granting the government's motion to quash in its entirety which was in large part inconsistent with its underlying findings on state secrets and i quote the district court it did not find convincing the government's claim that merely acknowledging or denying the fact that the cia was involved in a facility in poland poses an exceptionally grave risk to national security that's a core finding it's not merely an exceptional finding in instead that any discovery it would allow would not be useful in the farm investigation that was an improper grounds for decision both under reynolds jefferson and indeed under twenty eight u s c section seven hundred eighty two the government attempts to shore up the district court's instance inconsistent ruling with three arguments that the district court itself didn't make or indeed came out the other way first again despite the district courts express finding that mitchell and jessen were not government agents the court excuse me the government insists that their testimony would constitute its own acknowledgement of state secrets that it cannot be heard to admit this is a non sequitur these facts aren't secrets and mitchell ingestions testimony would  on behalf of the government second it argues that this court should announce a discovery exception to the reynolds doctrine allowing courts to skip the third set the third stage of the re disentangling privileged written on privileged information and third it argues that the district court had discretion under section seven hundred eighty two to consider whether non sensitive information would be useful in a foreign investigation all three proposed rulings would be errors let me first address whether there was a secret and whether mitchell ingestions testimony would can constitute any sort of acknowledgement on behalf of the government the district court based on the findings of the european court of human rights as well as the polish government's own acknowledgment in conducting the criminal investigation at issue concluded that it was no secret that the cia operated a dark site in poland the government hasn't contested this instead it argues that it cannot be heard to officially acknowledge that fact that's important and it sets this case apart from the entire line of precedence regarding state secrets all of which depend on there being an actual secret as at issue here it argues that because most of our document requests and i would hasten to add not all of them but most of our document requests mention the name poland the implication of polish places and persons is inescapable and even if the subpoenas were modified to remove those references it would be inescapable first of all the government is ignoring that our subpoenas for oral testimony do not request do not mention poland as of course they wouldn't and however the court decided to ultimately cabin the scope of discovery it could certainly exclude questions that directly related to poland if it has to  wouldn't when the whole purpose of the deposition or oral discovery be in connection with what happened in poll well that the isn't that the their argument i just this this whole request derives from sort of an indirect request  the polish authorities well i mean to be going on your honor i disagree that it hinges on a request from the polish authority as we've said indirect well even indirect it what that wasn't the actuating events if you well you know our client has a legal rights under polish a lot of present this evidence and his you know he's doing it on his own behalf and in his own interest and you know just as a starting point in fact he has the right to appeal if the prosecutor ultimately decides not to lay charges not denying that at all it certainly is the case that they are in fact receptive and that's something that the district court found in in granting the original subpoena request because of course that's a but isn't  baseline though isn't it isn't it the fact or correct to say that all this is taking place because of allegedly what happened didn't hold but as of now i think it's fair to say as well that the polish prosecutor appears to know the who and the where the government does not want to admit where as this is not a question of whether they need to be forced to admit the where w record without reference to poland certainly we would be entitled to ask fully you know what were the conditions of confinement at the site what let me use the word what tortures were inflicted on this prisoner that's it's that's declassified in fact if you look at the senate select committee report it's known that these tortures were inflicted on opposite beda what's not certain is where in the saline case the same kind of testimony was allowed with respect to a site that was always referenced as detention site you know if the government didn't have a hand in disclosing the information that the government should not be put in a position where it's forced to school if it were a question of the answer to your question is that i can't think of a case exactly like that there are no cases there are two cases that i can think of where where this core has has held that the fact that the government ha itself has made some disclosures has lifted the veil of secrecy from from right particular categories of information jefferson davis plan and i'll hire a man however neither of those cases said that that it was dependent on the government's disclosure you know if the government just got decided to declare that the location of the courthouse is a state secret that wouldn't make it so it's more than what the government thinks it is here here we have a case of extraordinary notoriety let me ask you so under a case law does the court do we have in the district or for that matter have the authority to say well government i recognize that you don't want to admit this but this just really isn't a state secret it's just doesn't i just isn't that rock bottom qualify as a secret because everybody knows through at least through the european court ruling that there was a site in poland right the court is supposed to give a certain degree of deference to the government it also has to look with a careful and you know exact quote a careful and indeed a skeptical eye at claims of state secret so there there would be cases certainly where the court would disagree with the government's claims that there was a state secret and in fact there have been such cases not in a not in this circuit but  example the d c district court in virtual defense and development versus the republic of moldova did find that certain state secrets clams were not state secrets and it allowed discovery of a portion of certainly has authority and has claimed the authority to to review a claim of state secrets substantively and it should tell how can i interject a question which may not be european you know here as opposed to a domestic tribunal like a federal court in the u s i a case of that nature doesn't come to mind your honor i'm not aware of one but i would say that you know there is to my mind there is a relevant distinction which which here is helpful and that is that in much of the case law in this circuit  one of the main concerns that is expressed is when you're dealing with a case that you know a case is a matter of storytelling in a way and there are conflicting stories right when you are when you are planning to present a case and take it to trial there is an increasing risk as you progress towards testimony in open court that something will go wrong and something will be blurted out that shouldn't be in this case we don't have that issue mitchell unjust and will never be testifying and poland whatever testimony they're allowed to give here will be within the control of the court and it will be a set piece that will be provided to the polish government i want if you finish with judge i am let me just take this in another direction which is you start out by talking about  and this is a discovery proceeding only there is no wonder like the case here in the united states is judge gould just referenced but how do you propose to disentangle or how should the district court go about disentangling what it felt was the that there was there were some state secrets involved like who for example how how should the district court go about that task in this particular kind of proceeding you're i see that i've already run into my rebuttal time i think just going to let you answer my question i really i'm going to also will give you several minutes of extra but i appreciate that the answer to your question i think is is that you know there are many categories of information that we've specifically outlined to the district court i would say it's our responsibility to outline categories of information for the district court to address and decide what side of the line they fall on if the district court were to disagree with our position on poland even though it's state of the opposite and its decision there still are a man's the opportunity to ask questions about abos a bad as treatment at detention site just as in saline where it was a detention site called and there are categories within that you know was he tortured what about his food what about clothing what about medical care all of those things  could be ruled upon individual a but the district court never initiated that process it was an error not so what do you envision the district court sort of identifying the categories of information the fall on the non state secret side right the deposition would take place in the government's lawyers would as it was a third in objection or whatever if they believe that a particular question went over the line actually yes certainly as in the psyllium case and certainly the parties could have a discovery stipulation which would outline any differences in procedure i have had the privilege for example of observing conducted in canada and when when a question is objected to it's simply say it for the court to rule on it or that's certainly possible here there's that wouldn't that wouldn't offend  us so there are there are certainly ways to manage that and it was managed effectively in saline with exact with respect to exactly the same categories of information and what about the document request so as to the document requests rule forty five of the federal rules allows the district courts modify them if if the reference to poland is inappropriate notwithstanding the district court said than the dr document requests could be modified to refer to detention site blue which is not a you know the existence of the site is not privileged as such it's been it's been declassified the polish prosecutor i believe as i understand it believes detention site blue is the same as the one in poland we don't know that to be the quality of his evidence regarding that but this is a prosecutor al investigation he's allowed to collect whatever disparate tax he can to try to make his case and we have a statutory ability to  for your planning purposes let me say this he could you give you five extra minutes that you've got to  you handle well both in three minutes or do you need five we're going to give your adversaries and your colleagues the same amount of extra time  i made a judgment that two minutes would be enough i'll hear my adversaries argument and if for some reason i think the courts permission if i think more time is required i'll request it than  minutes over you do not have to use all that time i appreciate that just gold and i hope not too may please the court i'm thomas byron from the department of justice i represent the united states of america i want to to matters before i begin the argument itself and that is first i do represent only the united states not the individual doctors justin and mitchell who are presented by christopher tompkins who's here at counsel table and who has informed the court that the doctors take no position on the issues secondly i think it's important to note at the outset that because this case concerns sensitive classified privilege national security information nothing i say today should be understood to confirm or deny any of that decision on either of two alternative grounds first all of the information that the petitioners here seek is covered by the state secrets privilege and statutory privileges the district court here disagreed with respect a single fact whether or not the cia conducted certain operations in the territory of poland or with the cooperation of the polish government now as the pump a declaration makes clear that central that question is the central issue in this case and the pump a declaration directly and in detail explains the harm to national security lately but haven't what do we do with the european courts find as if it does it just not exist i don't understand so i think just as the why other question was you know like when i was asking about whether or not the court can decide whether or not there truly is state's sure let me have this finding by the european court that you know these events took place in poland let me see if i can address that in two ways so first i think it's important to recognize that the analysis that this court in the district court are supposed to undertake under reynolds and japanese and courts case law makes clear is about whether the state secrets privilege is properly asserted over particular categories of information and here course the pump it directly declaration specifically addresses that in the terms of the framework that reynolds tells us and jepson tells us is appropriate which is would disclosure of the information be expected to cause harm to national security and a declaration here explains why it would so let me then a turn to the question that i think plaintiffs are arguing which is that that this court should second guess that description of the likely harm to national security on the ground that others but not the united states government have asserted certain facts or alleged facts so here is the european court of human rights and the former president of poland have have made statements that the plaintiffs rely on i think it's important though we pointed this out in our brief that those kinds of statements including statements by former government officials but media are not sufficient and we're not sufficient all as i recall from the jefferson jefferson case we didn't have anything like this kind of finding from the european from a court like the european court of human right so judge  i think that's there everything was very very top state secret i couldn't we couldn't even look at any documents as we were in the secure room and that's not i mean that seems like times have changed a bit so despise what's changed of course is that some information has been declassified since that time most notably in conjunction with the release of the senate select committee's report but looking at the senate under its own legal procedures and framework of course that's not binding on this court and this court has to follow a different set of laws and requirements imposed by jepson and reynolds under u s law and i think that's really important as the starting point that the correct analysis for this court we've course we acknowledge this court in the district court must undertake scrutiny of the assertion of the privilege but that scrutiny also mullan on this one point the district  didn't place much stock in your argument so just because i think you're right that the district court disagreed and second guessed the assertion of the privilege with respect to a narrow fact a single fact and that was the whether or not there had been  operations in poland where with the cooperation polish government that fact though would with course we disagree with the district court about that with the record here amply demonstrates the harm to national security that could be expected to result from disclosure of that information but it doesn't matter here because the district court nevertheless quashed the subpoenas as it should have and it was entitle to do so on either of two alternatives grounds that this court itself can affirm either because the state secrets privilege was correctly asserted over that information or as the district court here recognized under its discretion its broad discretion and the discretion here was not abused because the district court recognized and used the shorthand of usefulness but that had nothing to do of course with admissibility which is an argument that that zubeida makes in the opening brief instead reflects the court's assessment of the burden versus the need and the supreme court in intel made clear that unduly burdensome or intrusive discovery requests can be rejected and that's what the district court did here the burden is demonstrated by the way by the celing case itself the petitioners rely on so heavily in the depositions that were allowed to go forward there and by the way that they only went forward after the government made very careful extensive analysis just as it did in this case and the district court superintended the discovery there but they went forward with the participation of if i remember correctly eight different government officials and attorneys who sought to protect the information that was subject to the state secrets privilege in that case the difference in that case compared to here is that that case was not just about a single location or a single foreign government it was instead not specific to any particular location or any particular source or method location sources and methods are what remain classified and privileged in this case and as the district court correctly recognized this case is all about petitioners requests for discovery is all about trying to establish what happened in poland with the cooperation of the polish government and in fact the district court pointed out in its opinion at page sixty one of the excerpts that it would be disingenuous to do what the petitioners have requested which is to use a code a code or a code name for a detention site when the whole premise of this case is about whether they can prove what happened in poland i'd like to address as well two mistakes that i think petitioners council has made both in their briefing and in their argument today about how the state secrets privilege works and how the courts approach it first about the question of official confirmation we explained in our brief and in the pump a declaration in the record that official confirmation is the cynic one on that is  absence of which allows the u s government to maintain its position that it will not confirm or deny classified privileged information that petitioners make a different argument about official confirmation which just misunderstands the role of that principle they argue that doctors mitchell and jessen cannot themselves testify in a way that would constitute official confirmation but that just has nothing to do with the role of that question in the analysis instead the role has everything to do as the state secrets privilege framework makes clear with whether or not there would be harm to the national security from disclosure of the privileged information and the pump air declaration makes clear that statements by foreign government officials or the media or even the european court of human rights are not sufficient to equate or constitute or overcome the need for official confirmation by the united states government secondly the petitioners put great reliance on the third step of the reynolds framework for analyzing the state secrets privilege and its effect on litigation but that's mistaken there is no ongoing case in u s court here as i think judge quote you your question pointed out earlier instead that make a difference well i think it makes it different things to me that if you're all you're dealing with here the discovery situation yes that the district court its focus is very narrow and you don't have to be concerned about what witnesses are going to do you know control of lawyers i mean it's just it's a different scenario for me so based on my experience will let me see if i can point out why i think that cuts the other way just by is because first of all the statute seven hundred eighty two a itself makes clear that if information is privileged it is not an appropriate subject and that's what the intel court held this court has held repeatedly for discovery under a seven hundred eighty two proceeding that's a little different than the standard in ongoing litigation but the reason it makes a difference is because where  the privilege has been asserted in a case that's properly before a court that has jurisdiction over the parties in the dispute that court then has to decide after assessing whether the privilege is properly asserted what's the effect of that privilege  effect of withdrawing the evidence from the dispute here though the court that has to consider that question is the polish court the polish tribunal not the district court in this case because the district court in this case is its job is done one  determine that the information is privileged and then with respect to any unprivileged information if any remains whether the need outweighs the burden whether it's unduly intrusive and burdensome and the other intel factors and the other factors that may come into play but here there is no role for the question about whether the underlying dispute should be allowed to proceed further as was the case by the way insult lien which was a case between the plaintiffs saleman to others against doctors  themselves industry according to the court there actually did have to consider that third step of the reynolds framework but not so here and i think that really is the difference this court in bellevue made the point in the context of  that the underlying proceeding is ongoing in the foreign tribunal not in the u s court and that made a difference for that purpose we think it equally makes a difference for this purpose for understanding the effect of the assertion of the privilege before the district court here if i may i don't want to take any additional time unless the court has specific questions but i do want to just leave the court with the point that poland and the united states have negotiated a treaty the neutral legal assistance treaty that has been employed and that the outcome of that treaty mechanism which the governments of the two countries have negotiated resulted in a decision by the united states that it would not provide evidence that is also covered by the request here that that's part of what's at issue here and and the should not be allowed to circumvent that just as the petitioner in the fourth circuit alveoli ace that supports that motion so there are multiple cases your honor we started them in the briefs zero point two two if i may first the case in the fourth circuit which made clear that the petitioner there could not circumvent the foyer constraint on obtaining classified information right that's a little bit different so i think it's actually quite similar here but but there's also a case where that addresses the role of mutual assistance treaties including the commissioner subpoena case out of i think it was the eleventh circuit and two district court cases one of which from this very district here in western washington that we cited in our brief and so it encouraged the court to look to those which we think emphasized and by the way the intel court also made clear that one of the factors that the district court should consider is whether the discovery request is an attempt to circumvent any of the procedures or policies of either the foreign government or the that we've identified if the court has no further questions i don't have a question for you the same one last year kelly on the other side of the case is there any authority in the supreme circuit or any other federal court that's addressed whether the factors to be balanced should change if the  on the subject good i think the answer to that is yes for some of the reasons that i was addressing in my responses to judge prizes questions and then you see if i can try to put that together so first of all  we think that the belleview case or those addressing just action makes clear that because the proceeding is ongoing in a different in a different form a different tribunal in a foreign country that that makes a difference for purposes of the court's analysis in that case of jurisdiction we think so to hear for the framework about what's the effect of the assertion of the privilege what's the effect on the disposition of the case in u s court we think that's one point that makes a difference  secondly the the factors that the supreme court identified in intel in this court identified in its own cases for interpreting the broad discretion that's afforded to a district court under seven hundred eighty two  emphasize the difference between a seven hundred eighty two discovery application which does afford the project's question and a district court's interpretation and application of the discovery rules under u s law that would govern with the of entry rules that would govern a dispute that's proper before the court in a case that has been brought in u s court and so i think those two sets of cases make clear that the the district court in the saline case would it allow the kind of discovery that we're talking about here noted that the united states had declassified all that information after japanese and so much more discovery was allowed t noted as something that was not a secret because of it since that time of course we've had all kinds of detail about waterboarding and everything else so much of that information has now been declassified and so the question  in the context of a prosecutorial investigation we're not talking about we're not even up to talking about what a foreign court might ultimately do but what a prosecutor does is gather facts and try and determine whether he has a case we get to supply some of them what we're proposing to supply only those facts that are not privileged of a district court made a statement that even the location of the site in poland isn't privileged if nothing else that would require a rematch and in order for the district court to to straighten out what he meant because if that's true then we're entitled to virtually everything we've asked for but if it's not true then we would still be entitled to everything that's declassified so long as we don't insist on making mitchell in just jess and testify that it was in poland would you just respond to the governments are going to few minutes ago  that you shouldn't be allowed to circumvent the government our government declan nation to come to honor the request from the polish government to supply the information that's one of that and that your this is just a proceeding to get around that and that should be allowed well it's not because we have no right under the multilateral treaty right they're trying to vindicate their own rights under polish law and under the law of this country as well but secondly the district court in granting our request for the subpoenas in the first instance instance address that issue and waded in the balance of intel factors and properly ruled that as to the polish government's interests it weighed one way as to the u s government's interest weighed another another way and he found that that was a wash when all the intel factors he ruled in our favor he was specifically addressing that intel factor is this an attempt to get around the u s government's position he said it was not by the way and so there's that hasn't been appealed there's no occasion for this court to disagree unless it seeks to do so as an alternative ground for a firm and spot it's it's not a ground that presents itself with respect to the multilateral treaty therefore that's kind of a side show and in our opinion  court of course the district court has no supervisory authority over what a foreign court or in this case a foreign prosecutor might consider but as a matter of comedy we're talking about a member of the european union acting at the direction of the european court of human rights i think that this court wouldn't ordinarily expect that those courts would properly way  the provenance of evidence what might or might not be included the polish prosecutor won't go forward unless he thinks he has a complete case pro polish prosecutor also has a duty to consider responsibility whether through exclusionary rules or giving appropriate way to the evidence my time is is increasing instead of decreasing as the courts have any further questions very good thank you very much for your time thank you count i want to thank  both counsel who argued they for their learned and spirited advocacy of their clients positions and this is a very interesting case if the if the court after conference has any i d s that it wants supplemental briefing on a particular issue we'll let you know but i've been that the case is unless that happens the case is now submit submitted for decision and as i noted you have of the day in due course after we can for with  and an opinion is worked up we will with the parties know thank you for your efforts on