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Case number 22-5235.

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Roger Hall and Study Solutions Results, Inc.

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Accuracy in Media, Appellant vs. Central Intelligence Agency.

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Mr. Clark for the Appellant, Mr. White for the Appellate.

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Let's bring children forward, please.

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All right.

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Mr. Clark, good morning.

[00:00:21] Speaker 00:
Yes, good morning, Your Honors.

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John Clark on behalf of the Appellant Accuracy Media, Inc.

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in this Freedom of Information Act lawsuit.

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The plaintiffs seek records on American prisoners of war held in Southeast Asia during and particularly after the Vietnam War was over.

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On January, I will endeavor to, we have raised five issues.

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I will endeavor to briefly touch on all of them.

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But before I do, I think it's important to look at the background of this case because it is relevant

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to the determination of the issues that the appellant has raised.

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On January 23, 1973, President Nixon announced to the country that the Vietnam War was over and that all of our boys were on the way home.

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It was not true.

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A few days later after that, the chairman of the Joint Chiefs of Staff, Admiral Thomas Moore, received a list of POWs to be released.

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And when he received that list, it was so deficient that he ordered an immediate halt to the withdrawal of troops from Vietnam.

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So this controversy is now 50 years old.

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And this lawsuit that we were here for

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is 20 years old.

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Over the course of the last 50 years, there have been two executive orders mandating release of these records, in addition to a presidential directive, which entitled a declassification of POMIA records, directing all executive branch agencies to complete the review by Veterans Day of 1993.

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In 1992, the researchers determined that almost the exact number of POWs left behind, and that was 678.

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Now, we have raised a number of issues.

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One of the issues, probably the main one, is the number, is the

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existence of positive indications of overlooked materials.

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And under Valencia, a 1990 case, which relied on the 1979 case, founding Church of Scientology.

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And those cases held that summary judgment is not appropriate, where the record raises issues of substantial doubt as to the search,

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as to the search of positive indications of overlooked materials.

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I suggest to the court that here we have the positive indications of overlooked materials is just enormous.

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In plaintiff's October 2016 statement of material facts, it includes 153 statements that reflects really an enormous body of records which have neither been identified

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or produced.

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When was the last Senate or House hearing on this topic?

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1992 Senate Select Committee on POW-MIA Affairs.

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Is the exception for searching operational files under, that have been the subject of a congressional hearing, does that apply even if the hearing was 30 years ago?

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It would apply, that exception does not apply unless it is an Intelligence Committee hearing.

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When was the last Intelligence Committee hearing?

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I don't think there was one.

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Then why was the court right to apply that exception to let you search operational files?

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Because the court found that the age of the records, the court could no longer, the government could no longer justify it being operational records for records that were up to 60 or 70 years old.

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I'm sorry.

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So my understanding was that the search was based on the fact on 3141C3 exception.

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Is that not accurate?

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That is not accurate, Your Honor.

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I believe that.

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So you're saying that the search was authorized even though none of the statutory exceptions applied under section 3141?

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Yes, Your Honor.

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So the district court... Oh, I'm sorry.

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That exception did apply because we had submitted... In the last relevant hearing, because these allow the exception

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to the exemption of operational files turns upon the subject matter of investigation by congressional, the listed, the identified types of congressional committees or others, and which, you said the last one of those was 1992.

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Well, Your Honor, the court held that the exception was because we had presented evidence by members of Congress and senators that the records should not be continued to be held in the operational records files.

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That was the exception that the court applied.

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In any event,

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Is that in the statute?

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Where is that in the statute, if that's an exception?

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Excuse me?

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Where is the statute?

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What part of the statute is the basis for allowing us a search of operational files in this case?

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Testimony that the... What part of the statute

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authorize, right?

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CIA operational files are off limits for FOIA unless you fall in one of those 3141C exceptions.

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Yes, Your Honor.

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And so just telling me that somebody said something doesn't answer that.

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What I'd like to know is where in the statute the district court's basis for getting operational files was.

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I thought it was 3141C3.

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I believe that it is, but... Okay, then I'm back to my question.

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If the last triggering event was 30-something years ago, does it still apply?

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Yes, Your Honor.

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The court, the district court ordered the CIA to search its operational records in 2017.

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Five years after the last hearing.

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Yes.

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So your reading is that there's no time limit.

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As long as you can find somewhere in history a congressional investigation into the topic you're searching for, you can get into the operational piles of the CIA full stop.

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I believe so, yes, Your Honor.

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Getting back to the search, I would like to talk about the search briefly.

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I've reserved two minutes for my reply.

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But even if they looked at the operational files, didn't they conduct a manual review after that and then still didn't come up with anything?

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Apparently, they said that they conducted a review, but there was no description of the search whatsoever with the exception of the terms, a search term.

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And one of the search terms was Vietnam.

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Over half of the voluminous evidence that we have submitted had to do with Laos.

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They didn't even search that country, apparently.

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Insofar as the overwhelming evidence of overlooked materials,

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Senate the CIA provided the Senate with 1400 live sighting firsthand live sighting reports which was returned to the to the CIA for processing and they have they have produced not one of those.

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The Senate Select Committee said that there were 15,000 both first and second hand

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live sighting reports they have produced almost none of them and over the 20 year course of this lawsuit they produce approximately 100 live sighting reports hopefully inaccurate I would also suggest that the that there's another item in this is the

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the list of PNOK, primary next of kin, who authorized release of information on their loved ones.

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Now, the CIA had refused to do that.

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They said it was too much trouble or it was unruly burdensome.

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The district court overruled them and asked them, said, no, you have to search.

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Then later in 2019, the district court said,

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you have to search your operational records.

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Well, the CIA did not search its operational records for those 1,700 names.

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We suggested to the court that if it was proper for them to search their non-operational records, it was certainly clearly important for them to search their operational records.

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And also, Your Honor,

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One of the issues that we brought forward was the motive for withholding the records that the CIA has.

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And I would suggest that the

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that Mr. Billy Hendon, Representative Billy Hendon wrote a book about this.

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It's a very informative book, and he entitled it, An Enormous Crime.

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I think that every single piece of evidence that the CIA knew that men were left behind after the close of the Vietnam War, inculpates the CIA in an enormous crime.

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that is, abandoning its own citizens.

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Vice Chairman, Senator Bob Smith, whose affidavit is in the record, wrote that what is really at risk are the reputations and careers of intelligence officials who participated in and perpetrated this chapter, this sorry chapter in American history.

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I see that my time is almost expired.

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Thank you.

[00:11:07] Speaker 02:
All right.

[00:11:07] Speaker 02:
We'll give you a couple minutes to reply.

[00:11:09] Speaker 00:
Thank you.

[00:11:11] Speaker 02:
Mr. Brayan.

[00:11:20] Speaker 01:
Thank you, Your Honor, and may it please the court, Graham White for the CIA.

[00:11:24] Speaker 01:
The CIA has produced more than 8,000 pages of responsive records during the course of this litigation addressing the fates of US soldiers who went missing or were captured during the Vietnam War.

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The district court held that the CIA's search of its non-operational files was adequate under FOIA, and plaintiffs don't challenge that aspect of the district court's holding in this appeal.

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An issue here is a subsequent limited search of the agency's operational files for a specific subset of records that plaintiffs contend were allegedly shown to members of Congress in the 1980s and early 1990s regarding live sighting reports, aerial reconnaissance imagery, and records regarding rescue operations.

[00:12:05] Speaker 04:
time limit on that, and the statute doesn't suggest anything, but given the sensitivity of operational files, I take it you all haven't argued that that was sort of stale in the late, like 2019, sorry, 2019 to be relying on 30 plus year old hearings as a basis for rubbing into operational files.

[00:12:30] Speaker 01:
The CIA Information Act does not specify a time limit for the age of congressional hearings that could provide a basis for the exception under subsection C3.

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My understanding is also that the district court ordered the operational files.

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50 years from now, someone could come look at your operational files again based on that same hearing?

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Provided that the files are the subject of a congressional hearing regarding a specific intelligence committee specified in the statute.

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Same thing here.

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I'm sorry?

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I mean, the same type of inquiry here.

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Right.

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Well, there's nothing in the statute that indicates a cutoff date for the type of hearing.

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I should know if there's any sort of staleness concerns.

[00:13:09] Speaker 01:
We haven't raised that in this appeal, Your Honor, and the statute doesn't indicate any date or age there.

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So given that you agreed to do the search, why on earth did you not search the word Lao?

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So the declarations provide a subset of the search terms that were used.

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There's a list of the full search terms used.

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The declarations do not contain a list of the full search terms used.

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How do we know if the search was adequate without knowing what search terms were used?

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So the CIA has used this formulation describing a subset of the search terms that were used in previous declarations addressing operational file searches that it has submitted to this court in cases such as Pora, BCIA, and DeBaco, BUS Army.

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And in those, whatever terms we had by themselves were sufficient.

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So if we looked at the little subset you gave us and we go, there's no way that is remotely sufficient because you left out obvious terms like, wow,

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or rescue, then what do we do?

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I don't know how we can evaluate the sufficiency of a search without having the search terms in front of us.

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So even if this court were to assume that the search terms listed in the declarations were exhaustive, the search is still reasonable because of how broad the terms that were used.

[00:14:21] Speaker 04:
No, they're not.

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They don't get Lao.

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You have Vietnam, but you don't get Lao.

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And Lao is a big part of their FOIA request, and it is a big part of this litigation.

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And you're just not covering.

[00:14:33] Speaker 01:
The terms that were used include POW, prisoners of war, MIA.

[00:14:38] Speaker 04:
Yes, but you don't have anything about the country of Laos.

[00:14:41] Speaker 01:
But the terms that were used would capture... We don't know that.

[00:14:44] Speaker 04:
We don't know, since there wasn't a war in Laos, that these words would have.

[00:14:49] Speaker 01:
Well, any operational files that relate to prisoners of war

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POW camps that reference the specific congressional committees.

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They have been called something different else in LAO.

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I don't understand.

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Why wouldn't you search for LAO?

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You said you wanted to do a nice, wide, broad search.

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Maybe that's one of the other terms that's not listed.

[00:15:05] Speaker 04:
If so, you can tell the court that.

[00:15:07] Speaker 04:
So you didn't do LAO.

[00:15:08] Speaker 04:
You didn't do rescue.

[00:15:09] Speaker 04:
You did House special POW, but not Senate special POW, even though there were Senate hearings.

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This is not remotely a broad list.

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The subset raises more questions and concerns

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Then it does assurance.

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It suggests, in fact, that it was artfully narrowed the searching here.

[00:15:29] Speaker 04:
If you left out the term, was the term lao one of the search terms or not?

[00:15:32] Speaker 01:
The declaration is not specified.

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I can't provide any more information beyond what is in the declaration.

[00:15:36] Speaker 04:
I don't know how we could possibly think that this is a sufficient search.

[00:15:40] Speaker 04:
And you're supposed to search about rescue operations.

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There's no rescue.

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There's no recovery.

[00:15:44] Speaker 04:
There's no word like that.

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There's a follow up on a Senate hearing as well as a House hearing.

[00:15:49] Speaker 04:
For some reason you have House special POW, I don't know what that means, but you don't have any reference to Senate in here.

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I don't understand how this could possibly be, if this were the full list of search terms, how this could possibly be adequate.

[00:16:03] Speaker 01:
Any operational files that addressed prisoners of war, POWs, MIA, that were searched during the course of the search?

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I don't know what they were called in Lao because there wasn't a war going on in Lao.

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It was a CIA operation.

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So it might have not been called prisoners of war.

[00:16:20] Speaker 01:
We don't know.

[00:16:20] Speaker 01:
Well, the declarations also use the terms missing in action.

[00:16:24] Speaker 01:
But I would also just point out, Judge Millett.

[00:16:25] Speaker 04:
But that's different from a POW or someone who's in captivity.

[00:16:31] Speaker 01:
But the court standard for whether an agency affidavit and subsequent search terms are.

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are adequate under FOIA is whether the list itself does not have to be perfect.

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It only needs to be reasonable.

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But it has to be reasonably designed to capture the scope of the search.

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And this whole FOIA request was at least 50% about people who might be in LAO.

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And the Senate hearings were about that.

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And the district court specifically said, this isn't speculation that there are records about LAO that would have gone directly to the CIA.

[00:17:04] Speaker 04:
And so that I don't understand how you can come in here now and say that skipping loud, there's no reason to skip it.

[00:17:11] Speaker 04:
Well, again, reason and the only reason to skip it is that you're not letting capturing certain records.

[00:17:17] Speaker 01:
So again, Judge Millett, the declarations do not state that boss was skipped.

[00:17:21] Speaker 04:
But even if we were to assume that we have to assume if you're not, these are the only terms that are before us, we can't assume there's any other terms you would agree with that.

[00:17:30] Speaker 04:
Correct.

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You can't assume there were other terms.

[00:17:32] Speaker 04:
You can't just assume you covered terms that we are deeply concerned about you omitting.

[00:17:36] Speaker 01:
Well, the declarations state that other terms may have been used.

[00:17:39] Speaker 01:
I understand.

[00:17:39] Speaker 01:
OK, yes.

[00:17:40] Speaker 04:
Are you asking us to assume the critical terms that were in there?

[00:17:43] Speaker 01:
No, what I'm asking the court to find here is that even if this list was exhaustive, it would have captured terms related to Laos because the terms that were here.

[00:17:54] Speaker 01:
We don't have any way for knowing that.

[00:17:56] Speaker 04:
There's lots of reasons to think that it wouldn't.

[00:17:58] Speaker 04:
Well, what term is going to capture rescue operations?

[00:18:03] Speaker 01:
Well, prisoners of war, MIA, image.

[00:18:05] Speaker 04:
We don't know that things talking about rescue operations would use those words.

[00:18:09] Speaker 04:
When you use, and I just don't know how this works, if you have MIA, does that get MIA as plural?

[00:18:20] Speaker 01:
So the declarations state the different combinations and variants of those terms.

[00:18:25] Speaker 04:
But that doesn't tell me whether it gets singular or plural.

[00:18:28] Speaker 04:
We know whether because it seems like you have MIA singular but POWS plurals prisoners of war but I don't know about a singular prisoner of war but I don't know if your computers automatically

[00:18:42] Speaker 04:
got plurals, but just saying that variations on those terms doesn't answer that question.

[00:18:48] Speaker 01:
Well, again, the CIA has used this formulation in other declarations describing operational file searches that this court held were sufficient.

[00:18:56] Speaker 04:
In cases where the terms provided to us were broad and adequate enough, but this one's got gaping holes given the agreed subject matter of the operational file search, and this one has

[00:19:08] Speaker 04:
Scaping holes, obvious, stark holes in it, which the others did not.

[00:19:13] Speaker 04:
And we have a precedent that says if the search terms are not, if you haven't shown that they are reasonably designed to capture the requested information, then your search is not sufficient.

[00:19:31] Speaker 04:
And this is just, I'm troubled by the whole fact that there's a search of operational files to begin with, but you all haven't made an argument about that on staleness or anything, and maybe there isn't one.

[00:19:40] Speaker 04:
I don't know.

[00:19:41] Speaker 04:
But if we're there and you agree we're in, we're in FOIA land now, this doesn't strike me as possible that this is sufficient.

[00:19:51] Speaker 04:
It leaves big gaping holes in what was asked for, in terms that we have no reason to believe would capture that.

[00:19:58] Speaker 01:
So again, Judge Malat, the touchstone of this court's inquiry is one of reasonableness.

[00:20:02] Speaker 04:
And because we're talking about- It seems unreasonable not to have Lau in there when half the case is about people who might be detained in Lau, when those people might not be called prisoners of war because it wasn't a war in Lau.

[00:20:14] Speaker 01:
So again, Judge Millett, I would just reiterate that the declaration state that these broad terms were used because they would capture more specific information.

[00:20:21] Speaker 04:
Well, in fact, they say, we think this will capture everything has never been the limit.

[00:20:25] Speaker 04:
I mean, we do have an obligation to look at the words you actually use and see if they make reasonable sense to capture the subject matter.

[00:20:32] Speaker 04:
And that's my concern on this one.

[00:20:33] Speaker 04:
And simply a vague reference to, oh, there are some other variations, but we haven't told you what they are.

[00:20:38] Speaker 04:
And there might have been some other terms, but we're not telling you what those are.

[00:20:42] Speaker 04:
It's inadequate to me.

[00:20:43] Speaker 04:
You haven't asserted that you need to do it in camera, that there's any security reason for not having done these other terms or not telling us what they are.

[00:20:51] Speaker 04:
So I don't know what we're supposed to do.

[00:20:53] Speaker 04:
It just seems to me that if you can come in and say, here's about half the words that are needed to cover the search topic, and trust us, there were some other words and some variations, that our exercise here is an empty one.

[00:21:07] Speaker 01:
Well, again, Judge Millett,

[00:21:08] Speaker 01:
The language that was used in these declarations about different combination and variants being used, that is the same formulation that the CIA used in these declarations.

[00:21:16] Speaker 04:
Those formulations aren't what win your cases.

[00:21:19] Speaker 04:
What win your cases are the substantive words that you searched in those cases.

[00:21:23] Speaker 04:
We've never said that, well, the substantive words seem to fall way short of what the FOIA request is seeking.

[00:21:30] Speaker 04:
But because you had this in-specific language here about we did some other stuff, too,

[00:21:36] Speaker 04:
You win.

[00:21:37] Speaker 04:
You don't have a case that says that.

[00:21:39] Speaker 04:
That's not what is one of your cases.

[00:21:40] Speaker 04:
We have talked about the terms themselves.

[00:21:44] Speaker 01:
Yes, no, I understand, Judge Malat.

[00:21:45] Speaker 01:
I would just reiterate that the terms that were used here, including image, I mean, again, we're talking about- No, it says we're crazy.

[00:21:51] Speaker 04:
Like you search CIA operational files, all your CIA operational files, and you come up with a few that have the word image.

[00:22:02] Speaker 01:
Yes, and there's a very good reason for that.

[00:22:03] Speaker 01:
There are a couple of reasons for that.

[00:22:05] Speaker 01:
The first is that the agency engages in a decennial review process whereby every 10 years, agency staff review the content of exempted operational files to determine whether they still contain viable... In 10 years, you've only used the word... All the CIA operational files have only used the word image.

[00:22:22] Speaker 04:
Three times.

[00:22:22] Speaker 01:
So there's the decennial review process, right?

[00:22:26] Speaker 01:
And then also the CIA does not hold on to these records indefinitely.

[00:22:30] Speaker 01:
It operates under a records control schedule whereby the agency's operational and non-operational files are only retained for a certain amount of time.

[00:22:38] Speaker 01:
And so when we're talking about records, like what is the universe of records from the Vietnam War era, from the 60s and 70s, documents that are

[00:22:45] Speaker 01:
50, 60 years old.

[00:22:46] Speaker 01:
The universe is quite of such documents.

[00:22:48] Speaker 04:
But your search was of all files.

[00:22:50] Speaker 04:
That's the thing that Flaverg asked me.

[00:22:52] Speaker 04:
My understanding was you weren't searching, that you didn't have a special subset of operational files called Vietnam War era.

[00:22:59] Speaker 04:
That in fact, you searched agency-wide all operational files.

[00:23:04] Speaker 04:
That's correct.

[00:23:05] Speaker 04:
Whether it had anything to do with Vietnam or with what's going on in the world in the last 10, 15, 20 years.

[00:23:11] Speaker 04:
And you told the district court, by the way, that these operational files, time does not mean that these would not still include valuable and important information for the CIA.

[00:23:21] Speaker 04:
That's the thing that's flabbergasting to me, that the word image.

[00:23:24] Speaker 04:
Now maybe you don't use image, maybe that's what the NSC does.

[00:23:28] Speaker 04:
Maybe you use the words picture and photograph, I don't know.

[00:23:30] Speaker 04:
I find it flabbergasting that the word Vietnam at most turned up a few times, not because of the war, but because this is the CIA.

[00:23:40] Speaker 01:
So again, the CIA calls these files over time because of the decennial review process and the records control schedule.

[00:23:48] Speaker 01:
And the declarations do not specify precisely how many responsive records potentially... We're told a few.

[00:23:53] Speaker 01:
We're told a few.

[00:23:54] Speaker 01:
And there's no requirement under FOIA for the CIA... We're told a few, right?

[00:23:57] Speaker 01:
That's correct.

[00:23:57] Speaker 04:
That's what I'm reacting... I take a few to mean three, maybe four records.

[00:24:02] Speaker 04:
Does a few mean something different?

[00:24:03] Speaker 01:
Well, the agency is not specifying how many potentially responsive records there were, and there is... Well, they told us a few.

[00:24:09] Speaker 04:
That has meaning.

[00:24:10] Speaker 04:
That's sort of a defined term, right?

[00:24:12] Speaker 04:
We understand what that means.

[00:24:13] Speaker 01:
Yes, but as for a precise number, the agency is not... If it was a dozen, we wouldn't call it few, would we?

[00:24:20] Speaker 04:
I mean, if the CIA would call it dozen documents few, I guess I'd like to know that.

[00:24:23] Speaker 01:
I don't mean to be glub in my response.

[00:24:25] Speaker 01:
I'm just asserting that

[00:24:26] Speaker 01:
The agency deliberately did not provide the number of potentially responsive documents given the security issues here.

[00:24:32] Speaker 01:
We're talking about a surge of operational files indicating the number of potentially responsive documents.

[00:24:37] Speaker 01:
Again, we're talking about operational files that implicate the agency's current viable sources and methods.

[00:24:43] Speaker 01:
And requiring the agency to specify or to describe the number of potentially responsive documents with any specificity could pose national security discerns.

[00:24:51] Speaker 01:
Because it could.

[00:24:52] Speaker 04:
And then you can do an in-camera filing.

[00:24:54] Speaker 04:
I mean, right now you've asked, and I understand at this point, we have to rule on the record before us.

[00:24:59] Speaker 04:
And that one is missing critical search terms.

[00:25:04] Speaker 04:
And the results seem, given there's some very broad words, but then there's an awful lot of words.

[00:25:12] Speaker 04:
that would logically be in there that are missing, including particularly Lau and Rescue.

[00:25:16] Speaker 04:
And I don't know why it's a house in there, but not the Senate.

[00:25:19] Speaker 04:
I just don't understand the logic of this list that we've been given here, given the nature of the requests.

[00:25:26] Speaker 04:
And there may be good reasons, there may be explanations, but we don't have any of those.

[00:25:31] Speaker 04:
And I don't understand how we could say this is reasonable on a list like this, covers this much, when the search was supposed to cover this topic.

[00:25:40] Speaker 04:
That's all we do is we match up the words to the topic.

[00:25:43] Speaker 04:
And usually there's enough words that they cover the topic, but there's no assurance on this list that anything having to do with Lau was covered.

[00:25:51] Speaker 01:
So, again, Judge Blatt, I would just, again, point this court to declarations regarding operational file searches that it has held sufficient that do not include the exhaustive list of searchers.

[00:26:00] Speaker 04:
We talked about the words.

[00:26:01] Speaker 04:
That's what's always done for you is the words that we use.

[00:26:03] Speaker 01:
And again, I would respond that the terms that were used here would capture relevant information from Laos.

[00:26:09] Speaker 01:
Like POWs, image, that kind of information was not limited to any country.

[00:26:13] Speaker 01:
It wasn't limited to any date range.

[00:26:15] Speaker 01:
So we would just assert that it would capture information regarding Laos.

[00:26:22] Speaker 01:
I see my time has expired.

[00:26:24] Speaker 01:
Unless the court has any further questions.

[00:26:27] Speaker 02:
Thank you.

[00:26:29] Speaker 02:
Mr. Clark, why don't you take a few minutes?

[00:26:36] Speaker 00:
Thank you for this additional time.

[00:26:39] Speaker 00:
The CIA says that it searched its records for the last 60 years using the term Vietnam and came up with a few records.

[00:26:47] Speaker 00:
That's just not, it's simply not believable.

[00:26:50] Speaker 00:
And Your Honor,

[00:26:53] Speaker 04:
At the end of our brief, have you ever filed a FOIA request with the archives?

[00:26:57] Speaker 00:
Excuse me?

[00:26:58] Speaker 04:
Have you filed a FOIA request with the archives?

[00:27:00] Speaker 00:
I have, yes.

[00:27:02] Speaker 04:
Because they say they've accessioned a number of documents to the archives.

[00:27:05] Speaker 04:
These are old documents now, and that's where they might be, or they might be with other intelligence agencies.

[00:27:11] Speaker 00:
We have a case pending against the archives before Judge Lambert for these records.

[00:27:18] Speaker 04:
But that might be where they are.

[00:27:20] Speaker 04:
I mean, it's hard to know whether we're missing, logically missing, responsive documents if they're old.

[00:27:27] Speaker 04:
They say a lot of these things have been accessioned elsewhere.

[00:27:29] Speaker 00:
Yes, the archives says they cannot conduct a search because they don't have the resources and the records that were transmitted to the archives were not properly accompanied by indices.

[00:27:48] Speaker 04:
I know, but so then how do we know whether really anything's missing here, as opposed to maybe somebody did a bad job of indexing things?

[00:27:56] Speaker 00:
Well, we can speculate as to whether or not something's missing, but I would suggest, Your Honor, that in the search, the government has said that they have, they named these rescue operations, there are like a dozen of them, or over a dozen of them,

[00:28:15] Speaker 00:
Those are CIA names now if they wanted to find on these records find these records.

[00:28:20] Speaker 00:
They should have used their own code names to conduct the search and We talked a little bit about imagery in 20 years They have not produced a single image and these images are very very probative

[00:28:37] Speaker 00:
They show codes that only the POWs knew that were on the ground.

[00:28:47] Speaker 00:
And there we have evidence of the record there were at least 20 of those picked up and not a one has been produced.

[00:28:55] Speaker 00:
And I would ask the court to consider this in the wherefore clause at the end of our brief.

[00:29:02] Speaker 00:
We asked them to list whether or not, to include in their declaration, whether or not their search would include repositories of communications with a number of other agencies.

[00:29:16] Speaker 00:
Now, it would seem to me they can answer that yes or no without any implications for privacy.

[00:29:22] Speaker 04:
FOIA is not a right to interrogate the government with deposition questions.

[00:29:26] Speaker 04:
You don't get to ask questions.

[00:29:28] Speaker 04:
You just ask for documents.

[00:29:29] Speaker 00:
Yes, that is correct.

[00:29:31] Speaker 00:
I don't get to take depositions.

[00:29:36] Speaker 00:
We could ask for leave to interrogatories, which are generally limited to the search, and that's exactly what we're asking.

[00:29:45] Speaker 00:
Why can't they say whether or not they search repositories of

[00:29:53] Speaker 00:
of communications with other three-letter agencies.

[00:30:00] Speaker 00:
I think that they could do that and without any implication for national security.

[00:30:07] Speaker 00:
Another thing that they should be able to say, whether or not their search would include the repositories over presidential daily briefs.

[00:30:16] Speaker 00:
There are many, many, I assume, presidential daily briefs having to do with this particular issue.

[00:30:26] Speaker 00:
And they have produced, for the last 50 years, one presidential daily brief.

[00:30:34] Speaker 00:
It's just so, I think, kind of ludicrous to suggest that they don't have the records that we are seeking.

[00:30:44] Speaker 00:
And their record of recalcitrance is 50 years old.

[00:30:51] Speaker 00:
The government talked about their

[00:30:55] Speaker 00:
their decennial review.

[00:30:58] Speaker 00:
And there's an area of the brief where we talk about what they produce.

[00:31:03] Speaker 00:
It was up to, I think, 43 years later, after the record was created, that they released it after their decennial review.

[00:31:15] Speaker 00:
The last one, of course, was in 2015.

[00:31:18] Speaker 00:
So I suggested to the court that there are

[00:31:21] Speaker 00:
many, many deficiencies in the defendant's both production and bond index.

[00:31:30] Speaker 02:
Thank you.

[00:31:31] Speaker 02:
We'll take a brief recess.