 Now another Ninth Circuit Court case involving a now defunct Oregon charity, Al-Haramayn Islamic Foundation. Its lawyers claim that the National Security Agency illegally listened to their phone calls. This oral argument is 50 minutes. Now on the second item on the calendar, Al-Haramayn versus Foundation, I'm sorry, Foundation Inc. versus George W. Bush. May it please the court, my name is Thomas Bondi, I represent the Appellants, the President of the United States at Al. Your Honours, this case is different from the Heptink case that you just heard in a couple of respects. That case, as you know, is a class action challenging alleged dragnet surveillance. This is a case by three plaintiffs alleging that they were actually surveilled in March and April of 2004. So Heptink, as you also know, is a case against AT&T, a telecommunications carrier. This is a case directly against the government. Notwithstanding those differences, however, we think the crux of the matter is the same. The state secrets privilege requires dismissal of this case, because litigation of plaintiffs standing or of the merits of their claims would necessarily risk disclosure of sensitive national security information, and indeed the very subject matter of this case, whether plaintiffs were ever surveilled in the first place, is itself a state secret. Now, of course, the district court's decision on plaintiff's claims turn in very large part on this document that was inadvertently disclosed to plaintiffs by the government. So let me jump right into that if I may. In the fall of 2004, the government inadvertently disclosed to the plaintiffs a classified document. Let me make clear what that document is and what it still is today. That document to this day remains totally classified. It's classified at the top secret level at SCI, it's subject to handling constraints that extend beyond those that would normally be applicable even to top secret information. After the disclosure, the government went through the process of determining whether declassification of the document is warranted. The public record shows and explains that declassification is not warranted, not withstanding the inadvertent disclosure. The public record also shows that that document cannot meaningfully be described without revealing classified information. Do I understand correctly that copies of it remain in the hands of some of the plaintiffs? That's a difficult question for me to answer since I don't know the exact answer. If they did, I wouldn't necessarily know about it. I'll tell you what we do know. The district court here as part of its decision ordered plaintiffs to surrender to the court any copies of the document they have. I certainly assume that the plaintiffs have complied with that order. The district court as part of its decision here said that the document remains classified in full and remains fully privileged, subject to the state's secrets privilege, not withstanding the inadvertent disclosure, and ordered the plaintiffs to surrender physical copies of the document to the court. Let me just cut to the chat one minute. When it was floating out here, I thought I remembered reading that one copy was out some place. For all we know, Your Honor, and again, I want to make clear what I do and do not know. For all we know it's possible that there are copies, for example, with foreign located members of Al-Haramain's board of directors. There's some suggestion to that in the case. When the FBI in 2004 conducted an investigation and determined who had received copies of the document, I think that investigation was limited within the United States. So within the U.S., the FBI, I think, actually physically visited, everyone believed to have received a copy of the document, told those people that they had to return the document subject to possible criminal penalties, and the district court, then, in this case, at the government's urging, ordered to surrender their copies. But it is a secret document, but the district court made some determination that the litigation could go forward based on recollections and other extrapolations from the document that the district court would then examine in camera. If we were determined that that is at odds with the state secrets doctrine, wouldn't we have to remand the case because it seemed that that whole premise infused the district court's view of the case, and we don't know what the district court's view would be if that document were basically taken out or sucked out of the litigation? The premise would certainly require, at a minimum, a remand, and that premise, if I can explain it, is erroneous, we submit. But I think the only possible result, after a determination were made that that premise were faulty, would be dismissal of the case. And if I may explain, Your Honor, in this case, in order, everyone agrees that in order to establish their standing in a prima facie case, plaintiffs would have to establish that they were surveilled. They say they can show they were surveilled. And there's one and only one thing they point to for that suggestion, and that is their mental recollection, their memory of what remains in their minds of the document. Now, let's say that we were to determine that that wouldn't be sufficient because it's a derivative of the secret document itself. Because we'll have to ask the plaintiffs. But if they had other independent information, which I don't know if they have or do not have, that did not implicate the secret document, then they could go forward at least to establish that there had been surveillance. Could they not, as long as it didn't tread on a state secret? I don't think so, Your Honor. And let me make clear, as far as I understand the case, plaintiffs are absolutely clear that the only thing they rely on is their recollections of the document. And of course, the district court found, in agreement with the government, the district court found that the document was and remains fully privileged, subject to the state secret's privilege. And therefore, that document has to be out of the case. How did the government find out that the document had been disclosed? I'm not sure I know the answer to that question, Your Honor. But the government, fairly shortly after the... Didn't the attorneys alert you to that? I'm not sure I know the answer to that, Your Honor. You weren't involved in that process? No, absolutely not. I just don't know. I've read the FBI investigation and you don't know the answer to that. I have not read the FBI investigation. I mean, I've read the record of this case. The answer to Your Honor's question is not in the record of this case. Okay. But shortly after the inadvertent disclosure was made, the government learned of it and took efforts very promptly to retrieve all copies of the document. But as I was saying, Your Honors, once the document is out of the case, which it has to be because it's privileged, seems to us quite clear that mental recollections of the document are also out of the case. The only way to test the veracity of those recollections would be to compare them against the document itself. So the proceeding that the district court apparently plans to hold to test or to consider plaintiff's recollections of the document, let's be clear, that's a proceeding about the document. What else could it be? If plaintiffs say we remember that the document says X, Y, Z, the only way to make sense of that assertion and to see whether it's true or false is to compare it to either the document itself and or, I suppose, with what the government comes in and says about the document, the point being then you're talking about the document. But the document is privileged. It's out of this case. Every the, every and, every period, and per stand and comma. Yes. Stop secret. Yes. And there is a public declaration in this case to that effect. It's in the excerpts of record, Your Honor. And it shows that this, it says that this document and explains is totally non-redactable, totally non-segregable, and cannot even be meaningfully described without revealing classified information. Well, how did it get over them the first place? The government inadvertently gave it to the plaintiffs in the process of giving them other materials that it meant to give them. So someone wasn't very careful. Someone was not very careful, Your Honor. It was a mistake. Let me make clear, not a mistake by their side. It was a mistake by us. The government made a mistake. But as the district court quite properly concluded, the government responsibly acted very promptly to rectify the mistake. They haven't challenged that, correct? There are two things. I'm sorry, Your Honor. That the document can be legitimately retrieved, if you will, and returned to its secret status. If I can answer that in two parts. The answer is no, they haven't challenged it. But there are actually two determinations that they haven't challenged. The district court expressly determined in its decision, in this case, number one, that notwithstanding the accidental disclosure of the document, the document itself remains, to this day, fully classified. That's number one. And number two, notwithstanding the accidental disclosure, the document remains fully privileged within the scope of the state secret's privilege. The district court said both of those things very clearly in its decision. And I don't read the other side's brief before, Your Honor, to take issue at all with either of those determinations. Again, Plano's whole point in this case is very simple. They say they, in quotes, know what's in the document. But I mean, that's wrong and irrelevant for a number of reasons. And mostly it's irrelevant because it doesn't matter what they know. Let's say they believe they know that the document says X, Y, Z. They claim they know, that's what it says. As I was saying before, the only way to pursue that point in litigation is to test the veracity of those memories, those recollections, by comparing them against the document. But you can't do that because the document, under the terms of the district court's own decision, is privileged. And if I can step back one level, Your Honor, it's not just the document. The district court has a copy of that document. Does it not? In the sealed submissions, the classified submissions. Yes, but that's a, again, that's not just a classified document. It's not even just a top secret document. It is subject to SCI restrictions so that handling and storage restrictions of that document are so stringent that they extend beyond those normally applicable even to top secret information. Is there an English translation of SCI that's not a state secret? I'm sorry, Your Honor, that's my fault. Sensitive, compartmented information. Thank you. I'm sorry, I should not have used that acronym. If I can step back to one higher level of generality, even beyond the document, Your Honor, the state secret's privilege assertion here covers just the basic question, putting aside the document, covers the basic question of who is or is not subject to foreign intelligence surveillance by the NSA. So just forgetting about the document for a second, although obviously it plays a central role in this case. You know, what plaintiffs are trying to seek here is confirmation or denial of whether or not they were surveilled by the NSA. And the declarations plainly show and explain when the NSA is faced with an allegation by someone seeking confirmation or denial of whether they were surveilled, the only plausible response is to neither confirm nor deny. We don't confirm or deny that you're subject to foreign intelligence surveillance. That wouldn't make any sense. Of course, that wouldn't make any sense. The whole point is that no one knows or at least one way or the other. That's absolutely critical. And Your Honor, I'd also like to add that although the district court here, I think agreed with much of our position, namely that the document is classified and remains subject to the state secret's privilege, the district court, I think fundamentally erred in believing that it could in a sense work around the privilege by holding what it called an in-camera proceeding. That's what the district court, I think, contemplates will happen next. An in-camera proceeding that in some sense will test plaintiff's allegations or assertions about their recollections of the document. And that is wrong in a number of respects. First of all, just as a purely legal matter, that's not how the state secret's privilege works. If the state secret's privilege covers the central issues in the case, covers what the case is all about, which is what is the case here, if once that determination is made, and we think that determination is compelled here, the case law unanimously points to the conclusion that therefore at the end of that is therefore the claim must be dismissed. It's not therefore we'll hold a secret trial. And that's what the district court contemplates doing here, holding some kind of secret proceeding. But that is wrong as a matter of law. That's not how the state secret privilege works. Also, it doesn't protect national security. The Supreme Court has been quite clear about that, perhaps most clearly in the Reynolds case, that where state secret privileged material is at stake, even an in-camera proceeding where the judge looks at the material in chambers, that's not good enough to protect the security risk at stake in the state secret's context. So the district court here, to the extent the court thought it was properly protecting the national security interests at stake by holding an in-camera proceeding, I think that's fundamentally wrong. And again, the proceeding, I know I've said this more than once, would be about the recollections of the document, but that's just the proceeding about the document. And you can't do that if the document is privileged. Another, I'm sorry, Ronnie, go ahead. What if they'd sent a copy of it to a newspaper, like the Pentagon papers? Well, I'm not sure at this point any of that makes a difference. If to answer your honor's hypothetical, let's say that a newspaper tomorrow published what it represented was a copy of the document given to them by someone, maybe by the plaintiffs in this case. The government would not necessarily confirm or deny that that was the document. Maybe what's published in the newspaper is totally inaccurate. The fact is absent, a government confirmation or denial, no one looking at that thing in the newspaper including a hostile intelligence services, knows what it is, knows whether to believe that it's true, maybe it's true, maybe it's false, maybe it's true in part, maybe it's false in part. Just like you're on another way of answering the same question, if right after this courtroom proceeding, someone on the plaintiff's side were to go across the street and start saying things about the document, whatever other implications that might have criminal or otherwise, that wouldn't undo the state secrets privilege. And it also would not let people know with any degree of certainty what the document actually was or said. And there's a huge difference. But what you're saying, I guess fundamentally is it doesn't change the classified status of it. Or the privilege status. Or the privilege status. Exactly. But if the government were not careful in maintaining the classified nature, not necessarily an accidental disclosure, but if the government were not careful, could that not vitiate the classified status of something? There are steps the government could take that would vitiate the state secrets privilege, I'm sure. But the accidental disclosure that happened in this case and the immediate prompt steps by the government to rectify that accidental disclosure, that doesn't come anywhere near close whatever it would be to waive the privilege or to undo the privilege. I mean, that's not even close. And that's not argued in this case. Just to point a procedure, this case has been MDL'd to Judge Walker. So any remand would not be to Judge King. Correct. There are a number of these cases now part of the larger, and I won't say MDL here on it, I'll say multi-district litigation. But I knew that one, let's see. I make no assumptions here on it. A number of cases are now part of that MDL proceeding, and this case is one of them. So pretrial proceedings in any of those cases, at least for the moment, would be before Judge Walker. There are 50 of those cases. I think that's right. There's several dozen of them. So we're back to where we were in the earlier argument that once officials of the administrative branch of the government declare an item to be a safe secret that ends it. No, Your Honor. And if I could answer that in two different ways. First of all, to give you the same answer that my colleague, Mr. Gar, gave, we're not saying that the courts have no role. The courts have a role. It is the court's authority and responsibility to pass upon the validity of the assertion of the state secret's privilege by the executive branch. So there's a document, the state says, it's subject to state secret, the government does. Yes. And a judge looks at it in camera and says, I can see where some of this is subject to state secret as defined by Reynolds and its progeny, but there's some stuff in here that clearly is not. Why can't I produce a redacted copy for use in the litigation? At least in theory, that would be within the court's purview. But here, part of the showing, that the government has made an extensive showing that is in the record before, Your Honors, both public and non-public. Part of that showing, as I've said, is that the document is totally and completely non-segregable and non-redactable. And Your Honors are free to pass upon the validity of that assertion as well. But this is a document that's totally and completely classified and remains so. And again, Judge Prager, so if I can also just put your question in context, please keep in mind what this case is about and what the plaintiffs are asking for. This is a case by individual plaintiffs asking the government to confirm or to deny that they were subject to foreign intelligence surveillance by the NSA. We can't confirm or deny that. And the record explains that. We don't confirm or deny that. We say we can't say yes, we can't say no. And that's- Well, I guess what the government has said is that it does have a program in which one in foreign communications, whether it's an OK to affiliate, that those are subject to government monitoring, correct? Those are subject to government monitoring. But whether you in particular- But whether they get everybody- Subject to the possibility of monitoring. But whether you in particular were or were not subject to surveillance, it's not just under that program, under that program or any other program. That's a state secret, for example. And so here you have that program, which is its contours have been made public. At the most general level, Your Honor. And then you have the organization here, which has been deemed through various earlier and separate proceedings to be, as I understand it, a foreign terrorist organization. But you're saying that they lack the third step, which is that that organization or its officers or members were actually subject to any surveillance? Yes, I'd go- That's what's missing. More than that is missing. Everything, Your Honor, just said is correct. But plaintiffs believe they were surveilled. One of the many things they don't know and can't establish is even assuming they were surveilled. Let's assume that, which they could never show and never establish absent privileged information. For all they know, if there was such a surveillance, and I'm saying if, for all they know, it was fully and lawfully authorized by a FISA court order. That's another thing they don't know. And they could never show that. The important thing in this business is to keep them guessing, huh? It is. Absolutely is. To maximize the level of uncertainty. In this case, if it's successful, we'll make certain things certain that now are not certain. And that harms national security. Your Honors, unless the court has any further questions, we would ask that this case be dismissed grounds of the state secrets privilege and the district court decision reversed. Thank you. May it please the court, John Eisenberg, for the plaintiffs. Mr. Bondi says the government made a mistake. And indeed it is true. The government made a very big mistake. They disclosed evidence of surveillance to the victims of the surveillance. Judge King, the district court judge, saw the document and in his opinion, he said, it is not a secret to plaintiffs whether the communications have been intercepted. And I believe that is the key to resolving this case. In the declarations filed publicly, Mr. Alexander and Mr. Negropati have given us the reasons for the state secret privilege. Two reasons. First of all, we don't want to know the targets of surveillance to know that they are being surveilled because they will change their behavior accordingly. Well, that reason doesn't exist here anymore because the victims of this surveillance know they were surveilled because of the government's mistake. Second reason for the privilege, we need to protect the secret operational details, means and methods by which our nation's intelligence community conducts surveillance. I agree. That should be kept secret. There's no need for the public to know. There's no need for my clients to know in order to demonstrate their standing. It does not matter how they were surveilled. What matters is that they were surveilled. Is it true as the government represented that other than the document itself and your clients recollection that they have no other information that would establish standing that they were in fact surveilled? No, that is not true. The document is the central feature of the evidentiary showing of standing that will be made below in this case if we are given the opportunity. So assume you don't have the document. Tell us what the proof is. Okay, what we have here is a number of government admissions about the document. They have said in their declarations that it is a government report. It relates to all hermene Islamic Foundation. It contains information about national security administration activities. Those activities of this agency include signals intelligence. Signals intelligence is derived from electronic surveillance. Now let's look at what the government has told us in public statements and in the pleadings in this case about the warrantless surveillance program. It is a program of warrantless surveillance which targets persons whom the government believes have links to al-Qaeda. How does the government describe all hermene in this case? The government says they have links to al-Qaeda, an assertion which by the way, the plaintiffs very passionately deny. All of this is in the public domain. We have an allegation of surveillance in March and April 2004. The government has conceded that they were conducting a program of warrantless surveillance of people believed to be linked to al-Qaeda during that time period. What's your evidence of the timeframe being marched to April 2004? That evidence is... Does it derive potentially from the document or does it have an independent basis? It derives from the document. And that's why I say the document is a central feature. I thought you were gonna give us a list of things for the time. Yeah, I thought you were telling us it isn't a... I mean, so we were kind of mixing and matching. No, no, what I've given you is everything that's public. The last link in all of that is the document itself which Judge King saw and read. And he thereby concluded, I am going to give the plaintiffs just what they need to make this showing of standing, not access to the document which we had asked for, but the ability to tell the court in sealed filings what we have seen, what we know. Doesn't, my concern about that is it seems to me that that really flies in the face of Reynolds which basically says that you shouldn't jeopardize security which the privilege is meant to protect. So if you have a document which is a national security top secret document, and it's been retrieved, if you will, but your clients are permitted to establish constitutional standing under the document, then what's the difference of just having saying, well, the document's not really top secret. They get to retell, they can get to tell you what they remember because they saw the document. It seems to me that's no different than having the document. The crucial difference between our case and Reynolds is in the need for the document, the need for the evidence and the availability or not of alternatives. What happened in Reynolds is the government said we do not want to produce these investigatory reports on this plane crash over which the plaintiffs were suing but we will make available for you to interview people involved in the crash. There was an alternative. The court said, this is a quote, here necessity was greatly minimized by an available alternative. The court was saying there is no need for this evidence here when the government has offered an alternative. But what is the status of the document? If something is a top secret document which the government says is SCI, I like that, I'm gonna use that now. It's an SCI document. So no one is entitled access to that without the appropriate clearances. But your clients basically piggyback on that. Doesn't that basically pull the rug out from under any kind of classified nature of the document if you can use it? So what we did is we proposed alternatives as was done in Reynolds. We proposed several as did Judge King. We suggested, for example, redaction. I do not believe that every single syllable, a letter in this document puts the nation security at risk. Your Honor's- Well why don't you back up a document that said the and or dot dot or and the but. All we need is a- That wouldn't help you would it? No, all we need is a document that shows- Your client's name? There was surveillance. But that means that you need a document with your client's name? No, actually not. Organization or something? Actually not. What do you think? There are certain links that are completed by the sealed declarations of the plaintiffs themselves in this case, Gafford and Belew. So now actually very little in the document needs to be reviewed by the court. All that is necessary to know from the document is that there was surveillance. Sealed affidavits by the parties can supply the links. But the sealed affidavits are derived from the document? Yes, but this is- No, no, no. Actually- I feel like I'm Alice in Wonderland because what you're saying is the document is essential but it really isn't because my client can really just talk about the document. Well, he just pulled Alice back into the- I feel like I'm in this Alice in Wonderland too because I cannot tell you. I have filed a sealed filing in the case. Arguing what's in the document. I cannot mention it today. I understand that. Okay, so there's certain- And we've read the sealed filing. So what's in there is kind of not central to my question. It's the fact that whether the sealed documents that you reference as the foundation are derived from the classified document. And I guess the answer is yes. The sealed document, yes. The answer is yes. The sealed document is classified. That is not determinative of the state secrets issue. The issue is not whether or not the document is classified. The issue is whether this litigation puts national security at risk. Is it essential to your claim that there was no warrant or other court certification? The document itself, I do not believe, is essential to the element of it being warrantless. I'm not talking about the document at all. Is it essential? I'm gonna ask you, ask you essentially the same claim, same question we asked the hepting parties in the prior case. Is it essential to your claim that any surveillance of your clients was done without warrant or court authority? Yes. We have to show there was no warrant in order to show a FISA violation. The government has taken the position that it is a state secret, even whether or not there was a FISA warrant. Let me direct your attention to FISA section 1809, which provides for a defense as follows. It is a defense, it's 1809B. It is a defense that surveillance was authorized by and conducted pursuant to a court order. So Congress has provided a defense for the government to our action. Their defense is we had a FISA warrant. If Congress has provided for that defense, how can it possibly be a state secret? It cannot. Will our proceedings before the FISA court public? No. No, they are not. Including whether they've authorized a warrant or not? No, they are not. They are secret. However, in FISA, Congress has prescribed as being a defense. If the government is accused of surveillance without a warrant, they may present evidence that they did have a warrant and that will be the end of the FISA action. That has not happened in this case. And I might add that while the government was not required to make any sealed filings below or on appeal in order to defend its position, they did choose to make those filings below and on appeal. I must assume they have not told the district court or this court that they had a warrant in those sealed filings or we would not be here today, Judge King, what have dismissed the action? That tells me a lot about on the ground common sense reality in this case. They availed themselves of a secret means of communicating with the trial court judge. They could have put a quick end to litigation if indeed there had been a warrant. They evidently did not. If the government had not made its acknowledged mistake of revealing the document, would you have a basis to bring this lawsuit? No, we wouldn't know we were surveilled. That's, that was why this was such a big mistake. The government was conducting a program of wireless surveillance in secret that we believe was unlawful. Had they not made a mistake and revealed it to the victims of one particular surveillance, who would be out there to sue? It's the very nature of the secrecy. The government has taken the position that because this must be secret, it can never be litigated. And Judge Pegerson asked the question earlier during the EFF argument, the hepting argument. He said, if we are at war, does that mean that executive power is unchecked? And Mr. Gar said no, it doesn't. But really he's arguing that it does because the government's argument in hepting and here is that the very subject matter of these actions, the warrantless surveillance program, what the government now calls the TSP, the very subject matter is a state secret. You, the courts may not litigate this case under any circumstances and it doesn't matter what the plaintiffs know. What they know, you may not litigate this. Now, in my view. That means though, we would have to accept his view that the very essence of the case, the topic is a state secret. And here as we've talked about, although in broad contours and not details, we know quite a lot about the TSP, correct? Okay. So that can't be a state secret, right? All right, so let's dispose of their first argument. They have made two. So that seems like not a very good argument if they're making it. I couldn't agree with you more. They've got two arguments. One is a very subject matter is a state secret. That doesn't wash, I don't think. All right, let's go to the other argument. The plaintiffs surveillance themselves and in this particular case is a state secret. Now, the answer to that question lies in the declarations of Mr. Negroponte and Mr. Alexander, again, twofold. The danger is they'll learn of their surveillance and change their activity. That's not an issue here because they already know and if they've had any opportunity to change their behavior, it's been indulged. The second danger is we cannot reveal the operational details of the program without endangering national security. My answer is I agree. You don't have to. We don't need to know. We don't want to know. We just want to make the one showing that we need to make to get to a decision on the merits. The merits issue is does the president have inherent authority to disregard an act of Congress in the name of national security? That is the issue that will become law by default if there's a state secrets dismissal in this case. Because what it means is that the government need only invoke the state secrets privilege and say this is something where the very subject matter is secret and you the courts can't deal with it. You're not competent to deal with it. Well, if that's the case, then as a practical reality, they're right. The president does have inherent authority to do whatever he wishes in the name of national security during a time of war. That can't be right. It just can't. There is, of course, some check on that. If that's the proposition, there is some check with respect to determining what is or is not a state secret because the federal courts have some authority in that regard, do they not? Yes, another question from the bench was, what is our job here? I think the answer to that question is in the case of Ellsberg versus Mitchell. Way back when. The more compelling a litigant showing of need for the information in question, the deeper the court should probe and satisfying itself that the occasion for invoking the privilege is appropriate. There is a big need here creating a need for this court to probe deeply. What's the big need? The big need is that we need to be able to refer this document in order to show our standing to challenge the legality of the program. We need this evidence. I have conceded to you today that without this evidence- Well, it's sort of like whether we got a warrant or we didn't get a warrant. Mm-hmm. Yeah, but we need to show surveillance. That's the secret. Yes, right. Because part of it being a secret is for other folks not to know one way or another. Yes. Because sometimes it's as important to know what the other side thinks it knows. Right. That may not be true. So, you know, the whole thing too could have been a charade by giving you a document. See what I mean? I see what you mean, yes. So I guess the question and perhaps what we're getting at is do we really know we were surveilled? Maybe it was a fake. Maybe there was no surveillance after all because as I say, we need to show we were surveilled. That is certainly a central element on our fries the cause of action. Surveillance, electronic, without a warrant. Were we really surveilled? The government has proposed a number of scenarios, some conjecture I would call it. Well, maybe this, maybe that, maybe the other. Maybe the government found this out through word of mouth, for example. What I would refer you to would be the standard of proof for showing standing. We are attempting to show standing here. That's what we want to do if we are allowed the opportunity to go back to Judge King, Judge Walker now and make our case for standing. The standard of proof for showing standing is simply preponderance of the evidence, more likely than not. Do we have enough evidence here combining the document and everything else I've mentioned as public knowledge today to constitute direct and circumstantial evidence from which a reasonable inference could be drawn that our clients were surveilled electronically without a warrant? I believe the answer to that question has to be yes. And let's look at it from- Let's just take a privilege that's not nearly as kind of high flying as the state secrets privilege, the attorney-client privilege. If you had a document that had been inadvertently disclosed but your clients got to read it, but then is excluded from the litigation as an attorney-client document, you couldn't use your recollection from that document to establish something in the litigation, could you? I suppose you couldn't. So why would this be any different? It was the most conservative resolution to the issue. I believe we argued that we should have access to the document. That was the issue that was before the court below. The judge said, I don't need to go that far. How about if I just let you file an affidavit describing the document from memory? I didn't hear an answer to Judge McKeon's question. I thought you said you suppose you couldn't use the document and you could not use your recollection to establish something. That was my answer. Yes, my answer was, I believe it would have been yes. The question I thought I heard her ask was, how's this different? How is this different? Okay. How was an attorney-client privilege document inadvertently disclosed, stricken from the record, returned, blah, blah, blah, different from what happened here in terms of its use in a court procedure? Okay, thank you. That's helpful. Thank you for clarifying. It is different because there are no state and with the attorney-client privilege, hypothetically you have given, attorney-client privilege information is at risk. In our case, there is no state secret at risk because the bell has been rung. Well, but you see, that's a judgment that the court has to make by looking at the sealed document. Absolutely. The bell was rung in the attorney-client as well because it's the communication between A and B that is the privilege in the attorney-client privilege. And of course, when you tell somebody, a third party, if you tell them affirmatively, of course you ruin the privilege, if it's accidental, like here the disclosure was, well, the privilege doesn't go away and the reason for the privilege doesn't go away, even so somebody else gets to know. And in a way, you have to kind of wipe that out. It's sort of, I realize it's a bit of a ruse in the attorney-client privilege because what they say to the attorneys and the other people is, well, you saw this thing, but you can't use it. Right, you can't use it, that's the key. And you can't use information derived from it. With the attorney-client privilege, there is a remedy. You cannot use it. And therefore, the preclusion from use remediates the damage done from the disclosure. The damage from the disclosure of this document has been done and cannot be remediated. These client, these people- I don't see how it's any different in attorney- If you have some very highly confidential settlement negotiations, you're laying out your theory of the case and the other side, it gets over there by fax, by accident, which has happened a number of times and we're all from sending accidental faxes. The other side now knows your strategy. You can't say, well, it's remediated because they quote, can't use it. Well, they can use it. There's no remedy for that. Can they use it in court? That's the question, can they use it in court? Can they use it in court? And there's a reason to keep them from doing it. But there's no reason to keep our clients from using it here because the government has told us the reason to keep them from using it is to prevent them from altering their conduct. And that cannot be undone. OK. Thank you. Thank you very much. All right. You got any rebuttal? Would you start where he left off? Because he says, if the reason for the classification and the secret is so that the targets don't know and so you have operational details, he says, those are kind of out the window at this point. So there goes the secret. There are two problems with that. First of all, starting with them, they don't know. And let me make clear what I mean by that. I'm not talking about the document because the document is secret. What I am talking about is their statements to you in their brief. And I would point to page 24 of the red brief in particular. When plaintiffs explain what they mean, when they say they, in quotes, no, they don't know. What they mean when they say that is that they, although they think or believe or claim they were surveilled, it's possible that they weren't surveilled or it's possible that any surveillance was supported fully lawfully in their view by a FISA court order. But that information in plaintiff's words on page 24 of their brief would be peculiarly within the knowledge of the government. Exactly, indeed, it would be. They just can't get access to that. And they admit it on page 24 of the brief. So that's the first point. When they say they know what they mean by that on their own terms, they don't know. That's number one. Number two, it does not matter what they know. The Harm to National Security here on a broader level is to protect public disclosure of this information, to protect the world from knowing. And whatever they know or believe they know or claim to know, it is absolutely clear and undisputed that the world at large, the whole world, does not know whether or not any of the plaintiffs were surveilled. The world doesn't know that. The world knows what they think they know, whatever that is that they know. Exactly, and that's less than actually knowing whether it's true. Boy, we are really splitting the nose. No, but that's a huge difference. So that's for me. That government hasn't confirmed overnight. It reminds me of something. Don Rumsfeld, yeah. But Your Honor, I mean, let me be plain. It's entirely possible, and I'm not saying one way or the other, obviously. Right, because you don't, you can't know and we can't know. It's entirely possible that everything they think they know, just to give one example is completely false. It's possible? Or maybe it's partly true. We know that we know and there are things we don't know that we don't know. Right. You know, one time I had a criminal case in my better life when I was a district judge and someone from a local police department brought me some file to look at in camera, see. I looked at it. I said, I don't see anything here. What's this all about? He says, well, judge, what's important is not what we know, but what they think we know. That's what you're saying. What I'm saying here is that. What I'm saying here is that on the broadest level, the national security interest in this case isn't in any way limited to what the plaintiffs know or think they know. The world at large doesn't know it. You're saying that whatever they divine from the document may or may not be. Right, and the rest of the world has no way to know. What plaintiffs are trying to get in this case is to get it officially confirmed one way or the other, whether they were surveilled. If that were officially confirmed or denied one way or the other, that would be something of interest to people who are hostile intelligence entities who watch this stuff. That would be a disclosure that matters and that's the disclosure. Do you think they're watching this argument just to see if anybody knows? I go back to my basic point. We just can't confirm or deny. And this is explained in detail in the record. We just can't confirm or deny who is or is not subject to foreign intelligence surveillance. And respectfully, your honors, I think that's just the basic point and it's explained in detail. Let me ask one last question. Is that, do you know of any other case where a document has been deemed to be a national security document and yet someone was allowed to proceed forward, not with the document, but with either some recollection or notion? No, no, I mean, we think that I'm not aware of any. We think that theory is quite evidently wrong, respectfully, your honors, and we're not aware of any precedent for it. Unless the court has any further questions, the government has nothing more. All right, everybody go in peace and this court will adjourn.