[00:00:43] Speaker 00:
military component responsible for the unit involved, the operation in 2004 in Iraq, the subsequent investigation, and the follow-up mandate by Congress in 2007 has steadfastly refused its obligations under FOIA to conduct an adequate search for relevant records.

[00:01:00] Speaker 00:
So are there actually any disputed facts in this case?

[00:01:05] Speaker 00:
I would say that there

[00:01:13] Speaker 03:
If there aren't really disputed facts, it's either was the search adequate or not.

[00:01:19] Speaker 03:
And so if the court were to find that the search wasn't adequate, then do you just win?

[00:01:24] Speaker 03:
Or if we find that the search was adequate, then they continue to win.

[00:01:31] Speaker 03:
Well, this is a unique case, Your Honor.

[00:01:32] Speaker 03:
Because it's summary judgment, right?

[00:01:34] Speaker 03:
But the adequacy of the search is sort of at the heart of it.

[00:01:38] Speaker 00:
It is, Your Honor.

[00:01:38] Speaker 00:
It's a unique case for that reason.

[00:01:46] Speaker 00:
issue that goes over, but this case is all about the adequacy of the search.

[00:01:49] Speaker 00:
And so if this court finds, as we argued it should, that there was an inadequate search here, that it would need to be remanded for a more fulsome search.

[00:01:58] Speaker 02:
And what would that search entail that you had mentioned?

[00:02:01] Speaker 02:
They should have searched physical locations, and they should have searched Marsent.

[00:02:07] Speaker 02:
Now, they say Marsent is not in our possession or control.

[00:02:11] Speaker 02:
I mean, the documents that Marsent has are a separate agency, so they can't search Marsent.

[00:02:45] Speaker 02:
happens regularly and that's

[00:03:04] Speaker 02:
and the low-level emails are destroyed right away.

[00:03:10] Speaker 02:
So we normally presume that good faith reliance on an affidavit.

[00:03:18] Speaker 00:
There's a few issues that are problematic through your honor.

[00:03:20] Speaker 00:
First of all, Mr. Guzman's declaration has never mentioned NIPR.

[00:03:23] Speaker 00:
And so while it may talk about email writ large, it doesn't actually

[00:03:54] Speaker 00:
allow agencies to avoid all obligations by simply saying, this is the only place we think, regardless of the other context.

[00:04:01] Speaker 00:
And if we look at a number of locations, well, first of all, we don't have to credit that declarations when they're conclusory.

[00:04:08] Speaker 00:
And I would say these declarations, these declarations are, in fact, conclusory, and they encompass enormous holes.

[00:04:14] Speaker 00:
One of the ones that Judge Akuta pointed out, which is, well, some of the emails may have been preserved at certain

[00:04:25] Speaker 02:
He does go on to say in his second declaration, we didn't start preserving high-ranking personnel's email until 2011, 2012.

[00:04:34] Speaker 02:
So he clearly does say that they're not going to have any high-ranking emails from the 2004 period.

[00:05:01] Speaker 00:
was still active duty in 2011, 2012.

[00:05:04] Speaker 00:
There's no indication – they've never said that those types of individuals – General Gregg's – or let's say Colonel Gregg's – and General Mattis, those individuals didn't have their active email that was still going, and that wasn't preserved as part of it.

[00:05:17] Speaker 00:
But I think there's a fundamental issue that this ignores, which is they like to focus – and CENTCOM would prefer to focus on emails that came up from low-level individuals or from Iraq.

[00:05:39] Speaker 00:
evidence and in fact later because the request actually sought lessons learned that CENTCOM would have done potentially even recently regarding these types of incidents.

[00:05:50] Speaker 02:
So there isn't, in the other cases, there's usually some sort of smoking gun that says this should have been there and it wasn't and so your search wasn't adequate.

[00:06:00] Speaker 02:
Whereas the district court found and what you're saying is similar

[00:06:10] Speaker 02:
And that was what the Wagner Declaration essentially said.

[00:06:13] Speaker 02:
So I didn't see anything specific saying these documents are missing other than the Wagner Declaration.

[00:07:01] Speaker 00:
whether or not it ever existed.

[00:07:02] Speaker 00:
Now they claim it's the same.

[00:07:33] Speaker 03:
does seem incredible to me that there wouldn't have been some emails at the time that it happened, especially when there's some really kind of suspicious, there's relationships of people and who could have caused this and all of that.

[00:07:48] Speaker 03:
And when you got an 85-page report or something like that, that kind of seems incredible.

[00:07:53] Speaker 03:
I'm not gonna disagree with you on that.

[00:07:56] Speaker 03:
But then when you put it in the context of

[00:07:59] Speaker 03:
I have no doubt that discussions were flying after it happened, but now we're what was in 2004.

[00:08:08] Speaker 03:
And if, you know, if this inquiry had been earlier, there might've been a better argument that they buried things or they hid things or whatever.

[00:08:19] Speaker 03:
But it's, you know, I'm seeing a lot of smoke, but I'm not tethering it to any.

[00:08:26] Speaker 03:
I mean, it kind of smells.

[00:08:28] Speaker 00:
There's a number of things that are beyond that, just the 2004 United CENTCOM elective follow-up, but Congress actually ordered an investigation in 2007 that was much more wide-ranging, and in the testimony we see the CENTCOM commander, then General Mattis, was actually involved in this investigation at a low level.

[00:09:04] Speaker 00:
Florida.

[00:09:05] Speaker 00:
We see within these

[00:10:36] Speaker 00:
to the Marine Corps for separate, related documents when we received other documents.

[00:10:43] Speaker 00:
But here with regard to CENTCOM, who, again, is in charge of this report, dictates things to CENTCOM, to Marsent, we see it, was in control of it, sent things down.

[00:10:52] Speaker 00:
The fact that they refused

[00:11:14] Speaker 00:
that they do, regardless of the service component, retain friendly fire incidents and related records, which is exactly why they had the Jagman.

[00:11:23] Speaker 00:
So while they claim that, well, maybe we wouldn't keep some certain joint records, it's really immaterial given the fact that they control it, which is the test under tax analyst.

[00:11:32] Speaker 00:
And the fact that they've already confirmed they retain friendly fire documents, they retain casualty documents, and those are the types that they should be

[00:11:44] Speaker 00:
whatever purpose, but at all of the locations.

[00:12:43] Speaker 00:
report Mr. Wagner and his declaration talks about a number of other types of reports that absolutely would have been generated by this type of investigation and the fact that there's not a single piece of email traffic not from 2004 not from 2007 not from 2011 when these individuals were still in their command

[00:13:24] Speaker 03:
minutes for rebuttal.

[00:13:28] Speaker ?:
Good morning.

[00:13:29] Speaker 03:
Good morning.

[00:13:29] Speaker 03:
May it please the court.

[00:13:31] Speaker 03:
Colin McDonald on behalf of the United States Central Command.

[00:13:34] Speaker 03:
The district court's order in this case should be affirmed, and that's because CENTCOM here conducted a diligent search in the place, the place where responsive records would be likely to be found.

[00:13:48] Speaker 03:
In this case, Mr. Guzman

[00:14:33] Speaker 03:
taken.

[00:14:35] Speaker 03:
I can't give additional details as to those additional steps.

[00:14:39] Speaker 03:
The declaration itself is what was provided to the district court for its analysis, but with... Okay, so we say there was additional steps.

[00:14:49] Speaker 03:
Trust me, I'm the government.

[00:14:50] Speaker 03:
I'm here to help or what?

[00:14:52] Speaker 03:
No, I... And don't you have to be a little more specific on that?

[00:14:56] Speaker 03:
Yeah, it's not we're the government.

[00:14:57] Speaker 03:
We're here to help.

[00:15:22] Speaker 03:
maybe would go back far enough was for the high ranking individuals because those were at that time those were kept for 25 years so he went back to determine would there be any of those high ranking emails and he determined that no CENTCOM only started pursuing

[00:16:03] Speaker 03:
on Nipper would have been moved to Sipper, or what in the records supports that position.

[00:16:09] Speaker 03:
The Guzman declarations do not mention Nipper at all.

[00:16:13] Speaker 03:
They don't, and that's correct.

[00:16:15] Speaker 03:
But that's because Mr. Guzman, he was taking account of all of the records that CENTCOM maintains, and he was focused on where are the records for CENTCOM kept.

[00:16:33] Speaker 03:
including nipper because he knows that that sent com keeps its records in its secure database and he explained why he said i know why we need to search this location

[00:16:59] Speaker 03:
to ensure that they are properly maintaining their records in a safe manner.

[00:17:05] Speaker 03:
And so, no, he didn't specifically refer to Nipper, because Nipper only came up when the plaintiff said, well, we want you to search Nipper, we want you to search J1, J3, J5, J7, just a whole list of places that they said, we want you to search these places.

[00:17:19] Speaker 03:
But CENTCOM knows where its records are, and a plaintiff directing, we want you to search these places, is not a lead that

[00:17:35] Speaker 01:
on this incident for his own purposes.

[00:17:59] Speaker 01:
anything physical that was kept by the people involved.

[00:18:05] Speaker 01:
I mean, there was a cover-up here.

[00:18:36] Speaker 03:
to suggest that that wasn't the place they wanted them to look.

[00:18:40] Speaker 03:
But the third search returned 28 gigabytes of data that they hand-reviewed for months.

[00:18:46] Speaker 03:
So it's not like they just sort of brushed this over and didn't look.

[00:18:49] Speaker 03:
They knew, we know where our records are, we need to search that, and let's do it right.

[00:18:53] Speaker 03:
And there's no question that the search terms that they used, there's no qualms about the redactions that they applied, there's none of that.

[00:18:59] Speaker 03:
There's only a request that they go on speculative grounds and look

[00:19:13] Speaker 03:
someone kept records of it somewhere, that's not what FOIA requires.

[00:19:18] Speaker 03:
FOIA does not require an agency to run down those speculative slopes with the possibility that they might turn up records.

[00:19:26] Speaker 03:
And this court's precedent makes that clear, that what's required under FOIA is a reasonable search, not a perfect search.

[00:19:33] Speaker 02:
What about the missing CJATF central, the other report that's referenced?

[00:19:40] Speaker 03:
Right.

[00:19:46] Speaker 03:
this report was ever created or whether this investigation actually took place.

[00:19:51] Speaker 03:
The answer is it's not clear whether some other additional report in addition to the one that was produced ever existed or was ever made and it's interesting

[00:20:12] Speaker 03:
in so that the possibility that there's some extra report no one has told

[00:20:32] Speaker 03:
the report that was turned over probably is the report that was ordered in April of

[00:21:20] Speaker 03:
to find emails, how do you explain possible inconsistencies in those statements?

[00:21:28] Speaker 03:
Well, I don't see them as inconsistent.

[00:21:29] Speaker 03:
I see them as where emails became closer in view.

[00:21:35] Speaker 03:
I see that this is an issue that then Mr. Guzman went back and took a deeper dive into.

[00:21:41] Speaker ?:
I think his first declaration is broader.

[00:21:43] Speaker ?:
It's broader.

[00:21:44] Speaker ?:
It's kind of the big picture.

[00:21:45] Speaker ?:
You know, we have a lot of different emails

[00:21:53] Speaker 03:
little bit more, he drills down on the category of email

[00:22:37] Speaker 03:
policies.

[00:22:38] Speaker 03:
Um, I think that that does meet the requirement that, uh, that, uh, Sancom provide a nonconclusory good faith declaration, particularly in light of the other details provided by Mr Guzman, uh, with respect to why they searched where they searched, which was in zipper and with respect to physical locations.

[00:22:59] Speaker 03:
The request to search physical locations came from one paragraph in Mr Wagner, Lieutenant Colonel Wagner's report, where he says

[00:23:16] Speaker 03:
In theater, records and reports can be submitted in hard copy rather than electronic form.

[00:23:21] Speaker 03:
That was basically just giving a site map of the CENTCOM space to say, you know, search in all these different places.

[00:23:27] Speaker 03:
But Mr. Guzman, with 11 years of experience with CENTCOM records, conducted over 1,000 searches.

[00:23:33] Speaker 03:
He knows where the records are kept.

[00:23:35] Speaker 03:
And so they knew, based on this FOIA request, where they needed to search.

[00:23:40] Speaker 03:
And there were no additional leads that they needed

[00:23:53] Speaker 03:
Yes, so Marsent is governed, is within the Department of the Navy and their FOIA program and their record-keeping system is distinct and it's separate from CENTCOM, which is the combatant command which receives personnel from the Marine Corps, from the Army, from the Navy.

[00:24:14] Speaker 03:
But there's the suggestion that CENTCOM could just order because they control

[00:24:26] Speaker 03:
control just because they control troops in the Middle East is not one in the same with the requirement of possession and control with respect to FOIA.

[00:24:36] Speaker 03:
There's a lot of transferring here.

[00:24:37] Speaker 03:
So the FOIA request was transferred to CENTCOM from IMF.

[00:24:43] Speaker 03:
So I don't know if there's anything left going on.

[00:24:45] Speaker 03:
Does that mean the Marines still have to respond and then you argue that NIPR should send the FOIA

[00:24:52] Speaker 03:
But would all of those FOIA requests just be transferred back to SEPCOM?

[00:24:58] Speaker 03:
So I'm saying that, okay, everyone will go here, go there, but then it all comes back here, and then we're in the same spot.

[00:25:05] Speaker 03:
Well, your question, Judge Callahan, with respect to whether they expect records from the Marines actually hits the nail on the head, which is... Thank you for not saying it's a good question.

[00:25:14] Speaker 03:
Yes, it hits the nail on the head.

[00:25:16] Speaker 03:
The reason is...

[00:25:23] Speaker 03:
already got 133 pages, more than the 85 that sent come found from the Marine Corps in the related Northern District case of Westerville.

[00:25:32] Speaker 03:
They got 133 pages in that case from the Marine Corps, and that's consistent with sent comes positioned throughout, which is that we can only search what is ours and what we have.

[00:26:01] Speaker 03:
We can only search what we have.

[00:26:04] Speaker 03:
Those other agencies you can go to, for instance, like marscent.foya.com or something like that, and you can input your own FOIA request to Marsent or more broadly to the Marine Corps, which are totally separate.

[00:26:17] Speaker 03:
Their FOIA divisions are completely separate, completely different personnel with different record keeper

[00:26:40] Speaker 03:
I don't really know beyond what the record established was established before the district court.

[00:27:10] Speaker 03:
So it's, I guess it's just a question of what's left, but it's hard to, if this search were happening in 2005, I would be very surprised that this is one of those things that everyone had to be talking about when it happened and thinking, oh my goodness.

[00:27:32] Speaker 03:
Right, it was tragic.

[00:27:34] Speaker 03:
It was no question, it was tragic, and at this point,

[00:27:44] Speaker 03:
I've had other cases, but where our service members are killed tragically in friendly fire, they can't recover against the government because of this situation and that maybe the interpreter or the translator would have different options, but it's basically when you go to war and even when their mistakes are made, that's basically the government has a kind of, I mean,

[00:28:15] Speaker 03:
Yes, it's a tragic event all the way around.

[00:28:52] Speaker 00:
So CENTCOM said that Mr. Guzman's reports talk about where all CENTCOM records are.

[00:28:59] Speaker 00:
And that's not at all what they said.

[00:29:00] Speaker 00:
They're trying to conflate joint records that come up from joint units with their records.

[00:29:04] Speaker 00:
And at issue here are CENTCOM's own records regarding its investigation, the investigation it mandated, that it oversaw.

[00:29:18] Speaker 00:
this investigation and why this was covered up, why the families never found out about it, why they were never told until Congress had to go back and force them.

[00:29:26] Speaker 00:
And while CENTCOM has said we've searched everywhere, they have in fact not.

[00:29:30] Speaker 00:
They've searched one location that Mr. Guzman alone has said this is where they should be.

[00:29:35] Speaker 00:
They haven't searched their own classified network, which is more than email.

[00:29:37] Speaker 00:
It's not just the emails and they've never addressed the fact that there's digital storage and servers like the CM on SIPR.

[00:29:45] Speaker 00:
They've never addressed that.

[00:29:46] Speaker 00:
They've never addressed the fact that even

[00:29:57] Speaker 00:
where the Jagman report was finally signed off and disseminated out from.

[00:30:01] Speaker 00:
They've never said that there couldn't be any documents there.

[00:30:05] Speaker 00:
They've simply said, all we want to do is look in this one location.

[00:30:08] Speaker 00:
They've never said they couldn't order Marsent who falls Marine Forces sent com falls directly underneath them that they direct.

[00:30:16] Speaker 00:
And then on the front page of the Jagman report, the central command commander is directing Marsent

[00:31:30] Speaker 00:
and inter-exchange pointed out that while this is measured by a standard of reasonableness, the facts are actually construed in the light most favorable to the requester.

[00:31:39] Speaker 00:
And here, Mr. Guzman's assertions are, again, filled with holes regarding where things may or may not be, and ultimately they have not met their