at the outset that this is an extraordinary case on an important issue in which the government has taken on a logical position c j stansell for this court as detailed in our briefs because a man was gruesome this is the exact type of case that calls for the public accountability that congress and the freedom of information act to promote the relief that we see from this court is extremely limited were simply seeking th elements confirm or deny the existence of documents related to the duty toward mr showed or at the bare minimum for the government to meet its burden and logically explain their glow mar response in light of spokesperson brooks person was speaking on behalf of the bureau i you know believe well our it is our position that the department of state the official spokesperson for the department of state state was speaking more than just for the bureau of research intelligence it was in fact speaking on behalf of the entire united states and i'll just quote the particular statement the deputy spokes person in front of the american well you quote it so i don't really didn't mean to interrupt judge millette slot of questioning right and your honor i'll say that i can think of nothing that's more of an intelligence a matter of intelligence than a clandestine plot by foreign government to kill a dissident and so the department of state can't simply put out the facile preface and just a race the rest of this statement it was if it wasn't speaking to us that intelligence issue how said the united states had no advance knowledge and place in a it's not unusual for press spokespeople various agencies or various organizations to use a lot of words in order to say nothing because that's and i hope judges do that less often than you know p r people but you know it mean this is a possible that this the state department person was asked a question it was sensitive matter and part of their job with the answer it in a way that was responsive enough that the reporter would move on to the next question but not so responsive that they gave away any intelligence matters your honor again that the intent not to speak is not because your honor the deputy spokesperson said plainly the entire the that i can definitely say united states had no advance knowledge and the deputy spokes person speaks on behalf of the entire department of state the bureau research intelligence included and so even if your honour's don't find this statement to be unethical the spokesperson for the department of agriculture was asked by a reporter this the department of state the preeminent agency on foreign affairs spoke on behalf of the united states here and the entire united  your honor your question was about the department of agriculture and whether or not we can take that statement to speak on you know matters look outside of its purview and i say absolutely not your honor but the for  for government agencies before this court our members that i see there are members of the intelligence community their members that are all bound by the duty to warn someone says i'm speaking on behalf of the united states i it purporting to speak for the entire united states on a matter directly related to a shared responsibility a shared duty that not only is your duty but it contemplates information sharing and collaboration and when say if this court does not believe that it's an official acknowledgment it is still contradictory record evidence that the district court should have considered in contemplating the bloem are spot to so you know i can i can say contradictory record evidence and official public acknowledgement doctrine because that's the doctrine that is want to take a step back here on earth and and just speak to in plain language about what the government is asking you all to do here the government has said that to acknowledge there are no response documents is to acknowledge an intelligence failure a gaffe an intelligent to be clear the entire world already believes that there is this gap because the department state official spokesperson got up before the american people got up before our allies and our enemies so i think that this way and  let me interrupt i think there's something question begging about what you're saying that the whole world believes it because the state department person said it but one of the questions in this case for us is do we actually think that the world believes the state department speaks that's a member of the intelligence community and they were speaking their statement the specific we get to a matter that means that their statement the united states had no advance knowledge would mean that there's no duty to war for any of the intelligence communit you've said a couple times just the preeminent agency for foreign affairs would you and i agree with that but would you concede that it least the perception of the state department is that when it comes to the intelligence community it is not the preeminent member in intelligence is at the head but that to be clear the harm that the government is contemplating here and this is why this statement directly contradicts the harm that the government is saying is that people would know more by acknowledging the existence or nonexistence the documents o to our request the american people would somehow know more about the a gap in intelligence than simply positing that that this statement contradicts that and again you know that is one piece of argument we again maintain that is official public acknowledgment and also just quickly point out one of the other logical gaps in the declarations that means this course of reversing a man says the government has breguet to that point just one more question one official acknowledgment which is we seem to have precedents pretty strongly confirming judge walker's general instinct which says it doesn't it doesn't matter whether there are disclaimers or not one agency of the executive branch can't officially acknowledge for another and we fly that principle in for giani where employment relationship and same thing and more as between f b i and cia both of whom are under the umbrella of the intelligence community right so st your honor i'd just like t here on there's so to address the question we believe that this is a matter of st impression for this court and this court has not made so strong of a statement as to say under absolutely no circumstances can one agency  executive branch including those with no duties related to national security could obligate agencies of cross ability in that sphere to reveal classified information perspective submit that miles away from the case that were presented with today and which again it s an official statement by the department of state the preeminent agency on foreign affairs speaking as a member if a member of the i think the element speaking on an issue that directly relates to a matter of shared responsibility  which all of the i c elements before the court today are bound and not just speaking for self but for the united states government and so you know i think again this is a distinct situation from pru goward and it makes sense in align with  court in align with merino and in the center for public integrity to apply that reasoning here why are facts maybe novel the reason that we're asking this court to apply is certainly not  answered yes and i will say that this that for those reasons of course you are a person a man to the district court for the quick question for you so what is so the state department wasn't original defended in this case and  highlighting the fact that the department of state did not issue a glow our stock here and they did that in part because of the statement that they made is exactly what we're asking the i c element to do those issues now we're was speaking gathered or where the blind spots are seems a lot more compelling as applied to agencies whose job it is to gather intelligence and it is applied to the state department so fact that the state department didn't glow mar this doesn't seem to move the ball very much for you right and again that's the reason why we dismiss the department of state and the department of state's you know response to our global are intact and yet as you're saying judge does not impact the burden that the government has here before this court it does not impact the burden of justifying the source or intelligence method and they have not explained why that's the case and so they have this huge logical hole in their in their declarations that is but they have not explained why information about mr bush showed isn't the type is of the documents that could be documents about you know the documents about threats that would trigger the duty to warn but also could be after the fact assessments are again you know as we put or that could be employees have that credible response that it could be also after the fact sort of assessments and discussions about the duty to warn but this specifically i greet your honor with your statement that if duty to warn records exists that would and those records were about contemplating whether or not war mr shoji that would require there to be intelligence about threats to mr life i let her the governor about threats to mr shoji is of the type that its mere existence where at the globe our stage is mere existence would reveal information about the source of that intelligence or the particular method so that's the gap here it's not we're it's not that the if you documents exists you know we're necessarily tarot i think we are because we're you know we are saying that there could be after the fact assessments that we we understand that there could be some documents that are about threats to mr bush and intelligence about that but that's not that matter issue here their burden is simply because where the global are staged to say it mere existence of that intelligence would reveal something about the source or method of that any non glow more response would necessarily implicate intelligence activities intelligence sources and methods the requester here sought records concerning the duty to warn under directive one hundred and one as it relates to not the broader kind of requests to issue an open society case but specifically tailored to that duty to warn and that directive triggers a duty to warn or only if an intelligence agency has credible and specific information indicating an impending threat to a specific person of intentional killing serious bodily injury or kidnapping so necessarily therefore this request to the intelligence agencies would require an agency to confirm or deny the existence of intelligence relating to specific credible intelligence information about an imminent threat so intelligence at a point in time about a particular person mr shogi or individuals who wish to do him harm and the decorations provided ample support as the district court found for the agency's glow mark requests here and of course those declarations are entitled to is that the government took the position that the press spokesman says person would not preclude a glow mar but that it was choosing not to and there's not that i'm aware of your honor and i would just add here obviously the plaintiff here has not argued before this court that the state department's ability to or willingness to search for response of records you know obviously a duty to warn does contemplate some disclosure of limited amounts of information for the protection of individuals  any i don't know under what circumstances those information sharing information sharing a stonor whether there are commitments to to ensure confidentiality i simply don't know speak to the hypothetical because in practice i just have no knowledge of how those notifications are made i do think though that it it really highlights the danger of treating disclosure by one government well i think we still could under exemption three because you're talking about the type of information that is also protected from disclosure by statute right regardless of any showing of harm to the national security  correct your honor here is a rule that authorizes the well i think obviously the rule under the foil is disclosure to one person as disclosure to anyone but i wouldn't necessarily transport that rule wholesale to disclosures made under directive one hundred and one dollars where there is also of course a judgment made that disclosure to the threatened individual would not improperly undermin fact this court's case law there are many many many cases in which the government initially withholds classified or statutorily protected information and then as a matter of policy makes a subsequent judgment involvement in that project and obviously the government ultimately made extensive disclosures i've not aware of the precise timing but obviously this court held repeatedly that the government should not be penalized for its willingness to provide perhaps as a matter of discretion additional transparency into secret government operations the court recognized that principle and larsen there that the exact same information that government  and again because the directive imposes no hard and fast requirement no matter of a threat to national security to warn i'm struggling to understand exactly why you think to say nothing and you and i apologize i was not precise your honor but my point is that the obligation to warn in a directive includes exceptions where disclosure would improperly compromise sensitive national intelligence sources or methods or foreign government sources and methods that's all and i come back to a question that judge millette was asking about the request of the state department and maybe we can kind of logic our way through it maybe not but if if the for your request or asked for a response of documents from the state department which i don't know why they they wouldn't have and then the state department provided or didn't provide documents and said this is as much as the state party is willing to give you and is able to give you and it didn't if the state department's can't let a been illegal for the state department and not to tell the plaintiffs here we searched everything except our intelligence office but we didn't search that because you're not allowed to have it in point of fact my understanding is that the state department took the position that while its press spokesman statement and frankly to my mind it's nick stream li ambiguous and internally incoherent statement that doesn't school is anything but that statement didn't amendment goes to the state department says i want the following records and the state department doesn't involve our instead the state department provides them with some records or the state department says we're not providing you with any records and here is why when the state department does that when the state department had an obligation to tell the plaintiffs we are not looking for documents in our intelligence office if in fact the state department did not look for documents  its intelligence office i think that state department would have had an obligation to complete a comprehensive search for every place reasonably likely to have response of records not knowing the scope of the actual search  question which i believe was in part negotiated between the parties i can't speak to more than that i don't know that that's responsive to my questions thank you i do think though that the fact that the state department might have come back and said we have no response of documents sheds essentially no light on the validity and again putting to the side the fact that they have not argued this that the plaintiff has not argued this that it sheds no light on the validity of the glow mara's to the other agencies because there would be no reason to think that the state department would have any knowledge of the existence or nonexistence of response of documents as to the other agencies and just turning to those i'm sorry judge katz us on official acknowledge merino seems to stand for the proposition one component of an agency can officially pond and for or official acknowledgement purposes can bind another component of an agency why shouldn't we treat the intelligence community as an agency for these purposes it's pretty well defined group people think of it substantial degree of coordination and it's a lot more than just some ad hoc task force why should we treat it at way well i have a couple of answers judge katz says st i think it's just flatly inconsistent with this court's case law and more as you pointed out in your earlier questioning the statement by the you're possible well nd i think the argument just proves too much and really is inconsistent with the way this court understands official disclosure true the intelligence community  does in some way coordinate their activities but the exact same executive order that the requestor point to here executive order twelve triple three also directs every executive branch agency to coordinate and work cooperatively with the cia to provide national security information intelligence to the cia and obviously all executive branch agencies or at least you know perhaps excluding the independent agencies all other executive branch agencies are intended to work cooperatively under the auspices of our unitary executive the president presumably with the president planes that coordinating function you know as mediated through the national security council we wouldn't think that any executive branch and see what list this court has consistently held that any executive branch agency can't officially  knowledged information on behalf of any other and yet that same logic would seem to flow if in the president's sort of yeah but that i mean that's one level of jannah generality up where we are  i don't believe so your honor again you know my or the entire unitary part of the executive branch well that the sort of coordinated role that the requestor here points to is either under twelve triple three which does not oblige one intelligence agency to share information or you know make sure that every position it takes is consistent with that of every other i c it does provide for the o d n i to mediate certain types of disputes but it doesn't have some kind of formal coordinated single role that they play in tandem any more than the fact that the n mind the cia i think that would be a harder question particularly as related to directive one hundred and ninety one that's why i'm asking the question so if i can now this sort of networking this relationship ninety one which is what i understand your question to be focused on directive one hundred and one dollars envisions that the o t and i will resolve any interagency disagreement about providing a warning millette i think the resistance i'm having is that this court has repeatedly recognized that the fact that a particular i c entity is operationally engaged in a region with a foreign government in particular intelligence sources and methods might itself be independently significant and so you know if that discloses intelligence information but not the particular government entity that might be involved in collecting that intelligence agency would that preclude for example the cia from invoking a glamour i don't believe so if the cia could any additional particular issue because essentially what happens in your stands in the place of kind of a parent entity in the same way that for example the president stands as a parent entity for the cia i think the odeon i plays a coordinating role but  not you know the cia just not directly report to the o t n i in the way that this court envisioned for example in the a c l u vs cia case where the court was talking about statements by the president the president senior counterterrorism director at at the instruction of the president and the cia director you know in the court there envisioned that it would be either an authorized representative of the agency or a parent searches on the i c element before the court i maintain that it has no bearing on the government burden to justify global response here what was the searches that the department of state because the department of government has said statement that just now in the argument that there was no notification have been made so that seems to be an admission that they did not want t for them to meet their burden and the mid more detailed declaration that could be reviewed in tamarack necessary that have that information that's an option that the court can totally take alternatively the score at least could reverse in the manner of the district court saying district court under the summary judgment standard use i have considered all of this contradictory ek rev and an on the record and you should do that honor man there's just too much use the technical term too