begin i understand from the clerk that you may have some technical problems and if we lose you will just take the rest of your argument on the brief thank your honor but i don't how many things are thrown into the mix that's really what it boils down to and there are a lot of issues that were in the brief and that were especially if you listen to that the cia's argument were in the  that that officers should not decline in court and quote to process records that are based on the fact that they are allegedly beyond the scope of the cia's mandate what they meant to say today and that's an opinion that would not be the end of it your honor i don't believe so because of the counsel and i testified and the counsel cannot provide evidence and the only evidence in the record is this declaration that cherry picked from an alleged policy that even according to their counsel may or may not even be written and they're basically just asking you and my ask it suppose the policy were firm and definite what the the stated puppet stated policy new policy in the shiner declaration were firm and definite with that then  case just on this point comes down to whether whether the statement whether the policy was stated in sufficiently mandatory terms and whether introduced through admissible evidence that the existence of a definite policy would say that this is not left up to discretion this is not something that processors should or should not do as you characterize it then yes we would admit that point in fact we said you did so so speaking of cherry picking then when you look at the entire declaration you focus on a couple of words which might or might not be mandatory and isolation you know there's a should bear instance but there are there are a lot of mandatory verbs in the overall description of the policy instructed required mandates isn't the most fair reading of that entire paragraph is that this is a this is a binding rule going forward i don't believe so your honor our position is that the the things that are mandatory are conditional that they mandate that a four year process or consider whether or not they should refuse to process a request yes it is mandatory that they felt according to a generous reading of this they are in fact we would concede that if this scared they are required to follow this policy however that's like saying that i am required to think about what i will say before i say it it doesn't say what i have to say because required is to amorphous or because the requirement itself is only to make an assessment case by case  from that latter point your honor that is our point of the requirement is that they seriously think about whether or not they should do it and they are discouraged from doing it but they're still free to do it on a case by case basis would it be unlawful suppose cia gets a lawyer request for all documents related to covert operations to secure passage of the affordable care act could they last only just saying look that's crazy we don't do that stuff we've never done that stuff we're just not going to make that search they are not allowed to not search what they are allowed to do how far afield the request is from anything that they have or have done or could do they always know what they can do if they can say that the request if not reasonably described records that they would have they can say that it would be unduly burdensome they can say that you know we we cannot determine where to search because if we don't do this sort of thing that they can do the things that they do all the time and some maybe even do reading of the policy is they make a case by case judgement about whether the sick there's any reasonable possibility that the search will produce responsive records and if the answer to that question if straight up about what you can and can't do and this is not something you would be creating new law even if i even if it's with respect to a matter that they have no one gauge move with whatsoever this happens all the time f had a request to know what one dollar of the one who was considered would have the washington football team consider in recent drafts and that you want all the information they have and that they've got a search they can say they don't have that were actually they had them a let me make sure i understood what you're saying if they get something that's patently absurd and i happen to think what hypothetical right is a patently absurd situation they want all the information  on washington football team's private discussions on who to draft they can say we don't do that they can say that we can't construct a record we can't construct a search which is not what they're doing they're just saying one of these an eye on that and so there are some things that are just patently absurd they can say that's the thing that we can't even get started on that that's that's beyond the pale for us ok how long do you want to put it so we agree on that no your honor when we do not agree that they have the base tell me what i think if they tell me what they would be legal in your view what they would legally be required to do with respect to the washington football team request search they would be required to do what the n s a does when they're asked about people who have microchip implanted in their bodies they would have to say we could not determine where to search they would have to say this is an end to the burdensome intelligence agencies deal with every day ok all right and and to get to a different point of i'm about to run out of time i did stress that it's too admissible evidence because for you it doesn't go to trial the application of the role best extra will def fly and summary judgment makes it nonsensical because as i said in my brief and i'll just sort of very briefly rehash the my agency personnel should not decline to process requires only because of matters that issue well beyond the scope of the agent's and primary mission which is what you wanted except you don't like should you want will let me do it a step at a time ok indulge me if you had shallow well it's moot right if you are we setting aside whether or not it sniffable then yes if we had a policy statement  statement that said or was the equivalent of shell or will it's moot right correct all right now me i should my question again which is what i started out with if counsel for the other side is my assurance and presume to all of my ethical obligations i can assure you that that is the agency's position and we write that in an opinion and say the agencies position the word seem a little loose here or there but it is a shell and we the court are saying that's the mandate what's left on this before that's the end of it you haven't a forcible mandate you're in no worse position than if you had shallow well in the written policy and they don't follow it the way you want you have a mandate and you have to come back in either case if we should say in our opinion council has assured us that they meant to moot the case by granting the policy i said if i ask counsel he may not say that but i ask counsel is he assuring me the way pain and friends of the earth are requiring that this is done and i we write in an opinion it's done is that done if you write it in opinion i would argue that it's close to done but i don't think he can say that any more than why would you take his word over mine because you cannot take the word of a counsel because he's an attorney and he's appearing before the court and you know certain ethical responsibilities he may not understand that the entire scope of it is this is like lawyers aren't allowed to be fact witnesses ok then i got i got your point judge katz's do you have any questions now i your time is up we'll give you a couple minutes mr hand process requests solely because the matters at issue are beyond the scope of the agency's primary mission which is the fight here i'm asking you as counsel for the agency is it your understanding that the government's understand you understand the point he's made there are about there's loose language here and there but i still can ask you because is enough for me in my mind to ask you the question is it your understanding because if that is captured in an opinion then you you in the agency have new responsibilities because it would be captured pursuant to your surance but the policy is mandatory and that means it would have to be mandatory going forward case it's perfectly fair for the other side to as the agency or to be sure that the person who's giving this is surance really has the authority to do it and that it really isn't there sure and that's a perfectly fair question and that's what i'm trying to confirm for you absolutely your honor and i'm not disagreeing with and here that and i'm just trying to offer kind of the basis for my understanding that this policy is mandatory i'm happy to answer exemption one exemption six and the cia act district court sought the remaining disputes about two documents as i understand it it's actually about portions of maybe twenty one documents one thing we could do is just remain on for the district court to make the assessment on all the other documents so why shouldn't we do that as path of least resistance tethered to a representation by ms shiner in the shire declaration that we submitted and that representation covered all of the information withheld by cia under exemption three in conjunction with the national security act that was specifically miss shiners representation as to the harms to national security that would be occasioned by disclosure of this information the district court correctly noted that ms shin was making that representation as to all of the information being withheld under exemption three and the court then cited three decisions of this court wolf sims and center for national security studies for their holdings directing just records to extend substantial deference to executive affidavits predicting harm to national security so at the end of the day the district court's holding rested representations that expressly applied to all of the records withheld or redacted under the national security act the court's admitted misstatement of the exact number of records implicated by that holding doesn't unsettled the judgment which was compelled by the courts crediting miss shiners prediction of harm that cited the war as versus department of justice case from two thousand and eight pages forty eight and forty nine of our brief where this court noted that because its review of summary judgment is juneau though and it has the same record in the same affidavits before it as did the district court you are just as capable of evaluating the agency's affidavits regarding segregated military as was the court below and i think that's especially appropriate to do when as is your claim and we're looking at uncontested materials out and i understand you correctly that that's correct judge edwards yes all right so you just want to rest on the center of you it's our call to make and we there's nothing contested here and we want to go ahead and make the call well i think here you know if if you were just going at as as you said in the war as case if you were just going to remain and for the district court you and turn and uncontested segregate no no no no that's not the thrust of my question under standard law under the standard of review inquiries we do the same thing the district court dollars if it's a summary judgment and if there are simply documents to look at to make the determination we have some case law that says we can go ahead and make it that's what you do in summary judge and we can make those we don't need we don't give any deference to the district court's determination if it's a straight up summary judgment matter and we can look at it and determine whether or not there are material facts in dispute right and i wasn't saying that was what you just said i'm saying that during my original oral argument when you and i were discussing the counsel she's saying well it's clear that judge no know but the question now in separate villany is why would we send that back why isn't that something we can do in the context of this case on this record it's pretty straightforward you you can and that's not the point i was trying to make i was going to show that the lack of the lack of a sacred finding shows that the district judge did not apply the analysis of the national security act to all of the doctors who controversy if only that would have been an advisory opinion after saying that there are only two doctors the controversy and by the way i'm going to say that everything else is except two judges don't do that i mean good judges don't do that this is a good judge i'm