it please the court i'm james getting water from waves and calmly for the appellants i have to walk it spent nearly forty years building one of the largest retail businesses in latin america for five thousand employees hundreds of millions of dollars  administrative leave with agency he received an administrative record that looked like this black box that's the genesis of this due process lawsuit it was only after the lawsuit was filed that ofac disclose summaries a two paragraph summary in august two thousand we do not have we're not challenging here the executive privilege or privative to enforce law enforcement since to prove information and withhold that what we're challenging and that's not mutually exclusive of over facts obligation to disclose that's an immutable principle that the supreme court in the goldberg case we sign on page three what effect saying it's done here is redacted all evidence from the administrative record and then it's disclose a summary of fact finding below in your opposition to the motion for summary judgment you said whether over facts blanket reductions are appropriate is irrelevant for the purposes of this motion the requirement that ofac provide designated persons with an adequate basis to understand their designations is absolute even if some or all of the evidence underlying the dozens is classified page twelve of your yes you ever so how is that different than saying that due process requires that in fact there's  risi classified or law enforcement's privileged information we're not requesting access to the classified or law enforcement sensitive evidence we're requesting access to a non classified or non privileged explanation of that evidence oh facts been able to provide that in every one of its sanctions cases in which discords found the process satisfied he didn't even ask the district court to review the redacted the unredacted versions in camer right respectfully we didn't know what that said we requested a non privileged explanation of that evidence even more seriously my english is no right you did this for them that's correct and that's because in your view it didn't matter whether post depravation an independent court article three court could review the evidence what w requires the opportunity to challenge evidence and that's what the goldberg case said to draw a clear distinction between fact findings and evidence saying that when the agency relies on its fact findings in other words its conclusion after its unilateral view of the evidence it must disclose that underlying description even non pros description of sources of where those sources come from dates places oh so mr goldwater i know it feels like we're talking past each other but just just really simplify let's say this were just a case of one to two free shopping and one individual who works there who goes to the government and says there's money laundering going on through it's to free shop and that individual is presumably that their identity of that individual's protected yes as law enforcement information now when the government turns around and says your client is designated and generally there's some money laundering going on here if they get more specific then they reveal if you know without naming the individual the risk is that they in fact you know when you see evidence if they have testimony of the person and the day that person was on the ship let's say that is going to identify the very law enforcement sensitive information that the government you can see that has a product or attack so then the question becomes how does your client get information that is meaningfully concrete so that you know what's being claimed but the government nonetheless gets to protect that and when we hear you saying we need evidence one might translate using my very simplified example that you need to know who when where with a level of specificity that may be in conflict with the maintenance of the law individuals and indeed don't those people have to be so determined by the attorney general in court mission with the director of the f b i all these pages that are blacked out there all the identity of individuals one assumption might be because you thought that if the district actually looked at the underlying information that they would realize that there's plenty of ground for this and i understand that someone in your position you know  burden to push for evidence on to the designee rather than on the agency to affirmatively disclose an anon privilege way or we're already excuse me we're already in a world of extreme deference to the agency here there's no productive ation notice conceded the summary consists of hypotheticals and i'm referring specifically to on page three ninety of the pendexter bullet point list of an example you can just see that would what people our investigation has revealed one hundred different instances of money laundering and we're going to summarize one of the for you and they give an account of one of those are you saying that that that you argue one the very next page of your brief where you say that due process requires you to be able to meaningfully rebut the evidence against you and that's inconsistent also with what you said below in summary judgment that kind of redactions when the propriety of them was irrelevant because you're entitled to know what the evidence is against so that you can rebut it so much go back to the hypothetical is if they said we have evidence of a hundred different instances of money laundering and we're going to give you unclassified way again the description of the source where it came from the timeliness and as the vios court said due process was satisfied not only because the doesn't he was able to challenge the adequacy of the evidence but also its propriety you can never challenge the propriety of a conclusion without the underlying evidence supporting it and so you're example would not be sufficient because it's uncorroborated by any evidence or explanation it didn't even make an attempt to do that here they said according to multiple sources i don't want to start laundering money cross examine that person but when we're in law enforcement sensitive to retain you can so you know who the person is maybe you can't know the date here so there's going to be so kind of generalise here is the government here thinks it's done exactly what you are asking for it they think they've given you know airbrushing out some of the revealing specifics that they've told you why your client has been you know money laundering right why isn't that enough for your client to hire an outside firm and do an audit and present that information and say our books are completely brief draws a distinction itself between evidence and fact findings in the three out of circuit cases citing saying you can provide a summary of evidence or fact findings actually don't say that they cut the other way they all require the disclosure of evidence in the s s e case is a great example it's they court for the proposition a summary of evidence may in certain circumstances provide sufficient notice to allow meaningful opportunity to respond but one of those circumstances cited me as a se case in which it didn't constitute adequate notice is when a summary merely tributes factual allegations to quote reliable confidential sources that's that's not adequate that's not an average interest summary and that's more than we got here we just got according to multiple sources that's point one and which his are you referring to whe and it's not part of the record made lee that affect sides on page eighteen but we know fact discusses targeted audits we could potentially do to disprove the allegation it's size four or five that showing that they're not targeted at all and if we  hearts case is a perfect example of that there they received analogous disclosure redacted evidence of a record three page summary the court found that it did not comply with the process it was very informative of what effect thought that that kind hearts did fund h least in part a legitimate charitable enterprise it needed specifics about the transactions how much when it needed specifics about the individuals with whom we did business how they're connected to hamas because hamas doesn't do business under the name  anymore than the sinhala cartel does business under the name so low a cartel or el chapo to an even greater extent here we need specifics this is a massive enterprise we need specifics about transactions when he specifics about individuals the government claims these generalities we have hypotheticals you know when the specifics are enough i'm i mean i'm just for purposes of discussion there may be situations in which like my very simplified example the only evidence is the testimony of an individual right there just isn't other evidence and that individual's identity i think we all would agree may with appropriate determinations made by authoritative people be kept secret of course so you're not go you have to just have something summaries other information and the question is how do we know when the information that's been provided is said this isn't really specific to satisfy due process i agree with you just blood they were sort of an unfamiliar territory here you know if it's a legitimate drug trafficker they're not going to challenge a fact as a nation they don't care they don't do business in the united states they sell drugs there are not a lot of challenges to step under statutes like th and there's because evidence has been disclosed in every other sanctions case we haven't had to confront this issue of what's what's evidence and what's not but it's one of those you know when you see it kind of deals and hear that there's not even been a good faith effort i can't emphasize that enough isn't they don't say according to a source whose identity we can't confirm but that we found to be reliable and corroborated by x y and z they haven't even done that's not a good faith effort is according to multiple sources that it how do we grow the even the words a if he words like that are redacted here you can describe a source in a way that wouldn't compromise that source is safety just generally and we know there's some way to describe the worth wouldn't because we know we know evidence and i'm privileged way according to a source that the government and an explanation that's with a kind heart case required an explanation of why the government relied on that evidence we found it to be reliable it can be very basic that's not even been done here and we don't know do you and of course it could be done good media thing but the better result again is to require evidence or disclosure and in the kind hearts case the court said look if you can disclose anything let's look at another option like having a lawyer with security clearance come in to review it but that's never had to happen before because again in every sanctions case evidence has been disclosed this it this needs to be put in context this isn't a terrorism case it's not even a tier one kingpin designation by the president this is a second level doesn't nation of a businessman in a five thousand employee business this is not the case you want to mark the outer balance to move the goal post with respect to how little the agency can disclose who does need a person and it would if the district court's decision  to look at the information or seek that we didn't begin the distinction between classified and law enforcement sensitive we didn't we didn't offer that the court has no further questions i could not have a will definitely give you time for good morning nicholas reilly for the government i'd like to respond to one point i'm happy to answer any questions the court has obviously but i'd like to start by responding to one point they came up repeatedly now during plaintiff's presentation and that was the idea that the evidentiary disclosures should specifically identify times dates specific stores i just like to put that in contact context very briefly here the kinds of organizations that we're dealing with here the kinds of international global drug trafficking cartels that we're talking about here when information is disclosed of this type of plaintiffs are seeking times transactions they are not going to go about trying to identify the sources who reveal that information in the way that a government goes about ferreting out the source of a leak they're not going to do due diligence in interviews to find out who specific leak released that information if there were five people at a given front company or an accountant a lawyer whatever or to store and provided the october summary of facts the obvious summary of facts was to provide a more readable and understandable a distilled version of all of the non law enforcement sensitive information in the record which is really for some for some of the reasons that we've discussed because the way the litigation went on in the trial court it hasn't really been pressed but where do you get the law enforcement sensitive privilege from the statutory source that i see limited to the identity of individuals and indeed limits it to in vocation by the director of the bureau and i'm really at a loss to see how all the redactions in this case could be covered short so i think just to the statutory provision that i think you're referencing deals with as i understand it reports to congress so i just want to make i'm just all that goes about providing this evidence over that's relying on several other law enforcement investigative agencies each of which have their own regulations and guidelines for determining what material is law enforcement sensitive that are specific to those agencies need an investigative methods the agency over that is also relying on information that comes from sometimes foreign governments where there are diplomatic concerns an issue in terms of disclosing information that may have been provided to a u s investigative agency in confidence and i think these are the same concerns that this court has recognized in past cases so in geoffrey the court did not where the court upheld the government's use and withholding of judicial review what role can we have if i don't know what the regulations are of each of the agencies that has applied its own guidelines on what's law enforcement sensitive and i appreciate that you're playing that clearinghouse role you're asking all those involved these foreign governments you know what is behind in line for you but do you have a role in testing that what role could we possibly have been testing i mean you know the risk as we all know is that everybody puts forward and classified information both of which are the subject of statutory and regulatory you know guidelines that this court can apply it also though and i think this is important to remember it also did involve the use of law enforcement sensitive information and upheld the withholding of that and what it cited in the opinion in jeffrey ford to justify that was a declaration from what i assume was a government agent and so i'm so we have no such declaration exactly and i think the reason we don't is because as judge wilkins questions about it you and i think your own questions alluded to the plaintiffs here have not ever sought to challenge the basis for those law enforcement privileged redactions if they had and i would hope that if the court thinks that that's necessary that it would give the government an opportunity to provide exactly those declarations and to justify perhaps in camera what the basis for those reductions were but that hasn't happened here and so i'm not sure about burden i'm honestly not sure but it would seem to me that it might be good hygiene within the government to make sure that when you are is serving such a privilege is that there be somebody who is willing under oath to put their name on on that assertion regardless of somebody else's willingness to push back i mean we have many cases in which people choose not to they think it's an uphill battle kemper the lawyer but they still have the right  you know to to have the information not withheld i'm less sure and i think that sounds right to me and if you know that was the practice that this court requires not i think that's the crack is the government would fall i just think it is important to know just how unique the posture of this  these other cases that we've been discussing jeffrey these other lines of cases the plaintiffs in those cases did not just raise a due process challenge challenging the adequacy of the notice they receive and stop there they also raised you know arbitrary capricious type challenges that substantial evidence face challenges that that did require potentially in camera view or some looking at the actual full record that hasn't happened here and so i think that's part of the reason why there is no you know defamation from the government given focused on the adequacy of the notice that they received the court could could make that determination as the district court did here based on examining that notice without looking at the record in camera but but they're  their position it's in a sense the more detail versions of the argument that we've been articulating from the bench which is that you have over claimed on law enforcement sensitive information by saying hey you haven't done enough they have really pressed that case you need evidence you need time place you know at least c i you know identification i mean is there not one padded  voice that ever could be revealed you know you talk about this is this vast operation there's not as well documented in the record i mean that's the term a nation that these investigative agencies made and again i want to be clear that even the example you've given that one padded invoiced really does run the very real risk for the reasons that i think identified at the top which is that if your five employees for instance had access to that one at invoice they're all placed in jeopardy it's not necessarily that but because the one pattern invoice was limited to you know like the set of employees that well the cartels are going to sit back and say well we can't figure out what it is you know there's no way of me that my mind tell you right  provided more him more information than what's in the summer i think it would have provided i think that in this which you have to do as a substitute a substitute right i think it would have provided grounds for the government to then have to justify the law enforcement sensitive determinations that it made either in the form of a declaration or something along those lines so so yes i think it would have provided some grounds for addressing the concerns that they've raised i do want to just push back a little bit on this notion because i agree this is a short summary but i do want to say that  used the law riviera duty free stores in the talking airport in panama city to smuggle book cash in suitcases above commercial aboard commercial airlines and at the use that to wander millions of dollars from colombia to panama is very specific and they have not provided any response to that specific allegation anywhere in their papers to say that that's too they there are other allegations in the summary that i think are also highly specific the allegations involving ali harp one who's a designated narcotics traffic home appliances that have been paid for in panama so we're not just talking about a time period twenty fourteen and a specific individual who we know has been designated all the heart we're also talking about the specific lines of business is that they used to launder money now plaintiffs took issue with the use of the word major clients and i think they wanted to read that as saying that the heart may or may not have been a client of the home appliance business it's very clear from i think reading the summary that clients here refers to clients of the money laundering organization and that's a very specific allegation i mean it's this is minutely difficult and i hear you about law enforcement sensitive interests but i also you know we're really  we're in an area of constitutional magnitude and you cities are very specific there are no dates the way the government briefs this i don't even know if they're talking about spain as in spain or spain as in argentina you know china as in china or china as in the cayman islands i mean it's really and would when i seen somebody testifying in a criminal case about what would happen why my ears perk up that's not something that person witnessed that person is extrapolating about courses of conduct over time and it's very unreliable so i'm not sure so so specific i mean one of the things for example if you have a legitimate business that has been designated what are the can you list for us what are the allegations that this development their accounts with development of construction companies the purchase of supplies and other equipment used in the construction of those projects so i think you know do we have time periods for the hourly hard allegation you do one year and twenty x that's right but might have time has for the others we don't want but again i want to at that's right we don't but at one the allegations early in the in the summary make or this was happening over a period of time again that's why we can see that that's not specific but revealing specific dates for the reason i said at the top actually does raise problems here and if i could just address that you've alluded i think just filler to the hypothetical on page three night involving spain i want to be very clear because this was a point that was raised in the reply brief the district court found we think correctly that that hypothetical and we think it's clear from reading the summary it was intended to communicate the specific methods that were actually used it's an illustrated hypothetical because the details that are filled in there the location of the drug dealer the dollar amount five million dollars the end placement of some of the money china those are details that were made up to illustrate exactly how this operates but the methods that were right i was just saying that while we're here what what i don't even understand this summary can you explain that you say a common drug trafficker as five million dollars in spain to be collected has are with whatever man has written rights look at what what you explain in your own words what this hypothetical explains sure i think what it explains is when you have the end product that whatever trafficking or activities  the drug dealers engage in there in some other country outside of fandom outside of colombia and in the example of spain they have five million dollars typically it's in cash and that's not a useful form to have five million dollars and if you want to use it in large amounts of money and so what they do is they give that money to members of this money laundering network in spain who then deposit it in a variety of different accounts dividing it up  commission right but but with what this example is actually showing is what happens is that money in spain is the posit into various accounts like i said that money is then used and funneled into legitimate business is that our legitimate business needs that the money laundering stores in panama it need to purchase some of those goods in europe it would use that money that's already in spain after it's been again deposit in different accounts to make it difficult to track to purchase those goods those goods then it would be using this money funneled those goods back s in in colombia in panama in various parts of latin america for the clients that we're talking about here so if you're the say you're the trafficker that in this case start in spain you control various front companies or your associates control fr companies or businesses sometimes they're legitimate businesses in latin america where you might have this kind of false invoicing regime that we've alluded to those businesses purchase goods that don't in fact exist and are paid or sell goods they don't in fact i money for those debates in there at those businesses in latin america i do want to just make clear as i'm saying this the there are any number of forms in which this process can take place and that's why we provided an example that filled in some of the details just to make it a little bit easier to understand there are no you know we can't obviously identify the specific a specific set of transactions that give rise to specific money one incident of money laundering i appreciate that and therefore what this is is simply saying money laundering but it's really not saying anything more than that was more concrete i don't think that's quite right i think again you could fill in the exact illustration that we've been discussing with the very designated companies that are discussed at other points in this summary group bubble of bank the transactions related to the millennium plaza and so home all but to do that with specific dollar amounts and on specific dates i think again would compromise law enforcement sensitive information but the information is there we can only show what i'm doing i don't take you to disagree with me all this is saying is money laundering by a group and the others named it really i mean and what you're saying is yes that is all it says and it cannot say more well i think we're saying right as it were the second part is certainly true the first part i think there is saying more than just money laundering occurred it's identifying the institutions that were used to launder this money hard allegation i think is a good example were talks about a specific line of business at a specific time period it's a year it's not a specific date but a specific time period and the specific individual the specific narcotics trafficker so there is linking up some of this information that in a way that i think is and just to me to illustrate this point i think it's helpful to know and i don't want to go to part of the record here but because plaintiffs raise this audit that they submitted to ofac in march that audit does exactly some of these things it focuses on the specific transactions at some of these duty free stores and i should note that audit although they frame it in their brief as though they undertook this audit at the suggestion of the district court the audit was submitted in march of twenty seventeen a month before the district court issued its ruling and obviously the audit process had to be commenced much earlier than that so this is at the stage where the only information they had is this summary and they have gone about trying even before the district court's decision to try and find ways to go about providing it in exactly the method that we've identif they do have a target to shoot at there are ways that they can go about trying to rebut some of the specific allegations how and why was the government in a position to do list in this room now yet miss romo delisting was based on actions that she took subsequent to the designation to remove herself from the employment of an affiliation with the designated entities and individuals so it was not based on you know her claim or any evidence she submitted to show that the original substantive money laundering findings were inaccurate it was based on her simply saying i'm no longer involved with these people and that's what the delisting for her was based on the edges just know that this delisting process the just because they came up the march information to ofac as part of that the list of requests that's just a separate parallel proceeding but since it came up so i don't take you to dispute that the government would be willing to have declarations from the various involved agencies asserting that everything that they have redacted has been redacted that their request is in fact necessary to redact because it's law enforcement sensitive that would not be a problem for the government that's right if the government i think we more than willing to provide declarations justifying the redaction again they haven't done it here as the court knows because we didn't take in the district court didn't take plaintiffs to be challenging that but yes i think that's information the government could provide and the government would have would be able to arrange for either this court of the district court or both to look at the information and yammer right again subject to the usual coordination with the law enforcement agencies and the ordinary procedures to ensure that sensitive just to start with the point you raised judge billard essentially what this is saying is that group we said laundered money through its various business facets that's exactly what the press release said that's with the designation notice that if that's all that's required that renders the right to it gets in terms of the specific examples identified by the government allegations related in an adult walk at balgo a bank millennium plaza we raise us in our brief and that's why this is so problematic this blanket redaction is when we got this administrative record it wasn't just redacted various parts of it were entirely withheld and the justification given for withholding those entire parts where they related to individuals in a dog a bank millennium plaza that were irrelevant to plaintiff's designations the government said that the brief below they did not pertain to poland's designations which was puzzling at the outset because if they're saying that a bill walked into the co head of a money laundering he shouldn't have to fill in the gaps here absent any evidence in the admission of hypotheticals the government's lawyer said that some of the stuff in here is made up yes we have brought in there a challenge here to these to the sufficiency of these disclosures that's because the kingpin act is an extraordinary really powerful tool we agree with that power we're not challenging that power we're challenging its implementation precisely because it's so extraordinary it has to be applied in a responsible constitutional way that gives it doesn't it individuals the opportunity to meaningfully challenge the designations that wasn't done here the district court order should be reversed in summary judgment granted for the pellets thank you