covered up the destruction for nearly two years and then just all approved a government visual markup of say in violation of military commissions act the remains of say a still constitute judge hole handle the issue of the preservation of say adversarial way with the defense able to file multiple motions asking for not only the preservation of say but access to say and various related motions asking for discovery about citing any other black sites during that adversarial process judge paul found that saying it was discoverable he told the defense that they would have a chance to fully litigate the question  approximately a year and a half of this adversarial process and that is in the record that appellate exhibit g o and that order that public order orders the government to quote maintain any structure or fixture of any overseas detention facility in their current state now at that point in december th their team the defense cult secure that they would have the opportunity to exercise their rights to litigate the question of access to say and other information about site a before any action was taken to destroy it and yet in early two thousand and fourteen the government continues to file to judge paul asking for approval of certain substitutions on june th two thousand and fourteen roughly six months just six months after the issuance of that public preservation order judge hole issues  contemplate the creation of a substitution without the ability to compare the government's purported substitution to the original classified evidence in fact seebach allows for the parties to ask for reconsideration of the substitution which would not be possible without direct the preservation of the original classified evidence what need in the military commissions act nor seek but do is allow judge paul to compare one substitution for the government's version the nd version of the site without ever consulting might be original classified evidence which is the site itself and i'm sorry final five to actually specifically substitution the comparison must be to the original classified evidence and so i submit to you that the issue of the substitution is a complete red herring from the government the quality of the substitution itself of what the government is calling the substitution of what we call a visual markup that frankly it is worse than a real estate offering it has there is a limit to how much i can describe it and on last night setting but we video substitution we would say yes your honor major any case it's ever held so they're not necessarily a good judge would have to visit but there are cases that mended the preservation of overseas sites documents the with another without seeing a classified document we don't actually have any law about the physical side you're using this is a mallet you can see it taken yes but is there any case it's ever done this where judges have to visit the site that's my question i don't believe so your honor but again this is a testament this is the product of the government's choices in this trouble in an overseas site that itself constitutes exculpatory evidence and so little bit i'm a little bit i am a little confused about the relationship between judge sole of them's decision judge so all of them federal judge and this district you know that the government could destroy the site why wasn't that the defendants were arraigned in the nine hundred and eleven case and the government knew that judge sullivan's order to create a visual representation of sight a and to destroy the site was not enough for a death penalty case and there are a number of issues with judge so his order number one is talks about the book potential relevance of the site to the hideous petitions of the detainees now that is a very a by just sullivan this exact same issue the preservation of st eight was being adversarial litigated before the military commission on a motion from the government itself a motion from the government to the military commission asking again from the military commission permission to go ahead and destroy the site and create some sort of visual mock up for it and so at gun point it seemed prudent and again i will be perfectly honest with the court given the a one more question if you could point me to any place in the classified world unclassified appendix that explains why what remains of the site is or a different kind of exculpatory that the video alone i mean worry we are on the question at least of whether the video is a sufficient substitution and show that it isn't you have to tell us something about why the physical site would be different one way would be if one of your clients said there's something at the physical site that isn't represented in the video i didn't see any argument the most important part of that program was the psychological torture it was not the physical torture that mr she enjoyed it was a no again i understand your argument but i have to focus on the only thing that's before us which is the question of do reason why the physical site would help you in a way that the video doesn't and i'm asking you to guess you help me with that question by pointing to something in the record that shows that differ absolutely on and i can get you i can get you the particular page numbers for this just in case i'm not putting it rightly but but the point about them whatever remains of say is to be able to do as any defense counsel would in be the ability to be sightlines the ability to hear other people nearby and i would point that particular element your honor these are all psychological factors that were implemented preserve evidence in the hague is case but also in the military commission case and he explained that that evidence was relevant and that he be his case for the same reason that's relevant in the military commission case which is not because it's ex but because it can be used to and able to challenge the statements that he made during his conditions of confinement as being involuntary and was unreliable and judge solon authorized the government to do so on the ground that this method of preserving evidence or a digital and photographic representation was sufficient and he did so without even viewing site a no judge paul went further than that and he required the government before he would authorize the government to substitute preservation methods and dismantle site and to provide to him the final proposed digital and photographic representation and he explained during for tire to all the parties that this was a two year process and that during this two year process he required the government to make additions to the representation including by for example adding cameras so that the representation would capture even  but i think the question that's presented here is is not is it clear indisputable that the representation is an adequate substitute because petitioner has said in his reply on page six that he's not asking the court to rule on that but it is instead petitioner is entitled to a definite physical preservation of the site in order to conduct that review and in the government's view the answer to that question is no because the record regarding petitioners conditions of confinement is preserved for a political view and that record includes detailed accounts of the periods during which petition was subjected to enhanced interrogation techniques and additional was not subjected to enhanced interrogation techniques at site and the government has acknowledged in the military commission case that he was subjected to enhanced interrogation techniques but not it's a the record will also include we have to make a decision will your honor but i offer that in case this court wants to consider what's at stake and then the record also includes reports photographs and witness statements of petitioners conditions of confinement at cia detention sites medical physical and psychological assessments generated during his detention summaries of all the statements that he made during his detention cia personnel who had direct insubstantial contact with the accused and it excludes any result of investigations conducted in response to allegations about the cia's former rendition detention and interrogation program and it includes this digital go to graphic representation and petitioner asked the question how could judge of all have authorized the government to substitute these preservation methods without actually viewing say a judge told reasonably relied on thousand five hundred photographs four hundred and sixty five laser scans one hundred drawings based on g p s data manual measurements and blueprints and five video segments and that data has been preserved by the f b i and can be made available to this court for it of for example witness testimony and he said that petitioner will have the opportunity to examine either through direct or cross examination witnesses who view the physical evidence at sight and that petitioner himself can testify about the sounds that he heard or the smells that he smelled and the government has said regardless of whether petitioner testifies the government is going to stipulate to petitioners conditions of confinement in the military commission so the government needn't be willing to use the information the petitioner does which includes drawings measurements still photographs and videos to make reasonable inferences about what this additional information would have shown it was the court has any other questions was witnesses and i'd like to point out that the government has actually refused us access to every cia official that we have requested as witness so that's our he also pointed to are the availability of our client and we have a copious amount of information in the record including the declarations that you just garland referred to from psychologists from experts talking about how when someone is subjected to substitutions and my friend had eight an impressive number of pages and records which unfortunately heard before and there are two points to make on that number one recently judge accosted in the in the new restarted machinery case refused to reauthorize reapproved thousands of us government substitutions using exactly the same method that we used in the nine hundred and eleven case precisely because he found that the government was relying on declarations that were overbroad and were out of date and that is exactly what we have been arguing with regards to those thousands and thousands of pages that they have just that they have produced to us for over now in nearly eight years of pretrial hearings that those substitutions are not adequate substitution is that we know that there is underlying information that is being rejected for the government's benefit and we have argued that before the military commission on the basis of for example documents that have been issued by a four year that are less redacted than the documents that we received at the military commission and so you're i should be aware that when we talk about comparable evidence