afternoon you're on as they please the court benjamin torrance assistant united states attorney for the southern district of new york on behalf of the department of defense when the secretary of defense issued his certification in this court that triggered the protected national protected national securities documents act and once that certification issued stating merely stating his determination of that danger there is to be no disclosure on the freedom of information act born and no proceedings under the freedom of information congress was very clear in its intent it wanted to allow the secretary of defense alone to determine whether to withhold these photographs and they wanted to end this very lawsuit and you can see that intent from the text of the statu deferential language that suits that says the secretary will issue a certification which alone implies that that it's his determination to make this a sole in its discretion it does not say that it does not use the word discretion it doesn't use the word solely but what it does a start up a standard form to employ with regard to with regard to sort of occasion does not it says the criteria are whether there will be danger in his determination there will be danger to americans service members  civilians abroad but that but it it provides no other criteria than that though he couldn't do it if he just thought this would make the united states look bad that's correct he has to he has to adhere to these and how are we to know that he it complies with this he says in the certification that it that it would and then he lists the criteria that he has to stay and having said that that satisfies a statute that alone would do it but that combined with this court's in the supreme court presumption that an agency when it acts acts in regularly and acts with honesty those things combined suffice to make the statute excuse me to make the certification sufficient if he doesn't make a certification either a hun documents or one hundred photographs and makes it is to fifty what then happens to the other fifty the other fifty and that in fact did happen in this case there are one hundred ninety eight there right so here so those those were released quite i suppose would be the authority for the release absent for you but i don't know that i think the presumption goes the other way i don't think we need authority to release things i think we need with authority to withhold the death even without the boy for the photographs by themselves are covered by for you but they're removed from for year because of the certification yes and how is that no different than any other exempt document under for well the differences between  absent a certification there's no presumption against for it that's correct there they clearly meet that for his definition of agency records and so that they've been litigated since two thousand and four in the district court precisely for that reason they are records under  absent this particular statute they would be subject to for a week we certainly agree with that how does it i'm sorry go ahead but the certification is what removes them from void the certification removes them from point  and as i was saying congress is intent to do exactly that is clear from the text that that gives the secretary that authority that says he only has the status that he has he is the one given the authority to make this determination it's clear from the language of the statute that application of any other provision of law so that on the face of the statute alone it shows that deference to the secretary it's what would your position be if the if for the record of a judicial proceeding  showed that the that the secretary had not looked at the documents and had not and had in fact not done anything none had done none of the things the mental things that that are called for to make such certification if he'd simply signed a piece of paper that was a certification but had not in fact made the determination based on looking at the photographs and so i don't i think the district court was correct say the secretary does not personally have to review the documents the secretary both by operation of the state no but i mean i'm i'm postulating i'm sorry we more put that that nobody had looked at the documents  nobody looked at that we again it's a that there was a record of that showed the showed a memo from one person to another saying if these things are released it'll look bad and  politically it wouldn't be good for the president or something like that so sign whatever it is that the statute calls for sign the certification right there is you know we do say that generally this is not a can that would not be within the statute our position of course is that what the secretary did was within the statute it's his determination it's his decision to decide what goes what what photographs fall within the terms of the statute and so we don't have anything even close to that but if you know if we did have something that were so outrageously outside that it could be described as not covered by the piano's the n s a you know that's a spreadsheet not a photograph your supposition is that the is that the as the the secretary of defense or of his delegated persons properly delegated have actually looked at the material and and and made the determination which is reflected by the  certificate it's not up to the court to to second guess them as to whether whether they were correct with respect to the interests of the united states the danger mint and so forth that is correct that is our position and i think that  the legislative history clearly shows that that was congress intent i think the context of an acting the statute responding to this court's decision directing disclosure shows that that was congress intent to end litigation to end judicial proceedings concerning these two graphs and so when all these pieces together show that congress did mean to leave it to the secretary defense and to limit if there is to be judicial review to limit it to whether the terms of the statute are satisfied namely there is a photograph within the time frame covering the subject matters that has been certified and you know do you think that the statute required the transparency that well the the level of disclosure that was made by the  was the certification and he deferred to that we think that was the correct ruling and that's what should have happened with the subsequent two sort of occasions as well however of course now that the court has these additional details and  to clarify they were not in the certification itself they were in litigation yeah i understand but i apologize you're right about that but now that of course the court has that i think that the court can take comfort in the idea that the presumption of regularity has been clearly satisfied here  that the department of defense and gauged in a thorough and complete review of these photographs document by document making the determination as to each one that they do in fact satisfy the statute and i certainly realize that we said previously that in the areas the national security that we don't supplement our our judgment with for that of or that we're not we're not quick to do so well with regard to these some of these matters but are there any analogs i didn't see any of this and i was kind of wondering why it wasn't didn't occur to someone maybe it's just me but there are other instances the lawyer secretaries of various departments certify and things with regard to for example the secretary of housing and urban development sort of i doubt a community or counties not appropriately using federal funds with regard to fair housing opportunities is the westchester imbroglio that occurred two years ago and the search secretary certifies that they're not doing it and there's a good deal of wallace says that that certification is kind of the de decision i mean not i'm surprised that you didn't rely more on some of those things i realize that you're dealing in an area where where there's a traditional deference to process but i do i now certainly wish that we had cited cases that were that deferential but i do think we've cited at least one outside the national security context and i would point the court to the morgan decision from the supreme court and the and the supreme court discusses there the theory of the challengers in that case was that the court should review all the facts that went into the secretary's determination and the supreme court's as an argument to that that that would in their words convert a contest before the secretary into a contest before the courts  and that because congress had deemed this decision appropriate for the secretary to make they would not engage in that level of review with the chairs and dull just because i asked one other each presume you're wrong and that we were to say that this did within for ya what what is your response and what's what's the government's position even if it does fit within for then what's the government's response well there are two things your honor might mean by fit within for one is that it might be an about examining the documents it's more about just finding whether they fit within the statute so they all changes the standard of review perhaps from good over from arbitrary capricious if you're looking for an a p a kind of scene to do noble but but is that a level of deference and that's especially true in an exemption three case and especially true in a national security case so ultimately the question either whether the p s t is regarded as a super session of foil or an exemption from ultimately the question is whether these documents fit within its terms right and they do because of the certification and so you're back up to the back up is seven and while this court made a ruling favorable to you on that the supreme court jumped that really and so that's still available we agree that it is and we believe that the d c circuit intervening decision the facts of that decision really show why their rule is per protocol for determining for shutting down cellular networks to keep a bomb from being detonated that bomb could be anywhere in the united states at the entire population the united states it's something that that clearly should be exempt from  statute that was duly passed by congress and secondly it's about whether in doing so it now is immune from any review whatsoever by the judicial branch of government both of those fundamental principles are at stake here and all within the context of an even more fundamental principle which has to do with the transparency of government as that is voiced to us over and over through the freedom of information congress could undo for  a blink of an eye absolutely just so when you talk about the importance of transparency and all of these values that are universally treated as important it is of extreme importance to me and many others and and and in the law respectfully rahner with regard to that is very clear which is that no matter how little of a corner it might be there should be no implicit repeal of classic exemption three type of statute that is to say that the government has not point it might but it it but it defines what is a protected document and we know from old cases and very new cases as well that you read a definition and that's what it is the definition is in see to it says it means any record for which the secretary has issued a certification and there is a certain photograph taken during that period of time dealing with this subject and you can see that everything here is his son his photograph taken in that period of time and that it deals with that subject if it wasn't we would be interested in it so the only question is has the secretary of defense issued a certification and if if if he has then by definition it's a protected document and then it's not subject to it is not subject to disclosure under four years so what am i missing you're missing respectfully you're missing section d one of the statute which is which and so what you read was you read from i read the definition you read the definition which that protected document and but you missed the part which says for which the secretary of defense as issued a certification as described in subsection d subsection d then goes on to talk about exactly the criteria that are ness that the secretary must apply in order to make that determination and this court most respectfully has no idea as it stands here today whether the secretary mit did did that mission only require that he issued the certification that is described in d c and looks as though he has there's no question that he has issued a certification the question before the court is whether that certification must comply with the definition of certification in section d one for any photograph not all the rest but for any particular photograph described under subsection d c one and reading from the statute the secretary of the secretary of defense shall issue a certification if the secretary of defense determines that disclosure if he shall issue it if he makes that determination direct and we know that he has made that determination i mean he has made the determination and if he has he shall issue it and if he issues it then it's a protected document and if it to protect the document then by definition it's not subject to disclosure under four runner i mean it's kind of a tight box that you're in but try and fight your way out of it i don't think it's that hard to find a way out and here's why because this court over and over and over  every other court has viewed judicial review as the cynic wanna of the freedom of information act and of the freedom of information that is guaranteed us by that statute we all understand that agencies left to their own devices are going to keep things secret and so congress said that that not only shall there be judicial review but that there should be judicial review that is meaningful that is a no vote that you'll take a look at it fresh and this court has over and over done that and it's done that and if i if you know if you don't mind let me in the in these words your honor it's said that to support a claim of exemption this is the this court's language and well in their own sorry that i don't believe we're talking about holistic view that justice then judge scalia talked about in church of scientology which is for you allows the consideration of other statutes which themselves create reasons why exceptions to disclosure and that's exactly what this is the p n s d a is nothing more or less than a classic exemption three statute a so called withholding statute it gives the government the basis to withhold and so it's not adverse me that you are you are treating exemption three of four as if it were the constitution that you are you're argument seems to be along the lines that that if congress wants to pass a new law that creates a new a different set of obligations and considerations with respect to what gets this close or doesn't this could get disclosed it must do it in conformity with exemption three  and i mean congress has the power to do to pass laws under which documents will not be disclosed it is not constrained to conform them exactly the exemption three if if the new statute means that these things shouldn't be disclosed congress is not constrained to write that statue in a manner that complies exactly with the that is this is not a constitutional case in that regard it congress could say it does not apply here that's not enough to say for you it does not apply it can simply prescribe new standards and it can simply say this will be the rule and if your argument if somebody comes and says yes but that doesn't comply with this structure that was previously established under for an answer would be well that was then and this is now congress has now passed a new rule and for you isn't the constitution for you doesn't prevail over subsequent in ackermann's the structure of which congress specifically said in passing this statute it was not meant to disrupt that was that there's not a lot of legislative history but such legislative history is there is a senator graham saying this is not meant to undermine the entire structure of oil and i can give you the exact quote if you wish if this doesn't change boyer in its basic contract that was the words of the legislative history that we've cited in that is the legislative history that is before this court that basic construct is straightforward which is there is for foyer has its exemptions and then what but exemption three does is it creates another set of exemptions exemptions like this one which apply if and when another statute comes along that says some document may be withheld that's what this did and what the courts have said including this court over and over is that and in order for it to be something more than that to take for you a completely out of play that has to be very express and respectfully this is a classic a classic exemption three statute like many many other exemptions three statutes if you look at the city of chicago versus a t f case that had to do with with a nother congressional enactment like this one part of an appropriations bill that had to do with tracking weapons those two are viewed as exemption three statutes well suppose we view it as an exemption three statute then  it would it would establish particular criteria for withholding or refer to particular types of matters to be withheld now doesn't it set forth criteria for withholding that it says it says got to be taken  photos taken a particular time and for a particular subject matter as to which the secretary of defense has issued a certification those are criteria if any of those had not been met  under exemption three a judge would be able to say in an unknown this this document doesn't meet this it you see it's taken at a different period of time or it deals with some other subject matter understand runner and what this dispute between us right now just in the government throughout this matter has to do with whether the definition of when they sort of occasion may issue is appropriately a matter of judicial review that's all that this case fundamentally is about that is to say what that what we you you read section c as the beyond the end all of the statute we say i'm reading exemption three three exemption three let us be three two as saying that you have to look to see whether the statute is particular break in as to what it is it wants to exam and it seems to me once it has a definition and it says these four things have to be met those are the criteria and they are particular types of matters to be withheld so you could say the definition your hundred percent correct this turns on that definition whether under as a matter of exemption three and by the way even as a matter of simply compliance with the statute it depends on this definition and our argument and respectfully i think it's correct is that that definition includes the one because d one sets forth the specific criteria that is to govern the discretion that the that the secretary of to individual individualized consideration of each document this case each photograph was not made back and back in two thousand i was involved at that time and i remember it was the same arguments were not made so the when if and when the facts had but the facts had changed and the facts had changed in a poor tenets of islam had been changed in the the fact that it might inflame people because it reflect acts of abomination that might then be used as recruiting tools with regard to or or isis recruits for terrorist acts or a broader at home that's no different but hellerstein seem to think because we didn't have as many people in irak that somehow he needed more that makes no sense to me one thing he said this is the danger this is judicial second guessing and this is what some of us are troubled with there's disclosure to you of a process and certainly is the certification has mean something and that's one of the point you're trying to drive home and i get that that makes some sense to me certification has to be about something there's a standard for the certification occurred the question is how deep do you dig to figure out the legitimacy of the survey cation there's and that's why i asked about other cases where secretaries of various departments certify a particular fax or existence of circumstances at least in the housing urban development case and certainly national security we give to this to the evaluations and of the of those in charge of enforcing the laws who are maintaining the national security so the question is how how much do we need to know to determine that the certifications legitimate that that's really where the disagreement is that yes and no i completely agree that there has to be a tremendous amount of deference paid more in the national security context than in others but as a general matter there should be deference paid to the executive branch determinations here ok this is about process this case is about whether the specific documents document by document were considered by the secretary we know they were but this is not to do with delegation because the what was delegated was a process that if you read carefully the underlying certification here was a process by which the documents were sorted in a sample created that was the only people who looked at every document or people who are responsible for sorting and sampling we don't know how they did any of those things but we do know that they did that and we know that they did them to the satisfaction of the person who is required to make the certification but we don't know whether the person who was responsible for making that sort of occasion  had any idea what they did or didn't do but we do because he certified it but he said and he's taken an oath and he knows the law and and we assume that he has the character not to betray  otherwise the government can't can't function no less can function run or the government can functions as it does because when people make those determinations judges like your honour's look and say did you obey the statute and the statute requires that in a state you couldn't be clear that there has to be individual consideration of and over and over and talks about any photograph whether that photograph would endanger citizens there has to be individual consideration of the photographs the secretary could have been clear that he relied upon the recommendations of the generals in the joint the chairman of the joint chiefs of staff who had not seen every photograph we know that we just looking at  the procedural history here which is strong we know that there came a time when the district court found that what the secretary had done measured up and  and then the next secretary we knew the certification as i read the statute it says the secretary of defense may issue a new will sort of nation and any time it doesn't say you start the whole process all over again and when secretary ashton did it we started the whole process all over again this is two thousand eighteen secretary mattis could certified today recertify it and he'll have to do it by november twenty eighth in the cases coming groundhog day in never ends unless the documents are released to the public with whatever dangers ensued this case will never end to it will start a three year cycle of litigation after every certification in other words and to your analysis you can't lose i disagree or i can lose and here's how i can lose tell me i will both you and i and we've and let's be clear this road map i'm going to give you about how we can lose is one that we've laid out for the government as well so they know how to do this the secretary or someone to whom he delegates the authority can look at each of the two thousand photographs or however many it is we still to this day don't know but there's some information in the congressional record that indicates that something around two thousand photographs that won't take very long and the end and a person and it doesn't have to be the secretary he can delegate this authority and then rely on that can can then say this one for this reason is it will provoke the danger to u s citizens abroad an armed forces an employees which is what the statute is about and can in that process of looking at each one what has never happened since as far as we know for since forever but this argument as i said was not made at the outset  was that anybody did anything other than a sampling based upon criteria that the court was not apprised of and the court should be apprised because sampling is a surrogate for individual analysis of photographs let me back up and tell you what i mean  could just look at each one of them and spend a minute looking at each one of them and then afterward you'd be completely satisfied to run or they wouldn't have to and he wouldn't have to do that because and we've say this authority in our papers sampling is an appropriate surrogate for individual review if a reviewing authority such as a court can look at it and say that was a legitimate sampling so you you keep you keep assuming that the only part of the government that functions or has any expertise in the courts i mean i'm flattered but in the military is a profession is it not is it is the most terry profession of course and oh no and i'm and i'm urging deference to that but their past but but in order for there to be deference in order for this court or any court to provide the appropriate level of deference to the executive branch the military or whomever it has to know what they did so for example in and so that i was i believe in a so if a sampling process were created if there were one hundred thousand documents that the did you disoblige would as it does an all of these forty cases would defer to a great extent to that sampling process maybe the but they have to know what it is is to me that that  question would come up again and again and again and perhaps congress in vision that as as history advances things change and the reasons for suppressing them from exposure might someday disappear as a result of the changes in the world and they would no longer be any justifiable reason for disclosing them and that perhaps at such time one in your position would prevail and in in in in in showing that that the secretary perhaps had simply not made any new assessment but had simply had simply read by rote repeat did prior assessments so i mean we judges might not like having to see the same case every three  years but i mean perhaps the remedy would be for congress to say six years or ten years or before or perhaps we just have to hear the case when it's brought up again i don't really see that that the fact that the case comes back repeatedly to the court has much to do with it but but but by the same token i don't see that that really helps your argument very much except except to rebut the proposition that that we shouldn't have to see the same case again and again and again and certainly congress and dissipated that the secretary would take a good fresh look at this every three years and all i'm saying is that if the secretary the next time around were to employ a process that in fact engender the individual is to review that is specifically required by this that you have to look at the not impersonally autographs or nobody needs to look at the photographs again and again and again because once they've been looked at they've been looked at and one knows what they are but one can but one has to assess them against new world circumstances world the photographs forever will remain showing the content of the photographs will never change but the content of world circumstances will change and so once one knows what the photographs are one knows what they are one compares them to world circumstances and the secretary makes this determination now if it turned out in a future time if it turned out well if it were the case now or if it turned out to be the case later that the secretary just signed kept year after year three year after three years signing the same certification without making a new determination which doesn't require a new look at thousands of photographs it just requires comparing what you know about the photographs to new world circumstances there might be a time when the secretary simply would not have done what the statute calls upon the secretary to do that might be and i don't think you see that you've made an argument that the secretary here now has failed to do what the statute calls upon the secretary to do well well yes and no let me answer that two ways i think that you are precise sense was what hellerstein was feeling i mean when i think judge hellerstein was feeling that we're seeing the same sort of vacation time after time while world events change and he's not seeing this one is not the same tone i mean various documents photographs were were said be changed i mean not not that much time has passed and the the circumstances of the world as they were when this all started are still very very similar and and and the fact the se used the same words and making the same certification i mean it makes a lot of sense that that that the same the same considerations as motivating the secretary the first time are still true i mean we're we're still we're still involved in a war in iraq we're still involved in a war in all these places and afghanistan and so forth there's there's the why wouldn't i mean give me a big reason why the secretary's appraisal of this should have changed i  don't know and i'm not here to second guess doesn't mean that in twenty years it might not change i'm not here to second guess the secretary's appraisal that is not what and i don't remember said something about that this isn't should not be about second guessing  there should be no second guessing going on but what we what the court does have the right to request that request to demand what it has the obligation to demand is that the statute be complied with and the statute in compliance it has not been complied with because what we know is that the people who first recommended as the generals and then decided that is the secretary did not consider every photograph individually and i thought you said sampling would be fine it would be if the sampling is itself subject to appropriate judicial review so we don't know how that and is the easiest way to avoid the repetition of this every three years is to conclude that the p problem and congress could have solved the problem because what congress could have done is it could have said there shall be no judicial review congress could have said could have said this supersedes foyer instead that's not what congress did what congress did was two things it demanded it set forth a law a set of criteria that the secretary should consider in deciding whether something should fall under the statute and it  specifically by its language demanded that that be done on a document by document in this case photograph by photograph basis and it did not say that this was apart from foyer it did not say it may have been th congress's intent was that to react to this lawsuit but what it did not do a by its terms it did not change the construct of its by it the and that was what the legislative history is it wouldn't change the construct of for itself well if it if it says something is not subject to four year leaves for you intact and that's the question is did it say this is not subjective for you the answer in our answer respectfully is that because four y the you can raise the bar that no longer makes for there and then i got it i got the funny noises out of it i'm glad to achieve that the one strengthens our argument that's where congress said that the secretary gets to make this determination that's where the word determined is used in the statute and that shows that congress gave this decision to the secretary of defense you don't contend do you that once the secretary has made this determination that it's made occasion expires after three years byers after three years you don't have a problem with somebody coming back to the court after three years of the secretary and raising a new litigation and with it might be very easy for the court to decide but we think that should be decided  the standard of whether the terms of the statute were complied with that is whether the certification was issued so that for example if if after one three year certification another three years are difficult another three years certification if the secretary of subsequent to that simply made the certification without having considered the question but simply did it because it's got a memo from a subordinate it's time for you to renew the certification oh yes ok give me something to sign that that would be impervious to challenge the subordinate had had made there's no nobody did anything if nobody did anything ordinates simply said mr secretary it's time for you to renew the certification that was made by your predecessor three years ago oh yes what's that all about never mind here's the document just sign it right we would have a different case that you would have a different case so you're not arguing that this case can't can't properly come before the courts repeatedly we are not arguing that that is correct but we do think that in the circumstances now the district court judgment wrongly inserted itself too were a danger to national security like for example the the the plottings of the british in eight hundred twelve we're not not not worried about the british plottings right now undermining our national security i'm personally not worried about that change with time things do change and it would be up to the secretary to determine if under those circumstances some of us are still worried  status of that if the court were to look at the most recent declaration it said that the process last time began about six months before the expiration so that would bring us to may assuming it takes the same amount of time we would probably see that in a few months but i don't know the current where we haven't made a jurisdictional argument i think that the language of the whole show if we're if we're not entitled to review the secretary's determination i would suspect we don't have jurisdiction it's just outside the scope of this court's proper review the judicial review in the statute is or there's nothing expressed about judicial review of one or the other but we think that taken as a whole it shows that has and more again as he again as in some other cases it shows that congress left this decision to looked at the statute and the circumstance of the hole and determined that congress has this isn't to give the decision to the secretary of the relevant secretary in those cases if the precluded judicial review beyond just the fact that if somebody after the lawsuit saying i'm saying that we made for you a demand for disclosure of something and the disclosure was refused on grounds that violate foyer and we therefore ask the court to set aside the the the refusal to reveal the documents because it's contrary to for you there's no doubt is there that that lawsuit would raise a federal question within the court's federal question jurisdiction completely apart from what the standard would be for deciding whether the decision to withhold was one that the second that the person the official was entitle to or not and to i don't it would be any doubt would there that that would be a federal question i don't see any doubt about that that sounds like a classic for action of classic federal question and it would it would clearly arise on the federal law namely for that yes but that doesn't say anything about how much difference the federal court must give to the to the decision made by the official correct and the jurisdiction this court would be exercised to review whether the p s t s unsatisfied namely whether the certification has been issued thank you thank you both