that the president has the absolute power to decide just close covert operations classified information the president made that clear just last week when he tweeted out a picture of an iranian missile site and when he was asked about whether that was a fact a secret he said we had a photo and i released it which i have the absolute like absolute right to do that was august th and i bring you back to this case how would you respond  about one point what he didn't like about the washington motion or i do not think it's ambiguous about the rest of it and that is that there was a massive dangerous and wasteful payment to syrian rebels fighting assad and if there were any doubts about that i think he dissipates those in his in his interview the next day with the wall street journal admittedly again a little bit garbled the wall street journal decides to defend the new york times on or i will not disagree with him doing that and so the flow are getting flow of that interview gets interrupted because the president mistakes the new york times for the washington post the journal stands up for the times but ultimately we find out that that the president says two things one is that it wasn't my decision and  nd that he says that the arms were going to al qaeda the thing that i would point out of the way i would think the analysis properly flows from the tweet is did some did anyone walk away any reasonable person walk away from that twee think there was not payments being made he uses terms that do not appear in the washington post at all they're wasteful that they're dangerous and they're massive and in fact the post argument the post article rather is highly critical of the decision quoting a lot of inside sources experts who never saying this program was important president takes that on so i think as to whether there is a program or whether there are payment circuit sets aside a glow or a response because the request only asked for whether there are documents which is showing interest in the intelligence operation not whether the cia was involved there  is a clear misstatement in the government's brief here when it says that we asked for cia programs at the district court that is not so that what we said to the district court was not going to quote from our briefing the for another day whether we have any right to the content of those documents but it's our position that under official acknowledgement as it's been interpreted by this court in the d c circuit another courts is that when they disclosure of documents disclosing official disclosure yeah thank you your honor it seems to me that when the president says my ending massive dangerous and wasteful payments to syrian rebels fighting assad that is a direct statement acknowledging officially acknowledging that there is a program that involves those kind of payments for stop whether we're ever entitle to any documents about this but the way for it works is it begins by by concerns about the russians he said it wasn't my decision and he said these weapons are going to al qaida this significance of that is not only disclosure but had there been some eroni of closure in the tweet had he not intended to do that that would have been the time to make that clear but instead he doubles down and makes the point again i would look at this is viewed closely aligning with the with the a c l u case from the d c circuit where the disclosure of the documents would show nothing more than an intelligence interest not whether the cia operated but in intelligence interest what you're asking is really quite narrow very narrow now respect to  e statements by general thomas can this case be resolved without reference to those statements we can it absolutely can't i think when i look at general thomas statements i think there are two relevance to two points of relevance about it one is that it undermines whether it's logical implausible for the cia to say there's a great secret here the other thing is that it also suggest serious high level military officer obviously knows what would harm national security he made those statements at a very public forum new york times reporters were there academics were there others in the intelligence community were there and he obviously understood that by making those statements our broader habanera the disclosure was that he did not imperil national security this exactly our point here is that knowledge of documents when neither is there any is there anything in the record that suggests that general thomas had any role with respect he's clearly speaking to those but he does talk about where where the decision making that may be but as i understand your public disclosure requires an authorization on the part of the individual to make the disclosure count i take your power in what he read and comment i take your point i when i look at his comments they seem to go beyond simply referring to what was what had been published and i think it goes to a separate document which we have in  a versus cia that does do those disclosures create an implausible an illogical situation where they the cia's response simply doesn't meet the standards of what the court would n extra add on on the analysis of plausible and logical thank you ron  good morning your honour's may it please the court my name is jeanette ferguson i represent the government in this action and i bring you a close to the language of the tweets yes you are and if you could help me understand  all this as i read what the washington post article says the washington post article does not describe the payments as massive quote unquote or dangerous quote unquote program so help me understand what's going on from your point of view given the words massive were dangerous seem to be just the president's they are not the washington post's and in context the article itself is it not saying that this is a massive or dangerous program you're one of the those words don't appear in the washington post article but that doesn't mean that they couldn't be the president's characterization of what is described in that article this is a one sentence tweet in which the president affirmatively says nothing he does not say that the united states operated a covert action program to fund and train syrian rebels it certainly doesn't say that the cia operated such a program it simply says that the washington post fabricated the facts now what they fabricated the facts on he's unclear about it's but it's certainly not sufficient under the wilson test the requirements of specificity and matching to say that this one sentence tweet which merely challenges the veracity of a news article is sufficient to publicly and officially acknowledge the existence of a covert action within the meaning of the national security act he doesn't i think what's notable is what he does not say as as your as noted he doesn't mention the cia you would like to simply stop the analysis read the words fabricated facts period because once you get into my ending a massive dangerous massive dangerous and recent payments to syrian rebels  seems to me and to them circumstances that it has to be based on something other than for you to for you to succeed here on something other than the president's own words if you  payments is gets to the reasons why the programmers and the quote is certainly a reading but the question is whether it's an unambiguous and the only meaning because as long as there is any level of ambiguity what's the  the as the district court found one could also read this as described as is his characterization of what was described in the washington post article and is rather than him acknowledging that he ended payments to syrian rebels particularly because the lead into the sentence is that is the washington post fabricated the facts so there's the washington the new york times has two problems one is there this is too general a statement to  under the wealth under the wilson test it doesn't mention a cia covert action program to fund and train syrian rebels you have to read two or three layers of meaning within it to possibly get to that reading but it's certainly a you know i mean i think you would you were you would say that you know there needs to be more specificity in terms of the actual disclosure of the program explicitly as opposed to something that could lead to that as a plausible inference i think that's what this court's precedents require particularly if you look at cases like wilner cases like wilson and the d c circuits line of cases like action wolf larsen they all require  they emphasize the need for exactly because this is the official acknowledgment doctrine is essentially a judicial creation that we national security protections and because that's national security harms are so vital to the to the national interest they're not lightly inferred based on general statements if there is even a little bit of variance the courts have said that's not sufficient to be an official acknowledgement that's why courts for  confined to the exact contours of the station i take your your statement of the law and i think there are good and sound reasons why we should be very concerned about doing anything  that impairs national security and that's what our doctrines are are trying to do and sure but my problem is that if you look at the what the president said about the washington post article and you then look at what he said in the wall street journal interview it seems that he is acknowledging  program let's look at the wall street journal interview yes it seems to me that and help me understand where i'm misunderstanding that the the the decision quote unquote fund and train syrian rebels you could have had in mind and program that's not a cia covert program he could have had in mind we don't know that's the problem here when you compare this to the type of statements where official acknowledgement has been found in each of those cases there's been a direct statement of the classified information into the public record you don't have to infer it you don't have to guess that you don't have to speculate and that's the reason why the case law says you can't have official acknowledg speculation it can't be the public guesses that this is what must be the case it has to be direct and unambiguous and here we don't know what the decision was it was a decision made by people not me that's what he acknowledged it doesn't say what decision it was he making comments like this that you know seem to indicate that something exists and we can debate the you know specificity of it but what's the rationale for for that for the ones you're in of the rationals explain both in the public declarations but also in more detail than we could provide in the public declarations in the classified declaration that goes into some detail about the national security harm that would come from the cia being forced to either confirm or deny the existence of records regarding such a program i can't comment so there isn't an early answer as to the reasons that it might i mean i'm not asking for specific deeds you know programatic details and ask him you know from a national security perspective is law st of all in our public declarations we describe how that the type of program that's described in the washington post article is an extraordinary covert action these by definition it defined term within the national security act is a type of activity by the united states government to influence political economic or military conditions abroad but specifically in such a way that the role of the united states government is not apparent or publicly acknowledged and that there have to be supported by presidential determination that this kind of covert activity is important to the national security and that it's important that it be done in this covert manner so by definition by statutory definition covert actions the revelation of them harms national security and i also know that they covert actions are why don't you want to blank check part of your own i want to blank check anything that's conceivably covert and you were a view that could be label of covert is off the table no your honor covert action is it as a specific defined term in the statute it has they have a procedure that has to be followed in order to activity covert action they're subject to specific statutory congressional oversight they are they have a definition that's beyond just normal covert activities of the cia or other there is nothing that's real least at this at this at this stage it's simply a question of whether what the president said his an acknowledgement or not but what flows from it seems to me is quite likely that nothing will be released in the next round because if you are correct then that would impair national security so what is it that you were a losing in terms of national security in the context of this litigation your own or if if the glow murs overturned then the the fees see i would be forced you couldn't we put in a position to confirm or deny the existence of records which in this case is tantamount to acknowledging whether or not it conducted such a program and so that is the harm at this program was actually conducted as it have to say it conducted the program or does it is it just an acknowledgement that a program exists in this particular in this litigation and i think that mr mcgraw is somewhat mis characterize the litigation posture the way this was litigated was that it was a cia operated program and let me perhaps requires a little bit of history but the cia when it responded in the district court said that there is ambiguity regarding the request because it refers to a program the tweet doesn't refer to a program but it does refer to a washington post article that describes a program so we are interpreting your request as being about the covert cia program described in this washington post article to fund and train syrian rebels when the new york times crossed move for summary judgment and filed its opposition to our motion for summary judgment it said that the cia had correctly assumed that they were seeking the records about the cia covert program and in fact uses the words covert program and cia program throughout its papers it's only and this is the papers that mr mccraw referred to in a footnote in a reply brief after the government's briefing had been done that they then said well it could be any agency clearly this the district court understood that this was litigated and on the basis of covert cia program that's how it begins its opinion he says the question at issue in this case is whether or not a covert cia program has been acknowledged and one of the two bases for his decision that it had not been officially acknowledged was even if a covert program could be said to be acknowledged by these president statements which he found that they hadn't been as a separate and independent basis it certainly doesn't mention the cia and the cia's papers mention as a as a separate independent harm why the cia's involvement in such a program is classified if such a program existed and why it would harm national security because it would reveal the cia's capabilities intelligence interests relationships and activities abroad so that was a separate and independent reason which can also sustain this court's findings on appeal how would you respond to the general thomas statements don't even qualify as relevant under the florist test because it does not appear that these were an official acknowledgment on the part of d o d they are an answer by the general at a private forum in response to a question it does not appear that he was authorized by deity to make this release or speak to this issue and in fact all of the characteristics of the statement itself suggest that he's not speaking at least from definite knowledge he uses phrases at least from what i know i don't know enough about it i'm reading the editorials it might have been and perhaps none of that sounds definit it certainly does not is not so definitive that it could possibly undermine the logic and plausibility of the cia's glow or i would compare this for example to the wilson case again in which there was an actual letter on cia letterhead that the cia had acknowledged that had been sent from and it was in the congressional record and this court emphasize that because that had not been an official acknowledgement by the cia in that case that there that lingering doubt that a possibility for plausible deniability was sufficient to allow the cia to maintain the classification of that information because there was a logic saying that an official acknowledgment requiring the agency to say yes those were the miss wilson's dates of service could be enough to cause a national security harm and here we have much more than a lingering doubt in position it was that he was wro are you taking the position that there's no reason to think that he had direct knowledge absolutely mind you picked it up based upon outside sources and drills and articles and that kind of thing if anything it has his own comments seem to disavow him having direct knowledge of the fact is i don't know enough about it at least from what i know doesn't sound like someone who was directly involved in anything and it certainly does not speak to the kind of statement one would expect if this was authorized on behalf of d o d to acknowledge a classified covert program you would not expect a high level official to use those type of words he doesn't say however that he doesn't know anything about the program  he says that he's talking about to the extent that he knows something yes so it's almost implicitly acknowledging that there is a program like this specific so far because he's not the people involved he can't say i know it's not simple it's not that he is disavowing the existence of the program or saying that there's nothing to it he's being in a sense careful to say i  speak to what i know now at the same time i take your point that you know he is his and he's not involved in the oversight he doesn't have may not have direct knowledge of of the program sore point is twofold one of which it doesn't seem as if he was authorized to make that statement and whatever his high level position is if he is not authorized to make the statement on behalf of d o d it's not an official acknowledgement and it doesn't qualify under flo  nd that it whatever if there is certainly ambiguity after you want to read the statement as to how much he knew what he knew and where he got that information was it from reading editorials and news articles of the type that he alludes to i create even if it's a two percent likelihood as opposed to the other ninety eight percent which is that is that is not your position absolutely your honor that is our position because that is what the wilson case stands for it stands for the proposition that if there's any ambiguity that is the lingering doubt that the wilson court referred to it gives the agency plausible deniability it allows the agency to say we're going to listen what the public perception is or what public speculation or public reporting or what everyone thinks they know in the in the field of foreign relations and national security that level of being able to say no no we didn't we didn't say that we you know that's not what it means is very valuable and there's a national security benefit to being able to maintain that level of deniability and that's what various courts have recognized but i do emphasize the wilson case in particular and the matching and specificity test is not met when there's an ambiguous statement i would have i would have an easier time with this situation i think if let's say we're a press conference and it was back and forth and some language was not as precise as it should be but here something affirmative is being done a tweet something is being communicated and the language about massive dangerous and wasteful payments is the president's it's not the washington post and that's the problem that i have and then in conjunction with the wall street journal interview that's the that's the that's the problem i think again it comes down to what was communicated the one sentence tweet was ledwith it was a fabrication and so there's everything that comes after that has to be read with that verb that is the verb they fabricated the facts and so it's not in a firm it is it is a statement that is an affirmative statement and i would dispute that characterization of the tweet secondly with respect to the washington it's a denial it's a criticism criticism of the washington post but it's not a direct statement affirming the existence of a program with the wall street journal article he refers to a decision made by people not me that could not be bigger it could not be more ambiguous  decision doesn't say the decision it doesn't say the decision talked about in the washington post article he doesn't say that he begins by saying it was in the washington post he says that's where that's where he begins yes but doesn't say a decision as described in the washington post they would got it right he says oh he said it was in the washington post that was not something i was involved in other than they did comment and they suggested it turns out it's a lot of al qaeda were giving these weapons to you know they didn't write the whole they didn't write the true full story which they never do again so all those things are very important i'm just i understand your position but yes and you're in a difficult position i understand the disputes the he disputes the veracity of the washington post article in both the wall street journal article and in the tweet but if nothing else he's a wall street you read the washington post article it's critical of the decision to end this program i think the washington post are to is expressed is that it was a controversial program to the extent it exists and i'm just describing what the washington post article says about this topic that there were those who held competing viewpoints about its whether it was effective whether or not it should be continued but the point is the president certainly can characterize it however the corridor has covered the many issues here and i thank you for that i said want to go back to this question about what we argued to the district court the government says in its brief on page twenty five that we never argued that non cia programs came within the ambit of the request of the government is now conceded that in fact we did we made that argument in january six months before the decision if they felt that we had somehow misrepresented the record they had plenty of time to tell the district and it's clear that while the court talks about wilson and specificity and matching it actually acts on a much lower standard than exactitude as ms vargas is suggesting in that case in new york times versus d o j there were no disclosures about one particular statute dealing with murder abroad and this court found that that should be released as well even though there was not only an exact match but no match so i think if you look at that decision it's asking that you make a reasonable reading of the tweet and of the wall street journal article and then looking at what would acknowledge in documents do and i think that you will see a complete match there is an acknowledgment of payments and the cia saying it has documents acknowledge it has documents about payments if let's say there's going back to judge walker's question if there is some lingering doubt and also judge parks question if there is some lingering doubt even if it's two percent is that enough when the president says that i do not believe two percent is enough no i believe that that is the fact that the test is whether what reasonable readers would come away from that presidential statement and i never got around to really answering judge park's question so let me do so plausible deniability makes a lot sense if you read the new york times today there's a classified program and everybody in the world knows the new york times is telling the truth and there's a classified program in the government says we're not going to give you a document that has not been officially acknowledged that's plausible deniability just to be clear i think there's a need you know sort of constant exactitude uncertainty that we're talking about really i think it also goes to where the statement is being made what level of authority in this case it was the president it was a president who was speaking directly to the public says you're out i'm not going to go to correct her truthfulness and your client has not always taken that position i would i would i would say is that the test is what would a reasonable reader take away from that play in the joints there i wouldn't dispute that in fact there may be some play in the joints in other statements i don't see that here because this was a planned release to millions of people this was an attempt to the public  by the president to talk directly to the public they need to know about this and i understand the cia would prefer to be the old traditional system where they would get asked is it ok if i tweet about this but they're not the president the president gets to decide so the question of if there's a little doubt i don't think that's enough unless it's doubt that a reasonable reader of that we come away with if there are no further questions i think your honors for your attention today it's possible that if if your position were to prevail that that might encourage more careful  tweeting i was about to use the word unintended consequences i won't it may well if these tweets are going to become the way presidents in the future i think it will be communicate every republican every democrat has one now i do think in fact that they should treat them as official statements because that's what they are thank you your honor thank you both for your excellent arguments very much appreciate your your presentations the court will reserve decision