good morning in may it please the court the tears rebar is a matter of significant public concern human rights groups mainstream media and members of congress have all expressed serious concerns about the potential for arbitrary application of the cheer three bar and yet the government wants to keep the names of tier three organizations a secret and the district court's ruling would enable them to do so by improperly expanding the scope of exemption seven under for ya but exemption seventy does not apply to the names of tears three organizations because first and foremost  honour's names are not guidelines under exemption seven and the district court was incorrect to find that the names appear three organizations are guidelines because immigration officers prior educations and future educations does not transform the names into guidelines because the names are merely reflective of the guidelines not the guidelines themselves guidelines by the nature your honour's should be uniform and able to be replicated in a number of circumstances no matter which adjudicator is applying the guidelines under what circumstances or when and so when the government says that they use the names as a guideline when they are determining a particular applicant's admissibility what they're really saying is they are using the guidelines themselves they are saying that they are using the names of a tier three organization that has been determined in a prior adjudication as a shortcut or as a proxy for using the guidelines from scratch and coming up with the same result do  typical of all of those that would imply that this kind of organization is going to be a guideline no you are actually it's whether the circumstances in which the particular applicant had a membership or affiliation or involvement in that year three organization meets the criteria that is stated in statutory definitions for what a tier three organization is and so in a particular application an adjudicator needs to look at the circumstances involving that organization and say ok this organization did x y and z and therefore it is or is not a tier three organization by virtue of applying the statutory definition and other guidelines that have been publicly available to the organizations characteristics as the one government says the government says is false the government's to clarence demonstrate that disclosure of the requested names w allow aliens who are tenants circumventing the law to conceal or misrepresent ties that they have with two or three terrorist organizations so what what what is wrong with that argument well first of all it doesn't address the threshold question of whether these are act names or actually guidelines the court needs that if you know i'm not asking you about that i'm asking you whether this is a sensible argument that they're made no your honor it is not the reason why it is not a sensible argument that there that there were disclosure of tier three names will necessarily lead to circumvention of the law which is the standard under fire is because there is no logical risk of circumvention by disclosure of the names the only individuals that can circle invent the law which to be clear is the i n a that immigration nationality act are knowing terrorists because the only ones who can circumvent the law are those who are not entitled to an immigration benefit but who would receive one you do say knowing or known knowing so they got to know they are pure they have to right if you are if you me together not just now we've been called a terrorist i did know that and that's one of the reasons you get off the hook thing that is true there is an existential and under the tears rebar for unknowing individuals who at the time of the actions did not know that the organization that they were alien who belonged to one of these organizations terrorist groups but didn't know whether the government had a den that appears to be the government's argument argument but it is unfounded your honor because at the time of the application one is presumed to have read the law have read the particular definitions of a tier three organization and will know whether those definitions would apply to that particular individual's actions or affiliations in the past and if they are deemed to have known that they will lott that there are that is not a surprise that is not something startling yes some applicants lie the question is whether disclosing the names of tier three organizations will change the behavior of unknowing terrorists and the answer to that is no there is no logical reason to believe that someone who knows what they were involved in before would have disclosed that fact but now in the world where the names appear three organizations are disclosed that they would they would have somehow hide it and then that doesn't make any sense or honor and knowing terrorists will always try to do to keep that information from appearing on their application whether it is the chair through names or disclose or not and so the really is no of an organization he doesn't know whether it's been classified as a terrorist organization if the if the name is public he will focus you know efforts to circumvent the law denying any connection with such it depends on what the connection is right so if the individual knew obviously that they were picking up a gun and creating bodily harm or bodily our property damage that person knows at the time of application that they already are considered to be engaging in terroristic activity that would bar them under a tier three if that individual did not know that you organization that they had affiliation with it was involved in violent activities for example and had no idea and had no reason to know then at the time of application that person can invoke the unknowing exemption that you mentioned judge but he may not you may not know that it has been a death for say terrorist group or the government the government reveals the name of it and that he's a member time assuming under your hypothetical that at the time of the actions he really truly did not know that you know he was thought he was raising money for example for literacy for children in his area and had no idea that the organization that he t he doesn't know whether the government has a the name of the organization may know a lot about it and he'll try to give reasons why he is not part of that organization he would still omit that information whether or not remailer he would still omit that information whether or not the name is disclosed now because he is presumed under the law to have known that the activities that he engaged in or she engaged in were actual member of an organization and that the government is interested in them but you know he doesn't know the government's interest and he doesn't he can't get the name of it him from the group your honor that hypothetical assumes that the individual has not read the definitions which this court has held are not in big us that you begin with you should not ambiguous you might be broad but they are clear and so who are finished with i have a question for insurance so under that circumstance even if he hasn't picked up a gun if he knows the organization's aims their goals and their activities he is presumed to know that he is engaged in terrorist activities at the time about occasion even today where the names are not disclosed and sarah therefore there is no logical belief that he would act any differently in trying to already circumvent the law today in a world tomorrow where the names are disclosed there is there is no change because i know you are missing the point that the revelation of the name gives him more information are concerned about what's the abuse here you think wholesale numbers of individuals are being not considered because they belong to a soccer club that the government thinks is and been infiltrated is that is that your concern there have been a number of cases in which there has been a long delay because individuals do not have been tagged as members of tier three organizations but have been on a waiting list for their determination of their immigration benefits so if they had knowledge of the organization how would that speed things up well in and that's workin sansa but if they truly were an unknowing affiliate of a particular organization they could help build their case from the outset to say this is why i am claiming the unknowing exemption this is why i didn't know this but without even having this information out there immigration applicants are in the dark and they don't know why they are being how do we balance out against our deference to the executive matters of national security i appreciate what you're saying about the leg but there is a balance that has to be attended to here  and how wholesale do you think the possible abuses here well based i think it's quite quite widespread your honor given the great national attention that it has received you know w challenging the structure are you of that is not the subject of this lawsuit no of course and we're only trying to get under for the names of tier three organizations and which is not exempted  and your honor that that is that is the critical issue the question of the breath of the statutory interpretation is for another day is for the legislature but disclosure of the tier three names would enable agency action to under public scrutiny and it would further the goals of for a transparency to all citizens for its government actually what it was specifically does someone do with this information well first of all it furthers the aims of for you it allows counter terrorist organization that also uses guns and has reasons to defeat and and i have this kind of concern that you know to school to syria there are it's very blurry about who's on what side but we had some on our side but they seem to get weary of who gets bombed and he'd be pretty indiscriminate my concern is what you stated you know the jihadists and whatever the isis i don't know i have a lot of concern about christian groups who are being slaughtered and i don't know are there any organization that is violent in offsetting trying to fight it is that anything i want to ask the government the same thing is there anything in your focus about people like that well certainly the concern is that the arab would be violent i suppose in return whoever the violent people  and and under that death under the definition as it is they would be considered a tier three terrorists as are individuals who helped allied forces of the united states and they have been barred or at least been considered please the court as the court is is aware there are two steps to this seventy test one is whether these names are guidelines the second is whether their disclosure would help circumvent the law let me jump right to know what i think is probably the most difficult part of the government's case and not beat around the bush plane if asked i think quite reasonably whether these names whether the names themselves are guidelines or or whether there  guidelines and these names are merely the result of applying the guidelines i think it's a fair question and the the answer to that is that the district court found as a factual matter based upon the government's declarations that immigration officers use the names of the tier three organization as an indication or guideline in future adjudications to determine the applicants it miss ability to the united states that's what the district court found based upon our declarations and under one standard of review used by this court we would say that that is not clearly and i think it makes sense because what plaintiff is calling the guidelines is what we released to plaintiff in a very broad foyer request and in the interest of transparency we released a whole set of criteria and so called guidelines and there in the appendix at pages ninety eight follow but even plaintiffs themselves in their brief they make it very clear and they insist that the reason that this court upheld the constitutionality of the statute is that the guidelines and what those terms mean are self evident and that's what they said about the got the so called guidelines that we produced they are self evident that they are organizations that engage in terrorist activity such as funding and supporting terrorist activities that sort of thing what is not apparent what is not eviden as part of the guidelines is precisely what plaintiffs what's that's why they're here in court today if these names were so self evident if they were already public as plaintiff says they wouldn't be wasting and that's that's what they're seeking here i just met you just a little bit with my question to her when you look at a terrorist organization is it their methods or their motive because i used the word counter terror where there are some pretty bad terrorist organizations and there were no i don't want to mislabel with the good guys because i use the word christian because that's a whole group of people who are being tortured and killed in their terrorists doing it and the question is if the people fighting them with guns and whatever else they get a hold of can do they come under the label of terrorist because least half of it that i'm with it talks about people just as plan of say the statute itself that it talks about people who engage in terrorist activities and he gives examples of people who aid and support the enemy by giving financial monetary support who use explosives and so under your butt there who's the enemy under your might consider the it would be the united states the united states of america would be the enemy and under it your honor is correct i don't wan mince words here it is a broad definition and it might well cover groups that but there are there we are sympathetic to it's ridiculous the terrorists on our side who are who are fighting against you know isis or whatever we treat them as terrorists no not necessarily krisna of course of course on our side terrors absolutely correct absolutely your honor is correct and there are that's what says these groups are not here three terrorists in the statute also there are some groups that used to be i mean this is a fluid situation true i mean it changes all the time once and particularly in in the middle east sometimes they're they're good guys and then they become bad guys and vice versa and there are situations where groups were cheer three terrorist organizations but then they change sides and they became our allies they were taken off of that list and it's it's it's a fluent situation and that's part of the reason we don't want to give up that list because it is a changing situation and we don't want to keep the terrorists up today i think that the answer basically and i want to emphasize it because i i think it's a hard problem it i think it's the hard part in my case i think as this court indicated  the second part about circumventing the law is is is just logical and it's well supported in our declarations but this first part i want to be clear that the plaintiffs made a big deal and i think it's a legitimate point in their brief that there are there are no lists ok of these tier three terrorist organizations so the players would think it's as simple as the adjudicator ok sitting out there in  syria or afghanistan or wherever they are they're out there out in the country is going to be talking to somebody and he's going to say well i'm a member of or i've given money to x and that that guy's going to look over here at the list and see if they're on the list that's not how it works because it is such a fluid situation so a logical question and one that we discussed a lot in preparing for this case is how can it be a guideline if there isn't a list well a give you a couple of answers to that because i think it's so hard in this case and it's the heart of this case is what is a guideline well it's one of really this is just words made much more interesting question is  what is the hot what is the harm to the government if it discloses the names of these terrorist organizations well right along the lines there of there is no list but i can say with some confidence that if this court were to release the names of these two or three terrorist organizations there would be a list in a matter of days plaintiffs would compile a list for their clients it would be on the internet i know ok sadly it's own from the list i think it's only natural and it's also spelled out in our declaration that if people who are applying for admission to the united states was given a list of these organizations and were told of if you're associated i'm not suggesting the plaintiffs would do this these few seem like fine organizations but if they were told that if you're associated with any of these organizations you're probably not going to get admitted to the united states of america people are going to dissemble that i think we don't need expert testimony we don't need examples although we have given examples in our by dissemble the government the government would already have a den of fide these people as members of the screw not necessarily is that i'm in right not necessarily just closer because here's the problem adjudicators learn about these groups primarily from the people the applicants are coming in the applicants will say i gave material support or i helped or i pull for or i did this two activity that's what the record in this case indicates are both our declarant said that we learn primarily about the activities of these tier three organization from the voluntary admissions of apple why did they do that well that's a good question and i tell you the reason that they do that they do it one may be a lot of them don't know what the consequences of are going to be by vice lights by stating that they don't have they don't have lawyers let's say or the name of the person to attack and of course it says there are activities which is not redacted and then it has the name of the organization and the adjudicator been called upon to decide whether they are entitled to a day so they are right so what you're saying is are timeshares there's some truth to it and sometimes the alien figures out well they know what i belong to this hollow come clean and i say i used to be part of this group now i've seen the light ok that ended stan but how does how does the disclosure of the names public disclosure of all these organizations how does that affect this process by which the alien it mit's his membership in one of these dubious groups well as are declaring stated i think is is your honor which doesn't say do you belong to x y z it will tell the government government ask you know what did you do in iraq or what have you say i was a member of qaeda but i've changed my my stripes sense right well in some cases i have just given the name to the public how does that change the incentives of these people well it depends i mean if they if they don't know that this was a terrorist organization they they might you know go in and tell the truth and argue that they didn't know and therefore they're entitled to an exemption or if they were operating in an interest that would also entitled to get their and they do things they bomb people they do other things to try to beat the other side and they would come under the label of a terrorist i think well as as i think i said the government has made an effort i mean congress has made  directly injured flunks question which he asked plaintiff about what the concern is that a person has a right to appeal these decisions ok and plaintiff is incorrect in saying that this is some kind of secret society that the government is involved in and not telling anybody if a person is declined an exemption they can appeal that to the board of immigration appeals and ultimately to the district court and they can make their case that this group is mistakenly on this list and they can make that argument so it's not secret and they do have due process rights i would just like to call it includes without secret if it's not secret why why don't one hundred terrorist organizations how would that affect the interviews the processing of these well i again i don't mean to be repetitious should closer but i believe that it's spelled out in our declarations that people w but if there was a list out there that they saw beforehand the question is would they still come click ok and why not because they're been shown the list and they've been told that if they're associated with this list they're not getting into the united yes   no but if but but if there's no list and yet they have incentives for some reason to disclose having belong to a terrorist organization then that's exactly the same result well i mike my time is up i would like to make i believe i've i've given the best answers i can hear a lot rick you've given any chance because you say on the one hand the alien who who is a terrorist organization  h is not public but he worries that you know cia knows about it he will disclose his membership off and then say but if it's public then he'll conceal solution congress made the choice to disclose to or one in two congress specifically made the choice not to disclose the tear three names and has repeatedly failed to him in the statute over the years not to include that plaintiffs can go to congress and get congress to change that mr frank one of your declarant is mr martz from the state department yesterday so is there not possibly  diplomatic aspects to this matter oh i'm speaking about shared intelligence with other countries concedes that speak to these issues so you haven't said that but it seems to me that in the in the appendix a fifth a one fifty four paragraph ten i would like to point out that we're not just talking about admission to the united states this affects removal proceedings visas which your honor is talking about people who are associated with these organizations cannot get visas so it applies across the board the final thing isn't is i think it's just obvious that in this in these times when we are accepting a lot of refugees into this country the last thing we want to do is i mean everybody's talking about tightening up our vetting procedures the last thing we want to do is is loosen our vetting procedures to allow people more  easily to get into the country who don't belong here and i point case thank you mr frank there is some other exemption that applies or unless congress has said that some information should be classified or confidential information is presumptively public so i just wanted to correct that statement from the government's statement furthermore the reason why there is a harm that's at issue here a harm to the public interest is because there is no check on what the government is up to and judge mannion this is where i think your concern don't know which good guys are being swept up into this broad tier three definition because it is it isn't backed right and it would in fact include individuals who are fighting on the governor on our behalf if your experience encountered some of your good yes your honor and in fact i would direct you to our reply brief that pages eleven through twelve in which we indicate a number of examples where individuals who have been fighting on the good side have now been  held to be subject to the tier three bar and then have to find years and years and years there's a very interesting washington post article about this exact issue in the record that discusses you know  plus year delay while people are waiting for the tear three bar exemptions to kick in and the reason why we need this information exposed to the light of day is to allow what the government suggested that we do petition well and i j c would also prefer that as well your honor but this is the first step is to knowing what the government is up to you and the balance judge posner that you asked about earlier has already been struck by for oil for his stated that the government is only entitled to withhold it if it is in fact a guideline that would lead to the circumvention law and for all the reasons we stated before i do see that my time is up this is not in fact a guideline as the names and cells are not guidelines and there is no difference in