communication. it is unprecedented ground, one that involves systematically searching the full contents of messages in real-time. plaintiffs have challenges on statutory and constitutional ground. the only question before the court today is whether the plaintiff plausibly stands. the government asked the court not to credit the plaintiff's extensive allegation and their many complaints. there's no question that applying the same rules that apply to any other case the plaintiffs has plausibly alleged standing. the precise of election of the third circuit permitted a similar challenge to session 702 surveillance two surveillance to go forward. we have alleged the government is searching plaintiff international communication as they travel over the internet backbone. we've we've expanded in detail how that is taking place.

we have alleged facts showing the nsa is capping and reviewing at least some of wikimedia's chilean or more international communication. >> do i correctly understand, and this is of course probably a question or -- do i understand the government contends that if a robot searches and it's not subject to the fourth amendment? as opposed to human being? our understanding is that is one of the government's arguments. our response is there's multiple repot parts. one one is even if that were true it be a question for the mayor not a question of standing. the government is intercepting the plaintiffs communication as they travel across the wire and there's no question the interception of wikimedia versus suspicion to establish their standing to those searches. the supreme supreme court has said the questions about the legitimate

scope of the definition and scope of for the moment rights are question for merit and not for the standing. but we also of course disagree with the government's contention that when the government uses a computer or uses a robot that does not implicate a party's for the moment right. if a government sent sent a robot into your house to look around to find evidence there's no question that search would violate the fourth amendment and would require a warrant in a search by the way human does. so we disagree both on the merits but also we don't think the court needs to reach that issue at all. wikimedia communications are being intercepted. i want to say second, another theory of sin is government is copying and interviewing substantially all tech -based communication and leaving the country including those of the plaintiffs.

we have supported these claims with official government disclosure, detailed explanation of how the internet works, credible credible press reports and publish government documents. because the factual allegations are detailing on conclusion of this court must accept as true in purpose of this motion. it must take all reasonable inferences in plaintiff's favor. they have alleged concrete injury in the interception of the communication that is all they need to do to establish standing at this stage. i want to emphasize one important thing. one aspect about the nature of upstream surveillance. is something that is different in this case. it is new to this program. the government is not simply looking for communications to and from his target, instead it is searching the full content of communication in order to determine whether they even

mention the government's target. and that's important because it means the government is systematically examining the emails and web browsing of essentially everyone in the first instance. >> for example a telephone number a telephone number. >> looking for a telephone number or e-mail address, that is not the limits of what the government call selectors but those are examples of them. so it is looking through the full content of communications in the first instance to determine which communication it wants to retain for the long-term. our claims in the standing issues turn on the breath of that initial search. we don't don't think it's relevant for standing purposes that the government may discard some of these communications after looking through them. just as if if the government looked or searched everyone's home enrichment for a particular

letter or piece of evidence and only found that piece of evidence and a handful of homes, one would never describe that search is targeted in the way that the government tried to describe the surveillance is targeted here. just because they retain only some of the medication at the end of the search process doesn't mean the initial search is a far broader. that's an important dimension of upstream surveillance per that's different than the other courts considered in previous challenges have before them. >> what what are the allegations you say that plausibly plead this dragnet theory of upstream surveillance at your talk about? >> there's a number of allegations that go the point in the can play. many are drawn from the governments on official disclosure. some are contained in the privacy and civil liberties oversight board report which describes surveillance under section 702 and has a long explanation of the scope of upstream surveillance and how up

upstream surveillance is different than other forms it is conducted in the past. i can refer the court to the pages of that report which is incorporated into our complaint by reference if that would be helpful. the fact that report is quoted in sections of our complaint. >> as i understand it you have to show the government is surveilling substantially in all of the relevant communications in this case. lacey allegations that i think are entitled to some truth is that the government is surveilling around her approximately seven points and how do you get around the fact that except for wikimedia and the exception of this case how to the other plaintiffs show is

a plausible matter that there communications are being substantially reviewed? >> i want to emphasize that plaintiff wikimedia is in a different position and has a different set of claims. setting aside that first theory and addressing the second theory which i understand your honors focused on. there's number of supporting allegations in our complaint. the first has to do with the governments on description of it surveillance. in the club report describes this as well. the government stated goals for this is to comprehensively and reliably acquire communications to, from, and about his target. it has acknowledge that it has nearly 100,000 targets around the world which it is surveilling. those targets are spread out across the globe and presumably the targets are moving themselves. the way way in which internet communications travel over the internet backbone is unpredictable. if the government is in fact

comprehensively and reliably acquiring the communications of these tens of thousands of targets, and the has to be doing so in a way that allows it to capture communication entering and leaving the country in many different places. the structure of the internet background, the backbone is structured in a way that channels communications entering and leaving the country through a limited number of chokepoints and it facilitates the kind of comprehensive surveillance for describing. >> using the government has an interest in doing this. what kind of motivation based interest. is that a plausible allegation or simply a conclusion? >> with a guy goes beyond a general interest or to gather intelligence. because of the the way internet mutations are broken up as they travel on the internet background even a

single email may be split. those packets may take different routes across the internet and the backbone. if the government was to creek choir all the relevant packets to the communication forgiven targeted needs to be conducting surveillance in many different points. the same is true for communications to and from different people. the communication to me to a friend in london may follow one route along the internet background backbone while that person's response to me in a text message may take an entirely different route. so if you have a full picture of the communication of your targets you need to be conducting surveillance at many different points. >> wikimedia has -- your home free, right? >> this court of the supreme court has said that in order for state to proceed only one of the plaintiffs must have standing. we also emphasize. >> like i said, humphrey. >> yes, your honor. i do want to return to the plausibility standard and to emphasize the question is before the court. it is black letter law that with

the plausibility of a complaint if is challenged or the court must accept all the allegations as true, mice take all reasonable inferences in the favor. >> all well pled. >> that's correct. it has to can find its analysis to the four corners of the complaint and the documents incorporated by records. >> a supreme court decision -- so we lay down the complaint here against the complaint and clapper and their they talked about the five problems for the spies problem and i would've thought that you might be addressing those in your argument. >> of course, so first i want to emphasize that what the supreme

court was analyzing and clapper was not a complaint on a motion to dismiss. it was summary judgment. what they found as the plaintiff had not before sufficient evidence. it found that there is a lack of evidence as to the interception of the plaintiffs can medication. the court emphasizing its decision, the difference between pleading and, the difference between pleading and proof. instead allegations may suffice. i want to emphasize three other key differences between this case. >> before you do that very briefly, was their discovery and clapper? >> no describe very. >> there was a pre-discovery judgment motion which comes in the door in the 12 be six or 21 motion. >> it was litigated but the plaintiffs did not engage in discovery. >> go ahead. i want to make sure that we understood. >> the other important difference between clapper in this case are at least three full. one of them is that the surveillance here is very

different from the surveillance and clapper. i've touched on that already. the. the surveillance challenging clapper was targeted surveillance. the court found that plaintiffs could only speculate about whether their contacts were being targeted. here, the, the government is engaging in dragnet form of surveillance that involves systematically searching through the content of even nontarget communication. that goes to the breath of the surveillance that is that issue here. second, there is far more that is publicly known about the surveillance in this case. the plaintiffs plaintiffs and clapper could only speculate about certain key facts that were on whether it was occurring at all. here, the government has come from those facts. the court found that the government could not even use the authority those established under section seven oh two. the plaintiffs cannot even approve the surveillance, and

both of those facts the government has confirmed in this case. the plaintiffs are challenging a program a particular program that the government has acknowledges occurring and that has been undoubtedly approved. third, the plaintiff, wikimedia is in a far different position factually than any of it plaintiffs and clapper because of the breath of its communication. and engages in more than 1,000,000,000,000 communications every year with individuals with hundreds of millions of individual spread across the globe as i want to emphasize that putting together the government's official disclosure the nsa has acknowledged engaging in a dragnet service. it acknowledged that it conducts that's on multiple internet circuits in the surveillance it described requires that it look at a minimum at all the

textbased communication. wikimedia engages in some of the communications with so many different people around the world that it is virtually on thinkable that the government could be conducting the surveillance without intercepting at least some of wikimedia's communication. so those differences we think make this case very different from clapper. the third circuit recently analyzed a similar question, that case involved prison surveillance it was analyzing the same differences in terms of what is now publicly available on the difference between the pleading standard in the summary judgment roles. i think that decision is instructive in that case. >> i want to emphasize how we believe this court should

proceed. we believe the court should analyze the government's motion to the plausibility of the plaintiff it should find that they had communications intercepted in the course of the surveillance and it should then re- meant this case for summary judgment proceedings just as occurs in amnesty itself. >> we may speak some limited discovery in this case. we do not believe that we need discovery in order to prevail. we believe a well understood principles of how the internet works in the fact that our plaintiffs on our own experts will put for that we can establish all the facts we need to prevail. however we may seek limited discovery in order to reinforce our claims in this case.

i would like to survey some of the ways in which the district court disregarded the pleading standards. the district court failed to take and credit plaintiff's allegations as true and it failed to take reasonable inferences in plaintiff's favor. instead privileged or favored his own theory of events that were not reflected in the complaint and its own hypotheses about what might be occurring over a plaintiff's version of events. the district court's failure to credit plaintiff's allegations runs against the pleading roles that this court is emphasize that a complaint not be particularly detailed the chances of success may not be particularly likely to prevail on plausibility but we think the

district court disregarded those basic rules. i see my time has expired. >> the rebuttal. >> catherine dorsey on behalf of the defendants. the first thing i want to address your honors is that this is not a dragnet program, on the upstream is not a dragnet program even according to the allegations obtained in the plaintiffs complaints which is incorporated in their complaint. the upstream program is a targeted program that is designed to collect foreign intelligence information from non-us persons located abroad. and to collect those textbased communications transiting the internet backbone. >> i take at your word, but in order to get that information you have to look at a lot of

other things that you can conclude ultimately are not your target. >> your honor, what what the plaintiffs assume in order to accomplish that is speculation in the same thing. an essay must be collecting absolutely everything. there allegations assume that the only way that an essay can successfully accomplish the program and to collect that is to collect everything and sift through. that is pierce speculation. there is nothing in the allegations that support the program must operate that way. in fact, fact, the report recognizes it is a targeted program, the government is not collecting wide swaths of communication. it does say that it may require

access to a larger body of communication than the ones with targeted selectors, but it does not give any indication as to the precise scope or what that sphere of communications collected for any details as to how that's done. those details are classified. >> but. >> but it is common ground that you need more than the to and from. >> well too, from, and about is what the nsa is collecting to the upstream program. and again the report says the government may require access to larger body to determine which messages then have -- that is page 111 of the report. there is nothing to show what sphere of communication as indicated here.

>> was the limitation on about? how do you you search for something about something without searching nearly everything else? how do you do that? >> your honor, again this is not clear from the details of how this program operates. we know it has been disclosed they search for communications to contain task selectors in the two, from, or about. how that is done is not public information. plaintiffs only speculate about how it must be done. they speculate that must mean everything is being collected. there is no support for that allegation. >> so if you want to know about every federal article three-judge, the law school from which she or he graduated,

wouldn't you search a database of every edible article three-judge to get that information? >> that would be one way to do it. >> how else? all the things held steady, how would you discover the alma mater of every article three-judge? >> you could go visit, there there are lots of ways you could engage in that. >> who, the judge? >> know, the alma mater's are. >> that reminds me of i was in a meeting the other day and i said everybody not present raise your hand. how do you go visit the alma mater of a person when you don't know the identity of that person's alma mater? >> i like to answer your question by tying it to specifics faxon navigation's. one of their of their points one

of their theories of standing is the nsa is collecting substantially all communications. i like to drill that down. that's based on the assumption first of all that the overman is monitoring most of all of these 49 chokepoints of the cables. but they only allege that the government is monitoring only seven or 17 of those, that is seven or 17 out of 49 points is not substantially all by any means. then they also allege further to make this substantial allegation that the government must be intercepting every communication at every chokepoint that it does monitor, the problem with that is with how the internet works is that each of these chokepoints where the submarine cables come through each cable has some cables and each of those sub cables has a thousand fiber-optic fibers on which the

communications transit. our lead that we submit explain that there is at a technological matter the government would not have to collect the communication on the sub cables, it could collect just on the sub cable. and plaintiffs have offered no allegations that show that the government must be collecting everything that passes through on sub cable. so they have not met that. >> i don't understand how the government would do a very good job if it proceeded as you suggest. if they want information more than the to and from and they might have perfectly good reason

for doing that, i'm not prejudging at all. heavily for national security. but if they want something more than two and from, they're going to have to look at everything. >> again, that speculates that is the only way or the best way to do this program and obviously the government cannot disclose the details of how it does this, but they're speculating that is the way it is done. in clapper they indicated the dissent in that case suggested that because nsa has the capability to do this it seems possible that they could be collecting everything and the supreme court ruled that is not enough for standing and that is speculation. that's the same situation we have here. >> 's if you go down you remember that justice -- has sort of five reasons and you we can see that five of those things, maybe not all five are still present that made it speculative. >> that is correct.

>> so maybe you can go down that list with me. >> the first one the government will target the communication of non-us persons with whom they communicate, that is still speculation. >> and that's what mostly been talking about. >> yes and that the government will succeed in targeted communication and plaintiffs also speculate on the last on the plaintiffs will be parties to intercept of communication. >> the cycle and it depends, it is also not clear that there's communications have necessarily that they can show that there communications would necessarily be collected through upstream as opposed to other program so there is traceability to upstream that pertains here. >> what about the media at least the plaintiff stands at a different posture that the government of the doesn't messerli need to engage in the dragnet surveillance program in

order to gather what the medias communication. what about that? >> again, wikimedia's allegation for their standing specific are speculative. i want to chill down again on each of those what their allocations are to say that they generally allege that their communications are so numerous there it think the government must be collecting them. that there are limited pathways traveling and this goes to the 49 summering cables and so they say there those limited chokepoints so they have one chilling communications they soon they have to transit all of those. again, that's not a silly true because each chokepoint has one cable than multiple sub cables

and then up to 1000 fibers. so that is not a limited number of pathways, that's a lot of pathways. the of pathways. the next part is they say their communication are so numerous and geographically widespread that they must transit all of those paths. the problem is they say 1 trillion but they don't provide the denominator for that number. so 1,000,000,000,000 out of how many communications on the internet? we explained in our lead declaration that those 1 trillion even if you are just considering e-mail sent, it is less than one percent, it's about less than one third of a% to their emails make up all email traffic. if you look at webpage views is less than that. again, communication when you look at them in terms of everything that's happening on the internet are not so numerous that you can assume the traveling everywhere. the third assumption is that even if they're only monitoring one chokepoint they sagan the

government must be collecting some of their communications on the chokepoint. again, that assumes the government is collecting everything on every fiber in every sub fiber on that chokepoint which is not necessarily true. that is speculation. >> so they allege things that they sometimes not true that's why we have trial. >> you're right. but that's that's they have to make a plausible claim. >> here i think you can safely say they have alleged a possible way of how things operate but they have not given this court enough to show it is a plausible claim of how the program works and plausible that it's operating it's dragnet, or plausible that wikimedia's communication are so numerous in

the context of everything that goes on in the internet, that their their communication must be being collected. it does not nudge their claim from possible to plausible. >> you agree, of course that it is well-settled that often you will have issues of standing intertwined with the merits such that a court cannot really separately determine standing without proceeding into the merits. you don't believe this is that kind of case? >> that's right. we do not believe that it's this kind kind of case. >> and yet, both at the district court and as i read your brief, although the district court disagreed with you, at least in part, you did not make a factual challenge to standing, you made a spatial challenge.

>> that's incorrect, we made both. the district court only rolled on a facial challenge. that's why. that's why we submitted the declaration to challenge. >> the district court said that declarations came later. those declarations did not accompany her motion. they came later. because i read the district court orders they said i don't need to look at the declarations but they're not proper for me anyway. >> he chose not to look at them because i think he was worried about that intertwined between the merit. >> and probably so. >> know, your honor i would say why not because here plaintiffs need to say it's a minimum here that their communications are being intercepted in order to show standing. that is entirely mainly separate from the mayor question. of whether such interception or retention or depending -- whether those are unreasonable

searches and seizures. the court has and apply that here. it's a merit question. the court needs to decide on whether they have alleged their communications are being intercepted. >> it's not the reasonableness of the search. >> no, that's that's a merit. >> but there's also part of the merit that asked if it is an unreasonable search is a plaintiffs invasion of privacy that is being put at issue. closer to the same questions both on the merit, the latter of which is part of standing. >> i think they're certainly not intertwined in the way this court has described. where scope of employment issue was the exact same they're going to decide. >> your argument is that it is implausible for the court to accept any of wikimedia's communications are being search. that's your argument.

>> are argument is that the allegations they have not given specific support to make a plausible claim that their communications are intercepted. >> they would need to embed something in their data transmissions that would alert them when their communication surreptitiously search. they would need to get up .. every time they looked at their communication. >> there be a possible way supposed. >> i'm saying there are ways to allege standing. here they did not even allege how many that they had a substantial portion of internet communications they do say the

nature of the work is diverse all around the world such that it is in an inevitable that some portion of that traffic will traverse one or more the governments chokepoints. what's implausible about that? >> again you have the cables that they have not shown at those chokepoints that the government is collecting everything at those chokepoints. there's and the nature of their traffic is traversing against along all of the chokepoints so the government has to be -- with the traffic. >> to do the best job of collecting that when traffic can go anywhere it must be taking everything. again, there is no allegation to support. >> what if they allege

governments capturing 90%. you see where i'm going. >> i can see where i'm going but >> would 90% do it. >> i'm not going to conceive that 90% i'm not going to concede to a number, but they also cannot just allege 90% and that's into their job. they have to have to have well pleaded allegations supported with facts. sufficient factual matter to make their claim plausible. they haven't done that here. >> that are neither dragnet allegations with respect to the media if you accept the allegation that because of the nature of their traffic it traverses across all the chokepoints. if the government is surveilling some of them inevitably it will sweep up some of that traffic. >> the court gets a look at how the world works too. when evaluate staining and a motion to dismiss. the the fact is the internet doesn't

necessarily the way their legend. speemac, we know that? that? we have that in the lead declarations. >> the district court decided it is before this court and this court can decide it's. >> it wasn't in the district court's record. >> but the district court specifically excluded your declaration. >> i chose not to rely on it but it doesn't mean this court is precluded from relying on those declarations to understand how the world works. >> how would appellate review work if we we were to free every

we were free to look at it and the district court says this is not part of my decision. >> it's an alternative basis at which this court to affirm. these are in the record and that's part of the appellate record in this court could affirm the dismissal below on the factual challenge ground on the basis of those declaration. we would have to. >> i don't think you would i think it would be a factual challenge and it's again were not in an index strictly intertwined so it have to be converted to a rule 56. >> certainly a minimum of the court disagrees that it doesn't think the factual challenges before it we would urge this court and if you don't think you could affirm on that challenge we would assess court to reman a factual challenge proceeding rather than requesting it to go forward. at amendment the district court should have a chance to roll but we think this court can do that on its own. >> i see that i'm almost out of time. >> on the last point, it six of

one and half dozen of another because if we think there is a factual challenge to be made to standing than that really does collapse on the merit, does it not? >> i don't think so. i think this court can rule we have presented. >> i understand that i understand that argument but if we disagree with you on the and we read man the case to the district court the district court further standing analysis will take place in the context of a rule 56 summary judgment proceeding in the near declarations will be before the court, the plaintiffs can put in declaration and perhaps permit some minimal discovery. >> we think they have already waived their challenge since we raise that before, they never put in anything in opposition to the factual challenge we raise before the district court. >> we would ask this court to affirm the judgment.

thank you very much. >> your honor i would like to pick up where the court left off. we don't believe the declarations are properly before this court just like they were not. >> i have read and reread the district court's footnote about this. it seems to seems to me that they are here in a matter of concerns we shouldn't decide it now we should send it back to the district court, but i remember what you said to us the first time around, he said he didn't think you'd have any discovery or would be very limited. you do not not talk about you had a bunch of depositions. >> we expressly asked the court that if it found that we are

putting forwarded factual challenge we wanted the opportunity to put in our own declarations. >> if we are on television we could have a court reporter read back the record, but i thought you had said first time around in response to one of my colleagues that you did not receive any discovery or any other evidence that you put in. the you would be on the standing argument set forth in your complaint. >> that is not what i intended to say your honor. we fully intend to put in our own facts could in those were own technical experts. we would seek also to conduct limited discovery on these issues. we believe those factual submissions and that discovery is appropriate summary judgment because the issue before the the court and whether the plaintiffs communications are being intercepted is inextricably intertwined.

>> than the follow-up question when they have put their evidentiary information before the district court you do not put anything contrary so is the record it has that in without any contrary evidence from you, correct? >> we argue to the district court that a factual challenge wasn't admissible and we said if the court concluded otherwise we asked for the opportunity to perform narrow factual record. we set a factual challenge was inappropriate precisely because the factual issue in dispute is intertwined with the merits. the question of whether a person's a person's phone is wiretapped or the houses search whether the government agents entered the house or not is one of the factual elements are showing an unlawful search. is clearly intertwined with the merits. the court found in a harder case that the facts the standing facts were intertwined in the same is true here. you heard

heard issues that under the fourth circuit law under adams that should only be resolved under summary judgment. i also want to say that, my time is up. >> when he said that it wasn't, but now it is. >> i also do want to say that the government's declaration is misleading and inaccurate on a number of points including points about the cables and fibers. we plan to rebut those facts with our own technical expert. again, we believe it's a appropriate to do so summary judgment. some of the claims made by the governments witness are actually in fact contradicted by materials in the record including in the p club report and other materials we have cited about the comprehensive nature of the surveillance. the opinion itself indicates the government is retired retaining any information on it analyzes

information based on the fact that the government is conducting comprehensive surveillance across internet backbone. >> my curiosity is tear me apart. how did senior judge ellis managed to get this case and the district of maryland? i see in the district of maryland in -- >> our understanding is the district in maryland did refuse itself, it issued an official explanation. >> thank you. >> i inquired in my sources thank you your. >> coming up on c-span to his book tv in primetime. as we talk with politicians about books they have written. starting at eight starting at 8:00 p.m. eastern mitch mcconnell in his memoir. outgoing california senator barbara boxer, her book, the art of tough.

facing top politics in life. jc watts, author of ""dig deep" we close with dave brad who won a primary with eric cantor. mr. brett's book is american underdog, proof that principles matter. book tv in prime time on c-span2 starting at 8:00 p.m. eastern. >> every weekend book tv brings you 48 hours of nonfiction books and authors. this was coming up this weekend. saturday at 5:45 p.m. eastern, photographer matthew christopher tells the stories behind his series of photos of abandon schools. factories, zoos, and beachfront factories, zoos, beachfront communities across the u.s. in his book quote joseph beck talks about his book, my father

an adequate atticus finch. he spoke at the 20th annual southern festival of books in nashville. at 10:00 p.m. afterwards john hopkins professor looks at new farming methods and technology and their impact on consumers, the environment and workers in her latest book chicken, farms farms and food, how meat production affects others. >> people in america have never really been on a farm. maybe they go to the county fair, but they don't know what it is to be a farmer, which is not a romance. not a romance. so there is a romantic area of culture which i find exasperating. it makes it impossible to think about agriculture clearly. >> megyn kelly talks about her life and career as a journalist

in her book, settle for more. she spoke with kathy k, at 5:15 p.m., christopher blakely discuss their book "a torch kept lit québec and examines essays on famous figures written by christopher buckley's father. at 615 p.m., medea benjamin looks at the relationship between the u.s. and saudi arabia in her book. go to booktv.org for the complete we can schedule. >> in late november the supreme court considered whether bobby more convicted and sentenced to death for murdering a store employee during a robbery in

houston is eligible for the death penalty. attorneys say he is intellectually disabled. in 2000 to the supreme court ruled executed people who are intellectually disabled violates the constitution's ban on cruel and unusual punishment. >> we hear argument this morning is 15797, moore versus texas. >> mr. chief justice marriott please the court. in atkins versus virginia, this court held that the eighth amendment prohibits executing people who are intellectually disabled and in hall versus florida this court reiterated that the inquiry into whether somebody is intellectually disabled for that important eighth amendment purpose should be informed by the medical communities diagnostic framework and by clinical standards. texas has adopted a unique approach to intellectual disability in capital cases in which a prohibits the use of current medical standards, it relies on harmful and

inappropriate stereotypes including the so-called% real factors. it uses an external ordinary and clinically unwarranted causation requirement. fundamentally it challenges in disagrees with the court's core holding in at cans. namely the entire category of the intellectually disabled, every person who is intellectually disabled is exempt from execution under the eighth amendment. >> that is a long laundry list of objections you have. the question presented focused on one. it prohibits use of current medical standards and requires outdated medical standards. i think several of the other points you made are not encompassed within that, presented. maybe there are questions that should be looked at but they don't seem to be covered by that.

you mention the correspondence with clinical practices. has that changed? did texas to part from clinical practices under the old standard as it is under the new? . . >> senate. >> then they are subjected to now was important to the

court in its determination. >> abbas same question as the chief justice it seems that the question presented is not cut to the case says the hard negative as you describe it and i don't think it is fully reflected but whether you use the most current wars lightly e older medical there is still a conflict. m i right that is your very quick. >> yes your honor but the current clinical standards accentuate the conflict to make it even more clear. >> that would be need that was that those are in conflict with the old standards? there is a need to be a difference for you to win the case. >> that is correct. >> but what is more

eye-catching is that it prohibits the current standards to reject the other so did you get yourself in the door with their dramatic question but now going back to the concern that was present under the old standards. >> first. your honor it is woven into the criminal court of appeals decision. one cannot look to the judgment until the use of current standards about the framework. >> i answer -- sorry to interrupt because essentially that the court of appeals said you are barred from using new standards you must use those that exist so they are the sides flipped of the same queen and prefect seeing

their framing standards but you word just reflecting that we have a case and you have to use it. >> the question presented talks about current and but also she is so standards in asia isn't it? fuel think it bought an but first of all obsolete that question presented we would stand by it but instead negative acquired the use of 1992 standards. >> let me ask you in different terms.

>> no with that wording. >> data know how you prevail on the question you presented. >> because your honor it talks about prohibiting. if your honor said can estate prohibit? >> what do you mean by prohibit? the of lower courts from using a standard different

but then there are the additional considerations. and to disregard the of latter. and the are the medical standards at that time? are they not correct. >> respectfully disagree become as what the court said was after following the 1992 standards, it said be viewed those standards exceeding these objective. that is the words the court used that are not clinical

in fact, they are anti- clinical. but here as a justification for prohibition as it says of the petition appendix a of that sensitivity surrounding bad diagnosis which dancing is a sharp contrast with the clinic cooled definitions it was a fundamental premise where the inquiry has to inform of free-market no way can be informed by the community framework affair is the solution. >> no doubt what the texas

court said. but to have a clinical definition and what we have established is stated sharply and clearly is from the courts is that how you read that correct. >> exactly, your honor. so it is helpful to see how obviously by for death issue and how these adjudications in light of the up passage of that justice ginsberg just quoted from judges to

lawyers the and message is clear and unmistakable. you may not rely on clinical guidance.

to evaluating of there is a sound reason for doing so. and if there is a consensus on that point whether the states do and the third is what do the state do and tellingly texas uses these factors with prohibition

only with the death penalty contexts. end as the court explained explained, and the condition of the intellectual disability is far beyond the death penalty. so when it is treated very differently with much more severe restrictions other then the death penalty. >> let's go to that practical application of what your saying. and they found to that mr. moore had bid he could not prove he was intellectually disabled his psyche was hired with and what was generally recognized clinically so

what is of broad and with respect to that problem and second with the function prong? identify the two ways in which what they're doing and applying the standards. >> and to be in very sharp conflict and especially with current but that was the standard error of measurement down at 69. but what the court did was is the standard error of measurement within and in

and of itself discriminating that mr. moore could not establish the intellectual deficit reduce ability. and the reasons that the court gives one but that is not consistent -- consistent but the court says he was on death row. but there is no rule if somebody is on deaf road that they use serve them but there is no clinical basis for that but after they took that examine 1989.

>> but as you have alleged in your brief but system that to things like poverty or performance word not attributable thrale a good only essentially. why is that clinically wrong? >> but the way that the court dealt with that. >> would you say something about the adaptive behavior? is that a strong way but. >>.

>> the first in terms of cause -- causation with the intellectual deficits one and is well understood as a critical matter. but a few of the inquiry of rather than a cause is completely understanding but second to include things in addition like poor academic performance that not only to attract but well recognized and say risk factor of that characteristic and third as six played -- as explained that there is no way to make the kind of showing that the

court requires it is simply impossible to do. sewed to talk about the risky of the threat there is no question with that causation requirement. >> maybe you can respond to justice alito quick. >>. >> is the undisputed he did not understand the days of the weaker the months of the year or how to tell time in the standard units of measurement. >> what is the problem with that analysis? >> one of them the court focuses on strengths that outweighs the deficit.

is that improper? >> yes. so with a number of experts of psychiatry has adaptive functioning when these experts were cited in the supporting amicus brief that says any assessment of adaptive function must give consideration to deficits alike. >>. >> your honor the clinical guidance from the american

psychiatric association and the clinical guide is that comes out once every 10 years is very explicit to focus on deficits and not on strength so for two very important reasons that that clinical inquiry is the degree that somebody is impaired of their everyday life so focusing on that impairment and second, of very common stereotype that if somebody has the strength baird not intellectual leave disabled and with both of those sources emphasized. >> but those professional organizations by a majority vote that day are not under constitutional law quick. >> i am not saying that but justice if the court to will

disagree. >> courage you be talking about two different things? i may be wrong but with adaptive functioning there are areas but if you have deficits in four of these areas it doesn't matter you don't have a deficit in another. so with then each area psychologist can look with envy area to determine if there is the deficit have to look at what you can and cannot do to decide if there is a deficit in that area so they may not be in conflict all. >> exactly or if it is a particular skill because he cannot drive but yes baking and -- they can. >> this question idol thank

you can answer but these cases, there will be a bunch of easy cases the in cases like your client on death row 36 years. there will be borderline cases and the reason they are borderline is taken as the testing is that the border like the i.q. test. then you'll put weight on related and adaptive functions on its face it may make that easy in some cases and tough in another. harvey's supposed to have those but there are others in the country and in

different states which may have different standards and if you have soundview point meet to something that will. >> but with those borderline cases. >> that is why i would ask the question i want to be sure. >> first of all, what do the courts do? but this is to be informed by the medical community. >> psa would never they duplex i am now asking a different point if you want my true motive i don't think there is a way to apply the standard uniformly across

the country there for their will be disparities and for those two are alike and are treated differently that is the whole story so tell me i am wrong there is a way to do it. what? >>, your honor i think the best place is the current pet in the pages that address this and it points up the standards because for the first time the 11th edition because of this problem of stereotypes that they have strengths that cannot be considered the first time that would is off-limits about the issues

and problems you are intellectually disabled and the user's guide for the first time with a list of harmful stereotypes that include exactly that. and what they think of the application no question that texas in is extreme and stands alone to basic lead disagree with the core promise of backing in sat those that are severely or mentally retarded and those who are mightily e insane but there is no obligation and also itself the court said of courts of criminal appeals said toon decide a

consensus of what the line should be. but they just decided. >> i reserve the balance of my time. >> thank you. >> think he mr. chief justice if i may please the court. using the dsm4 instead of five there is no difference with the texas standard and the current clinical frameworks. this has shifted to the discussion of the seven then evidentiary factors. and bay are grounded as reid

>> pet what that goes to is the second to prong in all those questions are asking can someone function in the world? >> and it was seven of them? >> in the end it didn't matter where anyone came from. >> it did but in pages 53 through 55 rico factor by a factor to show how they are congruent and it tracks of court to shows that analyzing those facts even under to answer those factors.

so now done after the second prong it is not a free floating test with that three-pronged established us. >> could you agree with this and to make clear the view that to execute people a 100% consensus to be intellectually disabled would you agree? >>. >> but i am talking about the other decisions and i thought that you said that your view of state discretion is that a person

that every clinician fines to be disabled the state does not have to find because the consensus of texas is the sins would not find them to be disabled isn't that the premise of the court of appeals decisions greg. >> no. quite the contrary. the previous opinion would flag be issued of a texas consensus than twice said it would not answer the question. that is for the legislature but instead took over those clinical standards. >> then i really don't understand your brief but it seems the texas court said we will except the three

dimensions of adaptive evidence and iq and age but with respect of quality and degree of impairment we will not except the clinicians views know people with mild impairment can be executed even though they would find those people tune be intellectually disabled. >> to those cases since then. >> then know there is a three-pronged test bed the majority can attest to each of those and again it seems to be pretty clear from your brief to establish a national standard that if you are not that day do need to follow these clinical assessments? that is not what you say on

page 19 through 21. >> the court has recognized between legal determination but to adopt those clinical standards. >> times saree kodak to justice kagan question. >> but you were talking about my question. go-ahead. [laughter] >> said there is the imperfect fit in the court has excited that language for the same opposition. and bin to wholesale adopt pet but day it actually did it was the laugh precursor says there is no difference in that is why we are not talking about the three-pronged argument.

>> justice kagan laugh laugh. >> so one of the of factors is the idea that what made people think about the person growing up is allowed them to adopt a function but it clinician would say that is to the stereotypical person of the adaptive functioning which is different from the clinical view. but the factors make it very clear that you are supposed to realize -- rely on what the neighbors said and with no experience with respect to intellectual disabilities so that seems to be a big difference whiff of clinical view of disabilities. >> so clinician's would also

look at the testimony at the penalty phase retrial. so it isn't that this is irrelevant and did just depends on the totality of the circumstances but. >> no. they say that this could trump everything for cause of that underlying view of the court of appeal cases that we can execute people that the clinician would find it to be disabled. >> they did not say is a seven but that is constantly applied. >> u keep saying the three-pronged definition but that just says look to adapt a functioning, iq, it doesn't tell you anything

about what quality were up to an extent of impairment and this is why. >> you can continue. >> but they sent back a case directing the lower-court replied the of the hands had analyzed the plate -- the case per npr's and even though there are stereotypes. >> beds all of the other clinicians record budget -- recognize that they can have adaptive functioning like be

idiots of bond. is your position somebody could put calculate now off one negative laugh in their head butted the same person has a job and but is said profit -- person not disabled because they use that skill in a way quick. >> no. with the texas standard says pet baby first the trial court because it held was prohibited from the facts of the crime. >> but we are not reviewing. but what did the course and in this case but the

appendix to the position but then on page d and but those factors are weighed against the findings so is it clear these findings actually played in this case. >> the second alternative holding within the related this increase as it was already concluded that there was sufficient intellectual functioning of the first and adaptive testimony that said i do not have uh deficits to find a diagnosis. spec bad this acing goal factors.

>> but there could be either facts of the record and that is why he said there are the opaline trial court judge to do not apply. and another does not have to apply. >> pet depending on who is sitting in the trial court this week. >> no. it is discretionary. but the trial and the

appellate courts if they are not helpful in a particular case to make just looking at the record is there evidence if not that is not helpful factor in this case. as far as the universe of people that would dare would not be covered they have used the factors to grant the defense. also the trial court decision. >> but with the petition errors brief the factors are intended -- intended to limit those and but to screen out those individuals >> is that the effect greg. >> no. by looking at the prior factors.

>> baird disabled but that is not the question. can't baby across but the sec a 1/2 but those clinical standards are too subjective bandeau reflect with this if and also just of the missions think prepared but justice kennedy is right but the texas consensus point but it ticked the adaptive one with significant limitations of adapted functioning in the number

you could apply that to the records to make their are two things wrong. one but this morning with the oral argument but i reading them they're not consistent but you say they don't the other side says that they do. >> so it is the question of why. but i have to edmonton reading, i came to pause when i read the word that they're trying to figure out what to do in borderline cases. i am understand that they say we have to figure out above level of texas citizens would agree from the deaf penalty. so those other words that is

on page number six. but when i read some other things, where they tried to do this, what is the purpose to figure out who not to execute the way they function. with so look at what texas citizens that reflected that i do think but in this instance to agree to that nonconformity of the 50 states. second half because the question is not with the citizens think of who should be executed that has nothing to do with that oddly enough. in this case it's a technical matter about this individual and irrespective

of what texas citizens bank. dc my question quite. >> personally i think they would go back to the citizens of texas berger you tell me if i am right or wrong. >> i believe that is mistaken because there are two points after that discussion consensus as as as the court dealing with individual cases we decline to insert the question without the significance greater response and runs vehicle determination of the medical diagnosis. but it goes on to adopt the clinical standard.

>> he was on the borderline as opposed to determine the fight in to be the adult -- the latter. >> so is it fair to say that >> but then you are considered disabled spinet but one of those cases the use sainted will lead which was steve was cyclical.

>> battle of the cases you provided there was clinical evidence of moderate to severe. >> that the factor isfahan -- would find the insufficiently disabled. >> but what i can point to who that to be loudly disabled. >> but if i could pull of the question if texas is prohibited the current standards from being used and they seedbeds but they've repeatedly quoted. >> then.

>> appeared only uses those factions but it does not have that inquiry and that is part of the case as the holding that the new medicines say -- said ruffling our presence. >> but to have no support anywhere, would that have been a valid reason for those current senate boom but for the requirement the dsm talks about the application that is the odd case to decide that issue with the second alternative there is no causation. that is what the supreme court said vera not aware of

any case that it was up point on which the claim was denied the basically your decision and then those are functioning on the i.q. test not related to his abilities and where did -- morbidity factors. if they say that, how do say they were not binding he was not intellectually disabled because of the defectors? that is how i read the decision. >>. >> but that testimony was looking at the old iq test. i am not sure.

it is probable he is intellectually disabled but would not qualify in my judgment because of his adoptive skills. but even the state's own expert probably said he was intellectually disabled. >> they did say that was borderline of functioning. >> with this is the second hole when we optional -- the petitioner expert there. >>. >> bat at the time and leave would and then a fed base since. >> but that strategy was reasonable pence they could grow in prison that was in

mitigation evidence pet the petitioner expert agreed that they were no where near and the disabled for lack of education was to blame. >> regrettably but the defendants were represented by counsel who thought that arguing differently was a better strategy civic it would have been on the books but that is why it is a contradict same argument but regardless the testimony had the most reliable expert who clearly reviews of records and they said very don't have the deficit for the diagnosis. but the question presented

here is if texas is well established and violates the eighth amendment? and they are well within. there are for sale samos one is a free market in the third and that is the position they're taking. >> but to determine if they are intellectually disabled one? or a juvenile offender to determine what to do with that. but with the current medical standards in both categories . does it have day difficult story only quick.

>> that gentle simic there are others but as the athens of -- but to determination the legal. of mobley. >> but it is wrong for a state to have a different definition. >> that is exactly the point. >> bet the whole point but to say which it is determined borderline cases

ought to be executed or should not be because they're less morally culpable. i think that is what they said. that does apply the reason as was just pointed out and then the question illness for what purpose of the other case was it to give each state the right to decide importer line cases i and usually within of law but to appeal to a technical definition if you are who was not retarded or disabled . i think this does present that. >> most dates have no and find.

>> but when the trough. >> there is a the establish there is a national this. >> but those various factors or the entry test can be applied and no state prohibits the use of adaptive strengths. but use the least know will get the hackett he he so if i is i. >> but he has this. and but with that disability

component to testify that mr. moore could not fond memory recreate. i don't quite believe that but she did not believe that every person who let 13 because he was dumb and illiterate to. he cannot tell the days of the wheat board the months of the year or time or anything that was not considered within the average your bow average for intellectual functioning. repeated the sec. >>. >> it is not part of his

intellectual disability. >> he did not have that deficits. there are sawn limitations. >> but to show up during the proceedings. and in response to the questions of what is going on and laydown in the streets. >> the house is that different? >> but the state had no problem to say even the you could work and earn a living , to 92 but also severely and dysfunctional

spinet bet that the strength >> bed did is not part intense but they pledged not to address this and one but that strength of adaptive function. if you use the standard. >> no. id did not. with what happened spinet but according to the trial court, reducing ad tech.

>> i am trying to reconcile. >> i think what you say is the tenth. >> there is the three-pronged test and. >> but with that clinical disability and culpability with each of the los the court can into -- particularly what lovell's of impairment. is that a fair assessment quick. >>. i don't believe so. what the three but then you could apply that. i thought that was the entire point. but no matter how but to

perform that analysis will also adopt those current standards. >> it ain't you mr. council. >> your honor just said he san but with those clinical standards i would suggest the court looked at the american bar association because it goes through three decision -- decisions reached each the expert testimony is to news. and the texas courage and now listed navy.

>> bed to concede asian hand and led dsm moonves and just for the record i did not conceive that. besides justice keith and in st. pete or to control and there's a number of factors that the court to deny get to. >> but that will not be executed. but the chief justice initial question presented is an addition to the fact to be woven with those decisions and our reply we repeatedly used of phrase

like non clinical or standards and the state with its opposition rested heavily on those factors. and those of our specifically directed to that. that was extensively discussed at the time spirit verify what you said about dsm4 and five because i had a different impression from the regular argument. if we says everybody has to adopt number five in the number six comes out did they all have to go back to reconsider? been making you have to consider the mess the diagnostic tremor. because that represents the scientific method.

>> but with regard to intellectual disability. [inaudible] but those factors are all consistent with dsm4. >> they're completely inconsistent with those critical factors from the day they were announced and is even more clear in light of those standards. my friend was suggesting there was some question based on and whether there was an exemption. . .

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