[00:00:01] Speaker 00:
Case number 235243, Fawad Fawari, Appellant versus Federal Bureau of Investigation.

[00:00:09] Speaker 00:
Ms.

[00:00:10] Speaker 00:
Jump for the Appellant and Mr. Hare for the Appellee.

[00:00:16] Speaker 01:
You may proceed when you're ready.

[00:00:25] Speaker 05:
Thank you, Your Honors, and I would like to reserve three minutes for rebuttal.

[00:00:32] Speaker 05:
May it please the court.

[00:00:34] Speaker 05:
My name is Christina Jump, and I'm here on behalf of the appellant, Fawad Farahi.

[00:00:38] Speaker 05:
The Freedom of Information Act means exactly what it sounds like it means.

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Government agencies bear the obligation to provide information to the public freely upon request, and the statute incorporates strong presumptions favoring disclosure and transparency, with only narrowly defined exceptions that the government bears the burden to prove.

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Appellant Farahi has been waiting for over a decade now to get anything more than publicly available documents that he produced to the FBI and it produced back.

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To date, the FBI has only produced back those 61 pages of publicly available documents and is withholding over 10,000 pages of responsive documents in full.

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The FBI failed to meet its burdens under the Freedom of Information Act and this court's precedent in four ways.

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The FBI failed to appropriately establish that the responsive documents at issue were gathered for law enforcement purposes as opposed to intelligence.

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The FBI failed to properly articulate reasonably specific categories as required by this court's precedent and the Freedom of Information Act itself.

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The FBI has not properly demonstrated that there remains an ongoing law enforcement

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proceeding which is reasonably likely to lead to future law enforcement actions that could be harmed by disclosure in this matter.

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And finally, the FBI failed to properly demonstrate and the district court failed to articulate on the record the appropriate segregability analysis required by this court's precedent that it be on the record, including an affiant attesting to a line by line review of the documents.

[00:02:30] Speaker 04:
What if the FBI did all those things, but it was ex parte?

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I'm sorry.

[00:02:37] Speaker 04:
What was the last part, Your Honor?

[00:02:39] Speaker 05:
If it was ex parte.

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If the FBI did all of those things and only adjusted ex parte, then the record needs to be clarified either by this court, if this court reviews it, or on remand to state the portions that can be

[00:02:58] Speaker 05:
publicly identified, such as, for example, stating that a line-by-line review took place as to segregability, simply making that statement.

[00:03:06] Speaker 04:
That would be true if we were reviewing a decision by an agency and they're subject to the APA, which imposes requirements about decisions being both reasonable and reasonably explained.

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But we're reviewing a district court decision here.

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And if we think the district court got it right, could have explained it better maybe, but got it right, why wouldn't we just affirm?

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The review in this situation, the review in this case is a de novo review by this court.

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And so that does allow this court to make the full analysis.

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And then under the authority of Sussman at 494, sorry, F3rd, 1106, by this court, as well as

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earlier, MEAD data, also WARS-V, DOJ, and even more recently, POREP versus the CIA.

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There does need to be an on-the-record statement of specific findings, particularly as to segregability, with relatively detailed description of the withheld material and identifying the harm that would come.

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Some of that may well be articulated appropriately and only in the ex parte declaration.

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We're not saying that the concept of an ex parte declaration is inappropriate here.

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What we are saying is that the FBI and the district court failed to meet the burden to articulate what it can say on the record in the public opinion, publicly on the record, as to that portion.

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That also relates to

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how the Bender Declaration made only conclusory statements as to proceedings still occurring, even though we're now 10 years out from the original action here.

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Mr. Farahi's certainly never been charged.

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Any criminal actions that were ongoing at the beginning of him filing his request and the beginning of this litigation have long ended.

[00:05:18] Speaker 01:
Does it matter whether they were the same investigations when he filed as might be pending or reasonably anticipated now?

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Could it not be a series of kind of?

[00:05:33] Speaker 05:
Your Honor, I believe that the from the Bender Declaration at paragraph six within the Bender Declaration, which is at JA 131, that reads as though

[00:05:44] Speaker 05:
the FEI's position has not changed, and those investigations remain ongoing.

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So there's a reference to, just a conclusory reference in that portion, without anything further, that it's the same ones.

[00:05:58] Speaker 05:
It's not anyone.

[00:05:58] Speaker 01:
You're not saying that as a matter of law, that the only law enforcement proceedings that we could consider would be ones that were in place when the case was filed.

[00:06:12] Speaker 05:
I am not making that argument as a matter of law.

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And by my reading of the case law and within this circuit, I don't believe that that is squarely addressed and certainly not squarely prohibited.

[00:06:24] Speaker 01:
So in terms of law enforcement proceeding, do immigration proceedings count?

[00:06:31] Speaker 05:
I do not believe that in immigration proceeding would count unless the

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I don't believe that it does meet the definition of the law enforcement proceeding.

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I am unaware of any authority that would qualify it that way.

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Instead, I believe that under the definitions as set forth in Cabezos versus FBI, for example, where the FBI recognized that its previous exemption and its main argument for withholding records became moot upon the resolution of that criminal proceeding.

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And so the FBI, without needing this court to instruct it to do so, did go back and then produce documents after that investigation concluded.

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That could have been done and should have been done here.

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The only amount to which, again, that there was a supplement provided as was required, specifically requested, even by the district court judge, based on the passage of time and the length of time that had occurred from the original

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filing of motions was the sole references and the conclusory statements in paragraph six at JA 131, which simply said that there was basically one phone call and the statement was eight remains ongoing and there might be interference, but nothing more shown.

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Now, if there is something more sufficiently shown that is in the ex parte communications, that is not identified on the record by the district court judge that

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this deficient standard was made.

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It's just a recitation of the standard and a conclusion, which has been made by the district court, but no analysis.

[00:08:13] Speaker 01:
Referring back to the point that you were making about Sussman and whether the district court had fulfilled its obligation to make specific findings about segregability or not, with respect to the documents reviewed and that the reasoning wasn't enough,

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You know, obviously, as as Walker's question was was pointing out, it's difficult when the information is it's being withheld is classified.

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Are you suggesting that there's sort of a more general abstract way that the explanation could be given, such as, you know, these are

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whatever, you know, storage folders and written on them, you know, all the information on them is classified and these other things are, you know, interview reports and the information about who, when, what, where is all classified and these are, I mean, is that what you're saying needs to be done?

[00:09:11] Speaker 01:
And if not, what could be done that would be consistent with a classified set of information?

[00:09:21] Speaker 05:
Your Honor, I believe what could be done is outlined by this court, again, beginning in Sussman, stating that there must be specific findings, and then continue, which is based on and citing two mean data, but then going from there in Juarez v. DOJ, as well as Poreb v. CIA.

[00:09:38] Speaker 01:
Rather than just citing the cases, if you could do just more concretely explain what it is that you're imagining, that would be helpful.

[00:09:45] Speaker 05:
Yes, Your Honor.

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Each of those cases reference that there was a line by line

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and page by page evaluation for segregability.

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The district judge said, I read the ex parte materials and I am satisfied that they demonstrate that a line by line and page by page examination was conducted.

[00:10:11] Speaker 01:
So that would be

[00:10:14] Speaker 05:
That could do it, Your Honor.

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Again, as this Court has recognized in that line of cases, including Machado Amada's V Department of State, simply stating that a line-by-line analysis took place is not classified.

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And that is what's missing here.

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The vendor declaration does not speak to that.

[00:10:32] Speaker 04:
Um, as far as the judge pillage question that that would be enough.

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If the district court had done that, what if we do it and say, even if the district court was mistaken to not, not do it, it was harmless because we've done it.

[00:10:46] Speaker 04:
And you said that's good enough.

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If that has been because of the de novo review standard that we have here and as referenced by this court in course, VCIA, that could be enough if the declarations which have been submitted to this court specify that.

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would not be necessarily for this court to conduct the line-by-line review of the 10,000 plus pages, certainly.

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But if the affiance have, in fact, attested to the proper standard the line-by-line and page-by-page review, not the document-by-document, which is referenced in the Hardy Declaration,

[00:11:17] Speaker 04:
But line by line and page by page as a question was was not not so much a demand for magic words in the ex parte declarations.

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But if we if we read the ex parte declarations and we we conclude that what what Judge Pillers said happened happened, then that would we could say perhaps the district court should have said so, but it was harmless.

[00:11:44] Speaker 04:
And we're saying so now.

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Yes, your honor, I believe that if that is contained within the record that this court has and there's been this sufficient declaration and affiant to attest to that, then at least getting that in the record as this court did in POREP would be better than what the district court did here.

[00:12:03] Speaker 05:
The district court just is missing that analysis.

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It simply states the standard and then issues a conclusion that it's fine.

[00:12:10] Speaker 04:
And in your view, document by document is different than line by line because

[00:12:15] Speaker 05:
Or segregability, Your Honor, because simply stating that a document contains some classified material or some material that fits an exception or an exemption somewhere in the document is not the same as saying, I did the analysis and there's no portion of it anywhere in the 10,000 pages that we could produce.

[00:12:35] Speaker 05:
Maybe every document of the 10,000 pages isn't.

[00:12:38] Speaker 04:
If I asked someone, did you read the document?

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They said, yes.

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I would interpret that to mean they read every line of the document.

[00:12:45] Speaker 05:
I believe that if they read it, first of all, to determine responsiveness, that's one evaluation.

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Versus if they're reading it to determine segregability, that is a different evaluation.

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And I don't know, depending on what is attested.

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Obviously, I'm speaking a little bit in the dark.

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But depending on what is attested, I think it would have to be specific that what was done was done for purposes of determining whether anything could be segregated out.

[00:13:13] Speaker 03:
I'm sorry, what did the district court

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not do on your theory.

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I'm looking at his second opinion.

[00:13:21] Speaker 03:
He says as to segregability, I can't discuss can't discuss what's in the ex parte materials, but based on a thorough review, the court concludes the defendant has met its burden to provide a detailed justification for non segregability.

[00:13:41] Speaker 03:
That's the finding.

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And you read this in light of the first opinion where the district court correctly states the legal standard, which is, can you walk out of documents that have exempt material

[00:14:02] Speaker 03:
things that are comprehensible as opposed to a meaningless set of words and phrases.

[00:14:08] Speaker 03:
You have the right legal standard and you have the finding.

[00:14:12] Speaker 05:
What is missing there is any form of publicly available analysis, which would be, for example, JA 139 just simply states the conclusion, recites what the case law is and states a conclusion instead of stating, as this court has done repeatedly in the cases already referenced here today, stating the appropriate analysis took place.

[00:14:32] Speaker 05:
There was a segregability analysis, which took place line by line and page by page, even stating that is an improvement upon what is in the district court, which is simply a conclusory statement.

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And that is lacking under this court's precedent.

[00:14:48] Speaker 04:
I have one.

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Is your client in the country?

[00:14:52] Speaker 04:
Yes, your honor.

[00:14:54] Speaker 04:
Nowhere?

[00:14:54] Speaker 05:
I don't know precisely where.

[00:15:00] Speaker 05:
I can find that out and supplement that.

[00:15:02] Speaker 05:
Right now, I don't want to state that and get it wrong.

[00:15:05] Speaker 04:
I don't know that you need to supplement it.

[00:15:08] Speaker 04:
But I ask because are you in contact with your client?

[00:15:12] Speaker 04:
Yes, Your Honor.

[00:15:13] Speaker 01:
And there was some reference in the materials to green card, to asylum.

[00:15:20] Speaker 01:
What's the status of his immigration status?

[00:15:25] Speaker 05:
So Your Honor, with all due disclaimers that I am not an immigration expert or immigration attorney, and that is not where I'm going to purport to have any expertise, my understanding is that his request for asylum, I believe, was denied.

[00:15:46] Speaker 05:
He was found to be deportable, but that is different than being deported.

[00:15:52] Speaker 01:
And he does not have a green card?

[00:15:54] Speaker 05:
He does not currently correct.

[00:15:59] Speaker 05:
He has continuously pursued options since being in the country, but does not currently have a green card.

[00:16:10] Speaker 05:
Your Honor, I would then also just like to wrap up before I allow my colleagues across the aisle to speak and identify that

[00:16:20] Speaker 05:
The FBI also failed to sufficiently identify the categories of the documents that it believes were appropriately withheld because it did not identify those in sufficient detail and demonstrate the applicability of the exemptions that it is claiming.

[00:16:35] Speaker 05:
And in addition to that, we do ask that if the court finds appropriate to re-band the case, then that allow for an evaluation and analysis of the additional objections

[00:16:49] Speaker 05:
raised by appellants at the trial court level, which have yet to be addressed.

[00:16:53] Speaker 01:
All right.

[00:16:54] Speaker 01:
Well, we'll give you a brief rebuttal.

[00:16:57] Speaker 05:
Thank you, Your Honors.

[00:16:57] Speaker 01:
Thank you.

[00:17:19] Speaker 02:
Sorry to make that use again.

[00:17:23] Speaker 02:
Good morning, and may it please the court.

[00:17:24] Speaker 02:
Christopher Hare for the United States.

[00:17:27] Speaker 02:
If I may, Your Honors, I'd like to start off where we left off with my friend on the other side on segregability.

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I believe the district court in this case was doing its duty.

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As this court said in Sussman, a segregability finding needs to be made by the district court.

[00:17:44] Speaker 02:
That was done here, as Judge Katz has pointed out, by looking at the order.

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And really what the court was doing there is ensuring that the FBI did its homework, that it conducted the appropriate level of review.

[00:17:55] Speaker 02:
And to Judge Walker's point, whether that's a line by line review or document by document review, it just needs to be sufficient to show that the FBI was reviewing the documents close enough to make a reasonable determination that there was no information that could be released.

[00:18:14] Speaker 02:
It has to be line by line, right?

[00:18:16] Speaker 02:
It may be that this court is upheld line by line reviews on a number of occasions, Your Honor, of course.

[00:18:23] Speaker 02:
There's no magic language.

[00:18:24] Speaker 02:
I don't believe that's required, at least none that I'm aware of.

[00:18:29] Speaker 02:
It needs to be sufficiently close.

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And I agree with Judge Walker that if the FBI is attesting that it read each document page by page, that would be

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one would assume that the FBI did so line by line.

[00:18:44] Speaker 03:
So you know that the the level of review they have to do it at a level of detail sufficient to conclude that anything you could pull out and turn over would be essentially meaningless.

[00:18:59] Speaker 02:
I think that's exactly correct your honor.

[00:19:01] Speaker 02:
It needs to be sufficiently precise.

[00:19:04] Speaker 02:
It can't be at

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10,000 feet.

[00:19:06] Speaker 03:
It was a lot more granular than just, oh, this document has exempt information, so we're done.

[00:19:13] Speaker 02:
I believe that's correct, Your Honor, and I know Congress had perhaps heightened that requirement with the FOIA Improvement Act in 2016.

[00:19:21] Speaker 02:
I'll just point out for the Court's awareness that that does not apply in this case, given that the request is from 2014 and the litigation filed in 2015.

[00:19:30] Speaker 02:
But yes, in all events, throughout the FBI, in the ex parte bender declaration spelled out its efforts

[00:19:38] Speaker 02:
to conduct the appropriate level of review, the court did reference that in its order, saying that it could not describe those efforts further, but that it had ensured that the FBI

[00:19:50] Speaker 02:
appropriately conducted its review and I would point your honors or I would invite your honors to review the exhibit B to the ex parte Bender Declaration where the FBI took pains to more specifically describe each document in a one such such that it demonstrated the appropriate level of review was was done here.

[00:20:14] Speaker 02:
And that's what Judge Baldwin was relying on in making his segregability finding.

[00:20:20] Speaker 01:
What about the requirement from our crew decision that there has to be a law enforcement, a concrete prospective or pending law enforcement proceeding at the time of the decision?

[00:20:41] Speaker 02:
Yes, Your Honor.

[00:20:43] Speaker 02:
In this case, there was.

[00:20:45] Speaker 02:
And what the law enforcement proceeding that was concrete and ongoing at the time of the decision and today is the FBI's counterterrorism investigation involving a number of individuals and associations.

[00:20:59] Speaker 02:
So it is a broad investigation here.

[00:21:04] Speaker 02:
I don't want the court to kind of

[00:21:09] Speaker 02:
zero in on any one aspect of a counter-terrorism investigation, which might be a little bit unique versus a more granular investigation into, say, a bank robbery or some discrete event.

[00:21:22] Speaker 02:
That was certainly ongoing, Your Honor.

[00:21:25] Speaker 01:
Is it an investigation, a law enforcement proceeding as it's distinct from, I mean, counsel argues that, you know, we're always going to have

[00:21:40] Speaker 01:
information gathering.

[00:21:43] Speaker 01:
And one would hope that we're having information gathering and counterterrorism.

[00:21:50] Speaker 01:
But I had read the precedence to require a pending proceeding, which does an investigation satisfy that?

[00:22:01] Speaker 02:
In this case, it does, Your Honor.

[00:22:03] Speaker 01:
Proceeding either a concrete pending or prospective.

[00:22:08] Speaker 02:
Right.

[00:22:08] Speaker 02:
And that's an important distinction, Judge Pillar, that the proceedings need not be pending.

[00:22:12] Speaker 02:
They need to be reasonable, at least reasonably foreseeable.

[00:22:16] Speaker 02:
They are here.

[00:22:17] Speaker 02:
And both parties cited to the Jeffries case, Your Honor, where the court summed it up very simply, which was if the enforcement proceeding is for a potential violation of law, then it's a law enforcement.

[00:22:31] Speaker 02:
It was compiled for a law enforcement purpose.

[00:22:34] Speaker 01:
So how do you define proceeding in that?

[00:22:36] Speaker 02:
That's a good question, Judge Piller.

[00:22:38] Speaker 02:
I think in this case, it's a pretty simple answer.

[00:22:41] Speaker 02:
And that proceeding is both the, I mean, it culminates in a criminal prosecution.

[00:22:48] Speaker 02:
And that's where this investigation is headed.

[00:22:51] Speaker 02:
That is the purpose of the investigation.

[00:22:55] Speaker 02:
And so the investigation itself, it may be difficult to parse out when the investigation

[00:23:03] Speaker 02:
turns into obviously would not be difficult to parse out when it would turn into a prosecution there'd be an appropriate criminal filing with respect to that but they blend together your honor so here there have been as part of this investigation there have already been prosecutions that

[00:23:23] Speaker 02:
you know, maybe not directly resulted from this, but are ancillary to this and there are more anticipated as part of the FBI's broader counter counter terrorism investigation.

[00:23:33] Speaker 01:
That are that are not identified in the record.

[00:23:37] Speaker 02:
I would point your honor to the ex parte party declaration where I believe starting around paragraph six, Mr Hardy spells out the the nature of the other

[00:23:51] Speaker 02:
subjects of the investigation or circumstances of the investigation that would add some clarity to that.

[00:23:57] Speaker 02:
But it is a broader investigation, as I stated before.

[00:24:02] Speaker 03:
Just trying to refresh my recollection.

[00:24:04] Speaker 03:
I mean, CNSS was a whole investigation post 9-11.

[00:24:11] Speaker 03:
Pretty broad on a 7-8 case, right?

[00:24:14] Speaker 02:
Yeah, the Center for National Security says, yes.

[00:24:17] Speaker 02:
I wasn't familiar with the acronym.

[00:24:19] Speaker 02:
Yes, that was a 9-11 investigation, Your Honor.

[00:24:22] Speaker 02:
But I mean, it was about a more discreet set of, I guess, documents, the names of the detainees.

[00:24:32] Speaker 03:
But the investigation was the post 9-11.

[00:24:35] Speaker 02:
Exactly.

[00:24:36] Speaker 03:
I think we're on an investigation.

[00:24:38] Speaker 02:
If you were to take out the subject of the FOIA request, the documents themselves, I think we're on all fours with respect to how the court would view whether or not the records themselves were compiled for law enforcement purposes.

[00:24:49] Speaker 02:
Yes.

[00:24:50] Speaker 01:
Can you articulate any limiting principle, like how we, with appropriate deference to the Bureau, can verify

[00:25:02] Speaker 01:
whether Exemption 7A appropriately applies in view of a pending or reasonably anticipated proceeding?

[00:25:15] Speaker 02:
Well, yes, Your Honor.

[00:25:16] Speaker 02:
I think this court and crew, I think, endeavored to go down that road and try to look at, well, how do we

[00:25:26] Speaker 02:
How do we review an ongoing proceeding for what might the bounds be?

[00:25:34] Speaker 02:
And the court identified three factors.

[00:25:36] Speaker 02:
One, it was whether or not the Department of Justice adequately described the ongoing investigations.

[00:25:42] Speaker 02:
I think we meet that task here, Your Honor, because the FBI has gone to considerable lengths to submit, albeit in ex parte form, declarations, providing a more granular explanation

[00:25:54] Speaker 02:
of what the ongoing investigations deal with and didn't just describe them generally.

[00:26:02] Speaker 02:
The second point that the court and crew looked at was the passage of time.

[00:26:06] Speaker 02:
And here we understand that is significant.

[00:26:07] Speaker 02:
And I think, again, I would point to the FBI's efforts to explain that passage of time.

[00:26:15] Speaker 02:
We're against the context of a counterterrorism investigation.

[00:26:19] Speaker 02:
Those can last a long time.

[00:26:20] Speaker 02:
Those can be quite complex, span borders, and involve very complex investigatory problems that need to be met by the FBI in this case.

[00:26:34] Speaker 02:
And third, the court looked at whether or not the government could articulate

[00:26:41] Speaker 02:
any any ongoing proceedings and I believe in the crew case it dealt with an investigation into a lobbyist Jack Abramoff and you know at that point I think the government had pointed to sentencing proceedings which had by the time of the oral argument concluded so that case had some issues of actions that

[00:27:02] Speaker 02:
had just ended or were about to end.

[00:27:05] Speaker 02:
Here, we don't have those same problems for the reasons that I mentioned before due to the nature of the counterterrorism investigation at issue.

[00:27:12] Speaker 02:
So Judge Pillard, I hope I answered your question.

[00:27:15] Speaker 02:
Just to show where a court has grappled with what are the limiting principles here when we're looking at what must the government show, I think we've gone at least as far as most other courts have found sufficient

[00:27:33] Speaker 02:
in terms of trying to provide the district court with sufficient information to review our claim of Exemption 7A.

[00:27:42] Speaker 02:
And I see I'm out of time, so unless the court has any other questions, we ask the court to affirm.

[00:28:16] Speaker 05:
Your Honor, I would like to take a moment to address a few points made by my colleague across the aisle.

[00:28:23] Speaker 05:
First of all, to be clear, Mr. Farrar, he has never been accused or charged with any terrorist activities.

[00:28:30] Speaker 05:
That has not happened.

[00:28:31] Speaker 05:
I would expect that, reasonably speaking, if the government had anything it wanted to charge him with over the past 10 years, it probably would have done it by now.

[00:28:39] Speaker 01:
Part of the analysis as I don't think there's in the record, but is are you aware of your client having been contacted by the FBI anytime in the last 10 years?

[00:28:51] Speaker 05:
Not over the course of this litigation, Your Honor.

[00:28:55] Speaker 05:
No, I have not.

[00:28:56] Speaker 05:
Prior to that, yes, but over the course of this litigation, no, I've not been aware of that.

[00:29:02] Speaker 05:
And again, there was the overlapping ongoing

[00:29:08] Speaker 05:
immigration proceedings to which I am not an expert, or about which I am not an expert.

[00:29:12] Speaker 05:
But he has not been charged.

[00:29:15] Speaker 04:
And you said charged or accused?

[00:29:18] Speaker 05:
He's certainly not been charged with anything.

[00:29:21] Speaker 05:
There are references in the record to purported associations.

[00:29:25] Speaker 05:
But those are two purported associations with individuals against whom action has already been taken and concluded.

[00:29:32] Speaker 05:
So presumably, if the government were

[00:29:37] Speaker 05:
looking to charge Mr. Farahi for anything related to those concluded criminal proceedings, it would have done so either at or near the same time, not a decade down the road.

[00:29:49] Speaker 01:
Now, when you say, I mean, there's a classified record.

[00:29:53] Speaker 01:
You identify individuals.

[00:29:55] Speaker 01:
And on what basis there's assertion that all the individuals that he was associating with that the FBI was interested in have been charged or died

[00:30:07] Speaker 01:
How do you know that?

[00:30:09] Speaker 05:
We can only operate based off what we do know.

[00:30:11] Speaker 05:
I can tell you that there has not been further approach to Mr. Farahi to indicate any further ongoing investigation or any upcoming or pending charges.

[00:30:23] Speaker 05:
And that is what this court requires.

[00:30:25] Speaker 05:
First of all, I believe that it does require that it show a reasonably likely future

[00:30:33] Speaker 05:
law enforcement proceeding, which will occur, not an indefinite, we might find something in the future and we're continuing to gather intelligence.

[00:30:41] Speaker 05:
That is not this court's standard, nor would that, that would give, that would negate the intent and Congress's intent of the Freedom of Information Act.

[00:30:50] Speaker 05:
If the FBI could simply state, or any agency could simply state, we have an ongoing investigation, an ongoing intelligence gathering investigation, then we're just gonna keep open because it's a good idea to continue to gather intelligence.

[00:31:04] Speaker 05:
And it may or may not lead to something.

[00:31:05] Speaker 05:
That is not what Congress intended when Congress passed the exceptions, which are specifically listed in Exemption 7 of the Freedom of the Information Act.

[00:31:19] Speaker 01:
It's a very difficult thing to represent someone in a case where there's information that you aren't privy to.

[00:31:26] Speaker 01:
You say there's no further approach to him, but that doesn't mean that there aren't ongoing proceedings against persons in his orbit or against him.

[00:31:39] Speaker 05:
It doesn't preclude it, but Your Honor, since we do have indicators in the record here that we are relating back to the same or

[00:31:47] Speaker 05:
a similar ongoing investigation that's being asserted here, then presumably there is nothing, or very little, is unlikely, it's not logical, it's not rational, to believe that 10 years down the road, they just haven't gotten around to going after someone they think is involved in terrorism.

[00:32:10] Speaker 05:
And that's what the FBI is asking this court to bless.

[00:32:17] Speaker 01:
All right.

[00:32:17] Speaker 01:
Thank you.

[00:32:18] Speaker 01:
Thank you.