreting the scope of the request. [00:26:29] Speaker 02: I think one way to ask this is that in the background memo to the itinerary for the visit on JA 320, [00:26:40] Speaker 02: It says, once on Gitmo, CIA's end game is to assist DOD in any way possible in the military commission process, while at the same time protecting CIA equity. [00:26:53] Speaker 02: Isn't that an official acknowledgment of some CIA connection? [00:26:58] Speaker 02: Or are you drawing a distinction between that kind of a statement and operational control over these detainees? [00:27:05] Speaker 00: So I think this gets to what I was trying to get out before is that that Waves the Glomar response to the extent of the acknowledgement which is that CIA has this kind of very Limited role that doesn't necessarily go to [00:27:32] Speaker 00: operational control, but with respect to that, it kind of will support D.O.D. [00:27:37] Speaker 00: in the commission process. [00:27:39] Speaker 00: The memorandum of understanding that council referred to says that D.O.D. [00:27:45] Speaker 00: and CIA will coordinate on public affairs matters. [00:27:50] Speaker 02: So CIA has- How do you understand operational control? [00:27:54] Speaker 02: So if there's a FOIA request, you say you cannot confirm or deny [00:27:59] Speaker 02: what whether you have documents responsive to the request. [00:28:03] Speaker 02: And it's a little bit unclear just what the what CIA interpreted the request to be. [00:28:08] Speaker 02: Well, it's the clearest articulation. [00:28:10] Speaker 00: It was unclear what it meant. [00:28:12] Speaker 00: That's why the agency asked for clarification. [00:28:15] Speaker 00: And the requester came back with kind of it said, I want to know what operational control means. [00:28:21] Speaker 00: And here are seven things. [00:28:24] Speaker 00: And the agency said, OK, we are looking at [00:28:28] Speaker 00: what operational control means through the lens of these seven examples. [00:28:33] Speaker 00: And the agency did a search for documents that reflect an acknowledged connection between the agency and the request, and it released those. [00:28:46] Speaker 00: Anything that goes to [00:28:49] Speaker 00: a further relationship that's not reflected in what's been acknowledged, that's what's protected by the Glomar response. [00:28:57] Speaker 00: So it protects whether CIA has an additional relationship to the control of this facility beyond what is reflected in the documents that have been released. [00:29:10] Speaker 01: And that, I think- But the CIA chose not to classify or [00:29:14] Speaker 01: redact the portion of the torture report in that respect about its operational control. [00:29:19] Speaker 00: So this court has addressed that very argument in one of its foundational cases in this area, which is Afshar. [00:29:27] Speaker 00: In that case, the requester pointed to books by former CIA, or I forget the exact agency, but former agency employees and said, well, those books have been subject to pre-publication review. [00:29:43] Speaker 00: So the agency could have stopped information from coming out. [00:29:47] Speaker 00: And the court said, no, that's not enough to make it an official acknowledgment. [00:29:52] Speaker 01: So the same thing. [00:29:59] Speaker 00: It does, but Zubeda did not involve FOIA. [00:30:04] Speaker 00: It referred to FOIA cases as an analogy and an imperfect one at that. [00:30:08] Speaker 00: And I don't think there's anything in Zubeda that would call for an overruling of FOIA cases given that it wasn't in that context. [00:30:16] Speaker 00: And I want to be clear about one point with respect to that case is that [00:30:23] Speaker 00: In the context of the state secrets doctrine, it was asking, would these disclosures by contractors cause harm and harm to the national security? [00:30:37] Speaker 00: And the court said, well, yes, they would cause some harm, kind of analogizing it to official disclosure, but that doesn't mean that [00:30:49] Speaker 00: Disclosures by contractors, which were likely to be given some level of credibility, would be the same as disclosures by the agency itself. [00:30:57] Speaker 00: That's a full other step that the court didn't reach. [00:31:01] Speaker 00: And I think there's no reason to think that the court was silently overruling a well-established part of official acknowledgment cases, given that it made clear this isn't actually an official acknowledgment case. [00:31:18] Speaker 00: This is just by analogy, we're drawing on the same ideas that certain disclosures carry a risk of harm, greater risk of harm than others. [00:31:28] Speaker 00: So their contractors gave some, but it's not the same necessarily as the agency. [00:31:32] Speaker 01: And how does time impact disclosure of the risk? [00:31:35] Speaker 01: For example, if you're in 2024 thinking about a document that was available or acknowledged or actually even made in 2012, and yet that [00:31:48] Speaker 01: particular situation has passed, and it's a historical event now. [00:31:53] Speaker 01: Is there a difference in how you would respond, or would you just say? [00:31:56] Speaker 00: No, so that's something, when we're looking at harm to the national security, that's something that an original classification authority would take into account when deciding whether this information is classified. [00:32:08] Speaker 00: But I want to make one point that I think is very important, is that this Glomar response was justified on both B1 and B3. [00:32:17] Speaker 00: The question under B3 is only whether there's a statute that qualifies, and there's no dispute here that the National Security Act qualifies. [00:32:26] Speaker 00: And then the question is, does the information fall within that statute? [00:32:30] Speaker 00: And so the question when we have the National Security Act is only, would it reveal information that relates to sources and methods? [00:32:37] Speaker 00: There is no requirement of harm to the national security under B3, because Congress has already made the determination that these releases should not be made. [00:32:47] Speaker 00: That is the harm. [00:32:49] Speaker 00: It's already captured in the coverage of the stat. [00:32:53] Speaker 02: One. [00:32:53] Speaker 02: Can you give us your response to the interagency memo, which I was also going to ask about? [00:32:57] Speaker 02: I think there's two questions. [00:32:59] Speaker 02: One is just your response to opposing counsel's argument that it should just defeat your Glomar response. [00:33:04] Speaker 02: And the second is, why wasn't it produced in this case if it was already public? [00:33:12] Speaker 00: So, two responses. [00:33:16] Speaker 00: One, I'm not sure that it, and I didn't hear an argument that it relates, that it provides any information about CIA's operational control kind of through the lens of the seven identified factors as to why it wasn't, [00:33:40] Speaker 00: produced, I couldn't, the agency didn't address whether it thought the argument or the document was. [00:33:49] Speaker 02: Well, presumably if you're right on the first point, then it wasn't responsive. [00:33:52] Speaker 00: Yes, it could also be that it wasn't in the, I mean, the agency described how it did a search, which was a search of a particular database collection of documents that had been disclosed or deemed kind of [00:34:09] Speaker 00: appropriate for release, and it might also not have been in that collection, and we don't know if the agency actually has that document. [00:34:21] Speaker 00: But I would like to make a point about council tried to say, well, there's something about whether the other disclosures that are relied on the committee report or other things are especially [00:34:39] Speaker 00: credible. [00:34:41] Speaker 00: One that doesn't address or account for Frugone, where OPM, the agency in charge of information about executive branch employees, said CIA has your employment records. [00:34:55] Speaker 00: That would appear to be a very credible assertion, notwithstanding that this court held that the [00:35:02] Speaker 00: CIA could not be compelled to disclose information, whether it had records. [00:35:07] Speaker 00: The other case is Fitzgibbon, which involved a congressional document. [00:35:13] Speaker 00: The document in that case disclosed the location of a station. [00:35:20] Speaker 00: That document, the district court said, cited CIA cables for that information. [00:35:26] Speaker 00: So it's exact analog here. [00:35:29] Speaker 00: The congressional body cited agency documents and said, based on that, we're representing this fact. [00:35:37] Speaker 00: This court said, not an official acknowledgment, not an official disclosure, because it was made by Congress. [00:35:42] Speaker 01: And how does operational control relate to an intelligence source or the method? [00:35:50] Speaker 00: Yeah, so it relates to intelligence. [00:35:53] Speaker 00: I think most clearly methods and activities. [00:35:57] Speaker 00: Activities is one of the terms in the executive order. [00:36:01] Speaker 00: Intelligence methods are the means by which an agency carries out its intelligence gathering mission and the authorities for [00:36:11] Speaker 00: those means, and activities has a kind of similar definition. [00:36:15] Speaker 00: It's the means by which agencies gather intelligence and kind of specific operations that are carried out. [00:36:25] Speaker 00: So this is clearly, and I'm sorry, the requester offers no argument that [00:36:32] Speaker 00: what the Senate committee characterized as the operational control of this facility would not qualify as. [00:36:40] Speaker 01: The declaration doesn't specifically say anything that you're saying here. [00:36:45] Speaker 00: It says that it defines activities and methods and says that this information would disclose information about [00:36:55] Speaker 00: intelligence methods and activities. [00:36:56] Speaker 00: So I think the import is fairly clear. [00:37:00] Speaker 00: Now, if the court thought that the declaration were deficient because it didn't go into enough detail, then the proper solution would be not to say that the Glomar response can't be used and force the agency to disclose classified and statutorily protected information. [00:37:20] Speaker 00: but rather remand to give the agency an opportunity to fill in those details that the court thinks is missing. [00:37:25] Speaker 00: Given the kind of real stakes at issue here, that would be most appropriate. [00:37:32] Speaker 00: If there are no further questions, we ask that the judgment be affirmed. [00:37:35] Speaker 01: Okay, thank you. [00:37:36] Speaker 00: Thank you. [00:37:48] Speaker 03: Thank you. [00:37:49] Speaker 03: So the CIA mentions a few cases in its favor that we think actually help us. [00:37:54] Speaker 03: So just quickly to hit on them. [00:37:56] Speaker 03: Knight is a case where, at the end of the opinion, the court actually does consider whether our floor has argument. [00:38:03] Speaker 03: It says, notwithstanding official acknowledgment, does this State Department press statement undermine the CIA's global response? [00:38:11] Speaker 03: In that case, they said no. [00:38:13] Speaker 03: But again, that just raises two points. [00:38:16] Speaker 03: that weight will play out differently depending on the evidence available. [00:38:20] Speaker 03: There, the court found that the State Department press statement did not weigh the arguments the CIA made in its declaration. [00:38:26] Speaker 03: But here, this is an exceptional case where they do. [00:38:30] Speaker 03: Fitzgibbon, the CIA mentioned as well, that one also helps us. [00:38:34] Speaker 03: There, the court did not reject the CIA, excuse me, the Senate report out of hand. [00:38:41] Speaker 03: It said that it related to a different time period, and it simply didn't acknowledge the information at issue in the request. [00:38:47] Speaker 03: They considered it. [00:38:47] Speaker 03: They said it didn't match. [00:38:50] Speaker 03: In Afshar, that case also helps. [00:38:53] Speaker 03: As Your Honor pointed out, Judge Childs, Zubeda came afterwards, so that has to be accounted for. [00:38:58] Speaker 03: But even more directly in the case, in Afshar, the court compares [00:39:03] Speaker 03: the weight of the statements of former officials against media speculation and says those are kind of the same thing. [00:39:10] Speaker 03: So the court was making a judgment that that wasn't that credible in that instance. [00:39:15] Speaker 03: And we think that all the evidence here does add up to undermine the global response and show that there are more documents that the CIA has here. [00:39:26] Speaker 03: Judge Garcia, you asked a question that I think there's one [00:39:30] Speaker 03: thing in the record that is relevant to the answer. [00:39:33] Speaker 03: I just want to sort of the consequence of answering the response here for the CIA. [00:39:39] Speaker 03: There's a fully withheld document in the record. [00:39:41] Speaker 03: I think it's JA77. [00:39:42] Speaker 03: They basically describe it in general terms. [00:39:45] Speaker 03: And they have no more information about it, don't produce it, don't redact it. [00:39:50] Speaker 03: I think it's very hard to understand as a matter of logic and plausibility. [00:39:54] Speaker 03: how the government can release that document, but then the sky will fall if it acknowledges it has additional documents. [00:40:02] Speaker 03: And so even on the government's own terms that it's already released everything that is unclassified about this connection, I think it's simply not a credible argument. [00:40:13] Speaker 03: Seventy-sevenths of Vaughan index. [00:40:15] Speaker 03: Is that what you meant? [00:40:15] Speaker 03: That's right. [00:40:16] Speaker 03: That is the agency essentially giving that brief Vaughan description instead of providing a redacted document. [00:40:24] Speaker 03: I think it's a 20-something page document. [00:40:26] Speaker 03: I think on the Vaughan, they mislabel it as 30-something. [00:40:30] Speaker 03: They corrected that later. [00:40:31] Speaker 03: But it does beg the question of how the agency can provide a document that's responsive that says absolutely nothing about anything. [00:40:40] Speaker 03: And then harm will come if the agency acknowledges that it has additional records in its possession. [00:40:48] Speaker 03: So again, I think that this is not a case about an end run. [00:40:52] Speaker 03: This is about a case pushing the credibility of the agency to the breaking point and asking the court to play along. [00:41:00] Speaker 03: And I think as the court did in ACLU-BCIA, there comes a point where the court has to say no to these games of secrecy. [00:41:08] Speaker 03: And this is one of those cases. [00:41:10] Speaker 04: Thank you. [00:41:16] Speaker 01: All right. [00:41:17] Speaker 01: I've heard your arguments. [00:41:18] Speaker 01: We'll take it under advice and the case is submitted.