s they are provided will be small arms, small unit arms and so forth. there is a limit to the kind of sophistication of arms that troops trained in this way will be provided with. >> before i ask you to sing an irish song come iranian activity in and around the gulf that required a u.s. aircraft carrier, that has stopped. in light of the negotiations going on right now, if you have any concern that the guard units are not under the control of the government of rouhani, that they are operating freely and there is a great deal of independence, you have to move significant assets to respond to that. do you have that concern?

chair martin dempsey: whether i have a concern or whether it is true, the government of iran is responsible for their behavior so we are concerned about their behavior. there is about six things that concern me about iran's behavior. one of which is the nuclear issue. i'm certainly supportive of the effort to try to resolve that the politically. we will have other issues with iran. -- resolve that diplomatically. on occasion, there are efforts to threaten freedom and navigation. we have to work these. the government of iran has to -- if they are going to act responsibly and engage the world as they claim they wish to do, they have to control the irg see land forces -- irgc land forces.

>> going back to the syria training program, when exactly did it start? can you tell us more about who the trainees are? are they from the fsa? the second question is regarding drone operations. there have been some measures in congress to speed up this transfer of drone operations to the military. can you give us an update on what is happening with that? the u.s. military has announced drone strikes in the past and somalia. had there been drone strikes in yemen? secretary ashton carter: as far as the training is starting now that i need to explain the process. these trainees are recruited

they are ventted and only then are they put into training. the training takes some time and then they would be inserted into operations and the trainees behind them -- we hope this to be an ever-expanding program once it proves itself, which i think it will. with respect to drugs, and limited in what i can say. -- with respect to drones, i am limited to what i can say. the president included -- in being as transparent as we possibly can. drones are no different.

they are used only when it is necessary and appropriate and there is no better way to achieve the same objective. we have a preference to capture individuals. it is done with the utmost care and deliberation. that is the most important thing. obviously, we in the defense department stand ready to do whatever the president wants us to do, play whatever role he wants us to play in this. the important impulse here is one of transparency and conveying the care taken to make sure that these actions are necessary, appropriate unlawful. -- and a lawful.

-- and lawful. i can't talk about particular places. that is the general philosophy behind the management questions you are alluding to. >> could you clarify -- yesterday before congress, he said there is a force to combat assad's forces and the islamic state. today, you are returning to that -- if they do get into a fight with hassan's forces -- assad's forces come is the question whether they intentionally engage them? can you give a sense of whether or not you are concerned these training operation started -- secretary ashton carter: let me be clear.

yesterday, it was in the context of the no-fly zone. this is a different question. in the case of the train and equip forces, they are being trained and equipped to fight isil. that is the purpose and that is the basis upon which they are being vetted and trained. the question was raised earlier about what happens if they are not being asked by us and it's not part of our program to have them engage the process -- forces of assad. if assad's forces undertake to engage them, would we have some responsibility towards them? we what appeared they are not -- we are.

they're not being fielded for that purpose. >> [indiscernible] secretary ashton carter: we have some responsibility. we have not determined yet all the rules of engagement we have acknowledged that we have some responsibility to support them. >> two quick follow-ups. in terms of yemen, there are reports that a top leader was taken out by a drone strike. can you confirm that? can you say clearly if the u.s. military is planning to overtake texas -- secretary ashton carter: no. with respect to the first one i'm afraid i cannot give you a specific response on this

particular strike. we just don't talk about those and certainly not from this podium. i will say, to the general question of aqap in yemen, we continue to apply pressure there. the circumstances have changed in yemen. when you have a stable government in a country, gives you more opportunities for counterterrorism operations. we do have other ways of doing that and we are keeping up the pressure on hq and we continue to do so. >> do you believe iran took the -- hostage because of the uss

teddy roosevelt's involvement in following their weapons convoy? did you stop accompanying the ships because the tigris was going to be released today? chair martin dempsey: whether we believe it was a tip for cap for turning their weapons convoy around, i don't believe so. the government of iran stated it was to resolve a long-standing financial dispute. there's reason to believe that was true. when they did it was certainly a violation of international law. we don't think it was a tip for cap for our activities -- tit for tat for our activities. we put a clause on it from the beginning. to determine whether the threat

would be persistent or whether it was episodic. we have the resources and place to quickly turn it back around. >> in question about the moderate opposition. will the united states being paying salaries for these people? what is our responsibility if they commit war crimes? secretary ashton carter: they do receive some compensation as well as training and equipment. and support. secondly, and explicit part of their training is how to conduct themselves in a way that is consistent with international law. that is an explicit part of our training and also an explicit part of our vetting. any continued support for them would be strongly conditioned upon their continued could

conduct. -- good conduct. we can get that for you. >> you've talked about your responsibility to support these opposition fighters. what is your ability to control them once they go back in other than pulling support? secretary ashton carter: one way of addressing that is through their training and through the missions they are given and where they are located. in many cases, as part of the vetting process, there is a dialogue that goes on about their motivation in the first place. many are motivated by the fact that isil has taken over and

mistreated the places from which they came. so their commitment is something we have a very good idea of. >> will the u.s. be given them specific missions? exercising technical control? secretary ashton carter: i would put it a little bit differently than that. that is part of the dialogue. these are people who come from a particular place, so they have commitments to the country of syria as a whole and a commitment to the part of the country from which they have come. and so forth. they clearly have a voice and where they are going to fight. at least initially and first and then as part of the dialogue that will go on. we first have to get them trained.

>> there has been quite a bit of propaganda from isil taking credit for the attack in texas and threatening future attacks against the u.s. homeland. can you help americans understand how serious that threat is? secretary ashton carter: we have to take it seriously. our law enforcement and homeland security folks have been saying the same. again, our understanding from the investigations going on was that these were inspired by isil , not directed by isil. still, it is concerning that there are individuals like this who draw their inspiration from isil.

it is yet another reason why the defeat of isil is important. it is important in syria important in iraq and has its larger meaning because of the ability of a movement like this to inspire a certain sort of person. >> thank you. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2015] >> an update from capitol hill. the senate is still voting

technically, but they have passed the iranian nuclear agreement, that bill that requires the obama administration to submit any nuclear agreement with iran to congress for its review. it needed a simple majority to pass. the vote still technically going on but it is 97-1. that agreement will pass in the u.s. senate. you can watch coverage on c-span2. boaters and the u.k. make their parliamentary choices today -- a voters make their parliamentary choices today. we will simulcast itv's election night coverage. recent polls suggesting that no one party will win a majority in the outcome of the election which is too close to call.

coverage getting underway at 4:55 eastern time here on c-span. we got a preview on today's "washington journal." is one of the closest in decades. wh guest: hi, greta, it is great to be with you. it is fascinating and riveting from afar. another election in 2016, a presidential election or the primaries anyway. i think it is so close because the british public has lost confidence in the major political parties, the conservative already on the right, and the labour party on the left. we have had five years of conservative, liberal democrats coalition governments, and i think if you can poll to vote for none of the above, then they would probably win today, but what the election polls are

showing is an extraordinarily tight contest with the conservatives on about 34% labour on about 34% as well, and then going down the list, the united independence party, this new movement, anti-immigration so similar to your tea party here in some ways. so similar to your tea party here in some ways. you got the you got the liberal democrats you've got the scottish nationalist party, which could be a huge factor because it looks like they are displacing the labour party in a traditional heartland of labor in scotland. what we are almost certainly going to see tomorrow is that no party will reach the magic number of -- there is actually some dispute over what the magic number is, but 323 seats in the 650-seat chamber to get an absolute majority. you have a lot of horse trading,

david cameron, and certain party leaders trying to form a new coalition government or minority government, and you will have ed miliband, the labour leader, the opposition leader, trying to do the same, trying to cobble together some sort of arrangement, which would form a government. anybody who says they know what will happen is not telling the truth. host: toby, what role could the scottish nationalist party play,alking about, if there is no clear majority? they will have to try to build a coalition here. what role could the scottish nationalist party play? guest: the scottish nationalist party is fascinating. they are only 5%. of course they are outstanding in scotland. but in the u.k., they could get 48 seats. if you look at the way that works, the u.k. independence party is about 12%, and they are likely to get to seats or three

seats, so the scottish national party are very much a socialist, left of center party, as is the labour party, so they will be a sort of natural alliance, if you like, between labour and the scottish nationalist party however, the labour party that it will not go into the coalition would be scottish nationalists, so what we made get is some kind of loose arrangements whether the scottish national party will prop up a labour party that has finished second and has got only the second highest number of seats behind the tories. you have the labour party seats and the scottish national party seats, that could result in some kind of government. very uncertain and very vulnerable to a vote with no confidence or the scottish national party. it could be very, very unstable if you can get those two parties and partnership.

host: toby harnden, how long does this take to straighten out? guest: [laughs] well, we don't know. last time in 2010, it took about two days, and you had a parallel sector, horse trading going on you have the labour party talking to liberal democrats you had the conservative party talking to conservative democrats. he had the scottish national party sort of in the mix as well. in the end, it was the tories, the labour party, and the liberal democrats with a shared agenda, a relatively stable arrangement, which had indeed lasted five years. this time, it looks like it will be much less tenuous, or much more tenuous. it could take many, many days. the big date on the calendar is may 27 when the queen's speech which is when the new government agenda is made out.

but some people are saying we could even get a situation where that speech or the queen is asked to make a speech in which you have a person in miliband or david cameron trying to become the new prime minister, but not sure whether the queen's speech will be passed in the house of commons. host: toby harnden, the washington bureau chief of the "sunday times," thank you. guest: appreciate it. >> live simulcast of itv starts at 4:55 eastern time. this mother's day, c-span presents the children and grandchildren of america's first families, paying tribute to first ladyies. again, that is this sunday

mother's day starting at noon eastern here on c-span. >> here is a look at our featured programs for this weekend on the c-span networks. saturday morning at 10:00, live from greenville, south carolina for the gop freedom summit. speakers include scott walker, ted cruz, carly fiorina and marco rubio. on mother's day, members of america's first families remember first ladies, featuring the daughters of jackie kennedy lady bird johnson, betty ford and laura bush. on c-span two on afterwards john krakauer on sexual assaults in the u.s. sunday evening at 10:00, the first female four-star general talks about her life in the military career. on c-span3, saturday afternoon

at 4:45 eastern on oral histories, remembering the liberation of nazi concentration camps with an interview of kurt klein. he lost his parents at auschwitz and questioned hitler's personal driver. the 70th anniversary of the end of world war ii in europe with dignitaries and veterans commemorating the event at the world war ii memorial in washington d.c. get our complete schedule at www.c-span.org. >> a three-judge panel from the second circuit court of appeals in the works of the unanimously ruled today that the nsa program collecting millions of phone records is not authorized by the patriot act and exceeds the scope of what congress authorized in the law. the court did not address the constitutionality of the program or whether people's privacy rights are being violated. the patriot act was passed by

congress and signed into law by president george w. bush october 2001 in the aftermath of the 9/11 terrorist attacks. next, the world arguments in the case that was rolled out today. from last september. [no audio] >> please be seated, everyone. good morning again.

we are about to proceed with the case of aclu versus clapper. there is sufficient interest that it is being broadcast. i don't know who will watch it if anyone. [laughter] to the extent that it will be watched by people who are not familiar with appellate arguments, i want to say one thing about what is not likely to be seen. this case is about the bulk data collection program operated by the nsa. what viewers are about to see is not a debate on the merits of that program, whether it is a good thing or a bad thing.

as a matter of substance, the issues before us start with the legal issues about whether this court has the georgia student -- jurisprudence to resolve the questions raised by the plaintiffs. and also to continue the questions raised by the plaintiffs about the program. about whether it has been authorized or forbidden by specific statutory provisions of congress. and by provisions of the constitution of the united states. it is not a debate as a matter of form. it will involve lawyers making arguments. they will likely be interrupted. that is not because we don't want them to make their case in an uninterrupted manner. they have already had the opportunity to present in writing their positions in an uninterrupted manner. it is for us to ask questions of the lawyers to clarify their

points. the implications of those points to perhaps raise issues that have not been fully addressed. the obligation to not just say their best points, but to respond to the best points on the other side. it is not going to be a free ranging debate where everybody gets to say everything they want about these programs. it will be much more limited than that. i don't know whether that was useful or not. it is not useful to any of the lawyers here who already know what's going to happen. you may proceed. >> thank you your honor.

every day the nsa collects records -- >> i'm going to interrupt you because i have two questions. i find it difficult to approach this argument without understanding that at the outset. as i read them, and i did read them, and some cases more than once, it is not clear to me whether e-mails are covered by this program or not. maybe that is a big secret. i don't know sitting here whether i can get a hold of all my mistresses and say let's distributed by e-mail because the government is watching. [laughter] i assume i wife will not watch this program. [laughter] i am being terribly serious about the question in so far as we are allowed to know. our e-mails covered and to what extent?

that is the first question. >> e-mails are not covered by this program for this program solely concerns records of phone calls made by americans every day. it collects the same information for e-mails. that is not what this case concerns. >> we cannot take into account whether somebody can say that can say to -- can say to a co-conspirator of some sort, let's just use e-mails third i don't use the -- e-mails. i don't use the phone anymore. >> i think the court can take that into account when it considers the breath of the government's interpretation. i think the court can take it into account when it considers the breath of the interpretation of smith versus jurisprudence.

>> your contention is the government is correct here. the second order could be remade with respect to everybody's records. >> that is exactly right. it would not just be phone records it would be permitted not under just section 213 every subpoena statute, and not in the context of terrorism investigations but in the context of investigations that are essentially any crime involving more than one person. >> if the data remains in the possession of the telephone companies and the government soft to get the same information that they're basically gathering using the queries against the database that the government has

collected, would that be constitutional? mr. abdo: >> the government has that authority now. we don't challenge the government's ability to issue targeted demands for records from the telephone companies or for many other companies. >> when you say targeted, are you saying that because the government have a number that the fbi or whatever organizations as we have this number, we want the phone companies to apply this number across the data sets, assuming that it is the same data sets that the government currently has. i am asking, is it constitutional or unconstitutional? mr. abdo: it would be constitutional for the government to issue a targeted demand. what is unconstitutional are several things. first, the government is collecting in bulk everything at the outset in a way that has

never been permitted. second, once the government has that information our principal complaint is about the government's collection of that information. >> that raises my second question. there appears -- this case was brought less than a week after disclosure of the program. they mention three things. one, the number of the degrees of separation.

three, having to get the vice accords approval before entering a query. that is my understanding. it has been done already. the third thing, this notion they will go back to congress and say that we don't want to do this anymore, we want to keep all this information in the hands of the service providers. and being able to query them in one way or another. i gather that is not a simple thing to do. we will take this out of the hands of the government and out of the -- the data will no longer be sitting in the hands of the government. it will be put back where it started and will be clarity from there. if that was done, with that essentially end the controversy here? there is a technical question as

to what your standing might be if they did that. i would have thought that if they did what the president said in march they were going to do you would have embraced it and said that is why we started this. i apologize, but i think the senator declared victory and withdraw. >> we would love if the government ended the ball collection of phone records. if the government did that, and purged records from the databases they have, that would resolve everything put into place at issue by our injunction motion. that is not the current state of affairs. i think it would be unwise to expect congress or the next to

act in that way. there are two bills, one before the house and the senate, they have differences. they have not reconciled their differences. >> i understand. >> i should say that the injuries are ongoing on a daily basis. we are entitled to a remedy today to the violations they continue and are ongoing. if i may, i will return where i was going to begin we have two positions under section 215. >> the government insists that we don't have jurisdiction. that is because congress has concluded implicitly what would normally be our jurisdiction.

>> that is right. i will address that. i think the government is wrong. the apa creates a strong presumption for review. that presumption can only be overcome if there is clear and convincing evidence that congress intended to preclude these plans. there simply is not the evidence. the government points to section 2712. the statute by those terms are exclusive only at the claim within the purview. section 215 is not within the purview of the section of 2712 of the communications act. there are related subchapters. it applies as a textual matter to all claims here.

the government also argues that section 215 itself explicitly precludes our claims. congress providing for a cause of action does not in of of itself deprive other plaintiffs. if that were the case, that would not be much of a presumption at all. instead it turns to the question of intent. on that score, i think the legislative record is clear. congress enacted the review procedures of 215 after a district in the southern district of you new york had invalidated it because it failed to provide for a clear avenue for review for recipients of national security letters. congress fix that problem in 2006. it also provided a review for

section of 215 orders. >> perhaps the preside or would make clear how were going to deal. >> i think this matter will go on as long as we argue. >> i should warn you that i went on the c-span website to find out what c-span stands for -- they, unlike what it says here, they set aside two hours for this broadcast. [applause] >>we will go on at greater length. >> thank you. i think what i was saying is that the legislative history of section 215 makes clear that the recipients did not decide it at all about the target of 215 orders.

in that context, where the legislative intent cannot be concerned, the default rule of the apa governs and provides for injunctive relief. >> with respect to the government argument further, nobody would have anticipated this. that records were demanded. the intent wasn't people in your position would never even know that this is going on. does that mean that congress didn't expect this type of lawsuit? >> this is a point on which we disagree with the government. congress provided for the

possibility that targeted 215 orders would learn about the orders. it is about recipients you have the right to challenge the gag orders impose on their ability to tell the customers about the orders. i think congress contemplated that targets would learn. it did not then go on to preclude those claims. i think that congress simply had no view on the matter. i'm talking about the gag order imposed. those recipients can challenge is gag order positions. >> than a person whose records were at issue would learn that. >> that is exactly right. there is something bizarre about the government's arguments. not even the government contends that the constitutional claims are precluded. the only consequence of the

government's claim is that the narrow ground for decision would not be available to it. that is a strange intent to attribute to congress. >> this is assuming that congress a that form at the time. i am not sure that that would be the case. when you are talking about the statute. congress did address the issue of the recipient. is there anything to suggest that congress at the time dealing with the recep rent thought about others possible having the ability to challenge the section? >> i don't think there is anything in the legislative history.

i think it's important to point out that when congress amended section 215 two review procedures, the government's necessity of those procedures, we think is a statutory matter that there is already an avenue for initial review. that was their position in the litigation over national security. that was also the position in congress. there is not clarification of the law necessary.

it clarifies the judicial review that the government had artie told the district court was available to recipients of these orders. congress is addressing that narrow problem of it being potentially unconstitutional for congress not to have provided judicial review for recipients. >> with respect to the secrecy point congress did not imagine this would happen, they should have foreseen this possibility and some contentious circumstances. if they do not think about this at all, then you win. we are not looking for evidence of a legislative intent to create judicial review. that is already there under the apa. unless there is evidence of congressional intent of preclude judicial review. >> that is correct. the way that your honor articulated is the way that the supreme court articulated it time and again.

it is to show by clear and convincing evidence -- not to demonstrate that congress intended to create that. if i may, i will move on to the merits of our statutory plan. our first claim is that section 215 does not apply. when they enacted 215 and 2001 it added a provision to the stored communications act prohibiting the government from requiring phone records. it created exceptions to that prohibition, but section 215 is not among the list of exceptions. that is critical. under settled principles of statutory construction, it supersedes the authority under section 215. in the past, the government has

agreed with that principle. when they were confronted by a senator might yield to two section -- in section 215 that the privacy protections would not yield. that they trumped the general authority of section 215. they agreed with a related proposition that the exceptions in the stored communications act are exclusive. it is not for the government to infer definite -- additional sections. the rule of privacy established by the stored communications act. the memo in 2009 to the fbi concerning the national security letter statute. >> if we agreed with you about this proposition, about the stored communications act, that unless their program -- this could be something of a p or victory for you. one of your arguments about the relevance issue is that if we interpret relevance as the

government wants to do, then the government could get the same kind of records out of fbi administrative subpoenas, for example. that kind of request is covered. >> not exactly. the stored communications act limits the top of records the government can acquire. it can only acquire the originating phone number, the receiving phone number, the information about the duration of the call under the stored communications act, including under the administrative section , but they cannot acquire things like the divisive number making the phone call. they cannot acquire the trunk identifier, which is something they acquired on the verizon order here.

i think that the defect in their argument, it could use it any run-of-the-mill subpoena statute. that is to a core all of the same records in bulk. it is notable that none of those other statutes include the source of protections of 215. they could rely on the national security letter statute to acquire the same records in balk without the minimization procedures of saving their a collection from invalidation. >> maybe they will concede that that will be unconstitutional because it is only the procedures in the court order procedures and so on of section 215 and their few defeat your constitutional obligations to what they say about that. >> i find a little surprising.

[laughter] there is one other argument that i will quickly mention. that is the grit of our statutory claim. that argument is that the core problem with the government's theory of section 215 as that it labels everything relevant. >> i don't mean to interrupt your statement. i think we know what that argument is. if everything is classified, nothing is classified. if everything is relevant, then relevance drops out. >> that is right. >> the more technical question is -- the statute says that the government can apply one order

requirements. the question of relevance does not come there in terms of the authorization. it comes later when it requires that the application to the pfizer court include a statement of fact showing there are reasonable grounds relevant to an authorized investigation. it would be much easier for me if the authorization said an order requiring the production of relevant, tangible things rather than putting it down later in the papers of the fisa court. the reason i find this troubling or confusing is that it is after all the administrative procedure act.

presumably, the administrative procedure act -- what we are talking about -- is the fbi and the nsa. i'm wondering whether by putting this down, the question of relevance, in terms of what miss -- must be sewn to the pfizer court, were not being asked not being asked to review what the fbi and the nsa did, but were being asked to review what the pfizer court did. i don't know if the question make sense, but when you bring in relevance, i understand that

everything is relevant. are we -- if we say that that is wrong, that everything is relevant, the pfizer court was wrong. are we didn't reviewing what an administrative agency has done. or are we reviewing what the court has done. do we have the power to review what the fisa has done. >> we're asking for the former not the latter. i will note that. there are any number of surveillance statutes structured in that way. they set up the limitations.

i don't think that is a novelty of section 215. it is the same in section 1881a . >> i am familiar with it. >> not as familiar with it as the supreme court thought we should have been. [laughter] >> to get to your questions, we are challenging the government's daily collection of our records and we are not asking this court to overturn it. we are asking for an injunction against continued collection by the government. that would be put in place

without saying anything at all. i think that's what our challenges. it is understood as a challenge under the apa. even if you characterize our challenge as one, i don't think that would change matters. the government itself notice that it is true that a district court action, the physical order. the plaintiffs would be entitled to receive an injunction against ongoing and even legal agency conduct. >> what happens if -- there are now two district courts. they have come to opposite conclusions.

they did it on the constitutional basis. supposing we were two of firm -- where would that leave us? >> they would ask the supreme court to resolve the conflict. >> it would have to be the supreme court? >> i think so. i think they would permit a state. >> should we permit a stay? i guess are going to get to this later. we agree with you that this other litigation that is going

on, we want the supreme court -- supposing where wrong and somebody blows of a subway train -- does it make sense for us to say here are our views and wait for the d c circuit to speak. before actually making an order, an injunction? >> i think it would be relevant. we have not taken a position on that. >> that would be within our power to do? >>yes. >> i will now proceed to the constitution.

our claim under the fourth amendment is quite straightforward. the government will collection of our bulk records intrudes on a resort location of privacy. this was decided in 1979 in a supreme court decision. >> let's suppose that we agree that quantity is quality here. that this program is different. isn't there still quite a bit to the government's argument that even in this context, there is not much of an expectation of privacy in these records. for example, if you all the things the government could find out from these records the government could if it chose from this metadata could determine that someone was

hiv-positive or summary had an abortion. could not verizon find out those things? could they not release the record it has and make the same claim? can the user for commercial purposes, not remotely important to anyone as the government whose 60 uses data. just because they might be able to make money selling a list of people that verizon thinks has recently developed an unwanted pregnancy. or to an antiabortion group, send information on those people.

verizon can do that, could night? >>i don't think our contract provides for unregulated access to our call records. in fact, the only access that verizon has our records is likely through computerized collection of those records. it is a bit ironic that the government claims that the computerized collection of those records extinguishes an expectation of privacy, but it's collection of those records -- >> do you know something about your contract with verizon that i don't know about mine? is there something in there that says they can use the call records for anything? >>i don't know what they can or can't do with the records. there are things that regulate what telik can make nations companies can do with records. >> i take it they could not say to abortion providers or organizations, here is all or

records it, search them and go see if you can find people who need your services. the point is verizon has all this information. they have the capacity if they chose. >> they may very well have the computer capacity. i don't know if they have the authority. i think it depends on what the congressional statutes relating customer proprietary network information. they include our call records. i don't know the exact contours. you are correct. i think this is another way of

saying the third party records are not the question. i don't think there has ever been an on off switch as you are saying he saying. nonetheless, the person is recognized to have an expectation of privacy. all of our contents of our phone calls are protected by the fourth amendment. they are protected by federal statutes. verizon's ability to listen to the content of our privacy. that same goes for our e-mail. servers of third parties. i think the courts are starting to grapple with that question. the spite the possibility that

google might read your e-mail because the information is on a third-party server, that customers have an expectation of privacy. >> there are many ironies in this case. maybe it makes no legal or constitutional sense, but it is a little strange that once mr. snowden disclosed the existence of this program, we no longer have a reasonable expectation of privacy. we don't have any privacy. i would like you -- i suspect

you can respond because you have thought about it a lot longer than i have. i wish you would focus as you do this talk to me about reasonableness. for this case, the word reasonable is actually in the fourth amendment. talk to me about how we figure out what is reasonable and what is not reasonable. >> if i may, i will address your first question. the supreme court has recognized that expectations of privacy can be defined if congress chooses through a statute that could permit will collection. it be the end by analyzing an a normative question, whether people are reasonable and expecting privacy. i think you see that question

being addressed. there are several cases that recognize that even if there is the capacity for greater intrusion into our personal privacy by companies and the government given the digitization of information, that does not alter the relationship between the citizens of this country and the government. >> is there any element related to the constitutional issue? suppose this case came to us. after congress had engaged in a full-scale debate as to whether to offer verizon explicitly exactly this program. and they did explicitly authorize this.

i imagine you could hypothesize they did this before an election and after an election in which the saying congressmen who voted for this return to office. with that have made any difference to our estimation of what is a reasonable expectation of privacy? >>i think it would be relevant. the supreme court has noted that the circularity of the test is not to be turned into a one-way ratchet for government intrusion into privacy. >> does that mean if there were some bars is a statutory question whether this program was authorized, whether we found this was an executive branch program that was not authorized by any explicit legislation of congress.

as part of addressing whether this was constitutional and not, that such an unauthorized would stand on different and shakier constitutional ground. >> i see your suggestion. that could be an element of the expectation of a right -- privacy. >> i think the current debate accepts -- suggests the opposite. the country is not comfortable with bulk collection. the country has recognized that will collection creates a risk of abuse. i think that is a good segue to get us to act to your question of how to analyze

reasonableness. the fact that the government search as sufficient for us to for vale on the fourth amendment. >> my first question is does this allow for the numbers dialed. people did not have an expectation of privacy in that. are you saying that because the governments collection i think that the supreme court would have understood that to stand for something very different. they would have found that unconstitutional. i still think it would be unconstitutional. it is more intrusive here for a number of different reasons. >> how do we go about looking at this stuff and worrying about this? without any fact-finding at all. i keep wondering whether were having in camera proceedings here.

how without any fact-finding at all can we begin to figure out why a district court -- how can we begin to know whether this is reasonable or not. the way the world is today because it's different. how can we without fact-finding come up with some reasonable determination? >>i don't think that is necessary. even the president concedes that the government can accomplish its interest without will collection. >> he sent his lawyers here to say that you should lose. >> he is a awaiting a decision. >> evidently, the president thinks it is necessary to continue operating this program and that it is constitutional to do so. the representatives of the government are here. they are here to say that they think that this is a reasonable thing for the government.

>> my view is not that the president has conceded the unconstitutionality, but the government has conceded that there are alternatives that are significantly less intrusive. that does sound like the rational way to proceed. suppose, because of legislative blocks, that politically it won't fly. we are stuck with what we've got. our country is stuck with saying this is unreasonable or a violation of the fourth amendment, or we conclude that it is reasonable under the circumstances, given the nature of the threat and what has to be done to control that threat. how do we do that based on breeze? >>i don't think the court needs to get a reasonable response for the government is entitled to demonstrate that the warrant and probable cause of the fourth amendment are implacable. it cannot -- there is record evidence, national consensus that the government can accomplish its interest through individualized applications. >> this alternative procedure that we are envisioning is one where verizon keeps these records -- if you had a reasonable suspicion that the government once to look at one person's phone records, they do that all the time by issuing a grand jury subpoena, or a national security letter without probable cause and a warrant.

i'm wondering whether, without any that finding -- fact-finding can would begin to know whether this is reasonable or not? how can i begin to know whether we are really -- reeling from the way the world was. how can we, without fact-finding, come up with some reasonable determination? >> i don't think fact-finding is necessary. even the president now concedes that the government can

accomplish the interest without bulk collection. i think he is awaiting legislative solution. >> for the moment, the president thinks it is necessary to continue operating this program. he might prefer some other way of doing it but the representatives of the government are here to say they think this is presumably essential but at least that it is a reasonable thing for the government to be doing. >> rv was not the president has conceded the unconstitutionality of the statute but that the government has conceded there are alternative, less alternative means for the government to accomplish -- >> one would hope -- that does

sound like the rational way to proceed. suppose, because of legislative blocks, that politically it won't fly. we are stuck with what we've got. our country is stuck with saying this is unreasonable or a violation of the fourth amendment, or we conclude that it is reasonable under the circumstances, given the nature of the threat and what has to be done to control that threat. how do we do that based on breeze? >>i don't think the court needs to get a reasonable response for the government is entitled to

demonstrate that the warrant and probable cause of the fourth amendment are implacable. it cannot -- there is record evidence, national consensus that the government can accomplish its interest through individualized applications. >> this alternative procedure that we are envisioning is one where verizon keeps these records -- if you had a reasonable suspicion that the government wants to look at one person's phone records, they do that all the time by issuing a grand jury subpoena, or a national security letter without probable cause and a warrant.

that is not a fourth amendment event or, if it is, it is a reasonable one. >> that is right. the government is trying to engage in bulk collection. the question becomes, for person is -- for purposes of special needs, whether the government can accomplish its interest or -- through targeted demands. if it could, then it is not entitled to forgo the requirements of the constitution. we don't think that it can used targeted demands to engage in bulk collection, but the government has conceded that use -- could use targeted demands to achieve its interest here. >> isn't what you're saying, the free floating reasonableness inquiries? it is an inquiry into whether what they are doing now in terms of bulk election -- collection

is a reasonable paying to do or an unreasonable thing to do? i don't know where the requirement comes into play. >> i suppose that the question of practicability collapses with the question of reasonableness. under the special need doctrine, the first question, dispensing with individual suspicion is practical or not. here, we do not think it is. it is impractical for the government to acquire these records in this fashion, we would still say it is unreasonable. is the most intrusive means the government can use to a ccomplish very narrow interests. that is always been held to be unreasonable. i will emphasize it again.

even the president has conceded that the government's interest in be accomplished in narrow means. it is the oversight board, the president, concluding that will collection is not necessary. it is a conclusion of a group. how the government could are how the government could re-create this program in a targeted way if you're on or disagrees i still think it goes to the question of practicability. >> once you get to the point of saying assembly emphasize the point you have artie made, we have artie gotten to the end. thank you. it will privacy more than two minutes at the rate we are

going. >> may please the court, stewart for the government. it is been approved by all three branches of the government. pursuant to orders of the foreign intelligence surveillance court, under a provision of fisa, we authorize about this very program. >> you are starting by saying that it has been approved by all three branches of government. you do not want us to address the question of whether it has beenauthorized by one of them. >> if you are referring to the statutory argument, yes. we think that was a choice that they made and specifying a very detailed provision for applications and approval of

those applications. then, with a detailed review scheme following that. allowing for a challenge to providers. ultimately to the supreme court is appropriate. the supreme court is unclear as to why congress has established a specified form for limited parties for judicial review, then that provision of process -- >>you are going on to adjust specific facts about the judicial review program there. that suggested that it was reasonable to assume that congress had intended to preclude the review process. that they set out a variety of factors and look at those factors and concluded with

respect to that program that conclusion was a reasonable inference. i'm not sure those factors came out the same way here. you are saying the you depend heavily on the generalization, aren't you? it must have intended preclude judicial review. >> i don't think we are relying on a generalization. the court has made clear that in -- inquiry needs to be based on structure of the statutory at issue here. if you look at that structure, as is alluded to in the first party argument, there is no provision challenged by third-party orders. as a matter of course, the expectation was that the third parties would not know about that. >> is that enough to assume that congress intended to forbid review by a third-party if a

third-party did find out? i understand the idea if we are asking the congress contemplated this type of lawn suit, it specifically all the resist -- specifically authorized it. if there is a presumption that judicial review is available and the question is that congress specifically intend to prohibit judicial review to these particular people, they did not think these people would be around. >> i will give you a couple of answers. limiting the category of people who could challenge the orders was a deliberate choice reflected in the legislative history. i think other discussions, but certainly the amendment rejected proposed district court challenges to 215 orders.

a key provision not addressed in the first part of that argument was section 1861 f 2-d says that in order issued for sue and to the procedure shall remain in full effect unless it has been explicitly marked by or set aside pursuant to the procedures that are specified in the section. i think there is a clear textual statement by congress that when the orders are issued they should be only pursuant to the process that the congress has specified there. occlusion here makes perfect sense given the structure of the section. it provided for applications by the government to an article three court to establish the purpose to review foreign

intelligence applications and -- >>i guess one did. maybe we should ask them. i will ask you. why would a recipient ever challenge these orders? they have been given absolute immunity by any claims by their customers that they violated any rights by turning step over to the government in response to one of these requests. what stake do they have in saying to the government, take what you want. >> i think you are right. it may not be the right people to ask. one could imagine business reasons or practical reasons for making that decision. there has been such a challenge and that led to a reaffirmation of the production order on statutory and constitutional grounds. given that we have not just the situation where congress has

said certain challenges to agency action should be brought only to a particular forum but have required judicial approval before the private party is required to make the production to the government. the preclusion make sense. the plaintiffs argument requires a collateral challenge. gleick that is an interesting and troubling point. exactly such a challenge is apparently authorized. the government's position appears to be that we can collaterally review if that is the way you want to look at it the fiscal order to test its consistency with the constitution but not to test whether it is consistent with section 215. >> that is the consequence of

the supreme court. as compared to what the court has said in webster versus bill -- doe. it is a higher standard. >> is there any role to the doctrine of constitutional avoidance here? you are asking us, you are requiring us to decide a question of constitutional law to decide whether perhaps the government is precluded from doing this sort of thing even if congress wants it done or on the other hand to accept the argument that says no one has any constitutional privacy rights in anything anymore. surely the same argument you are

making as a matter of constitutional law and the relevance argument you make under the statute look like -- statute -- >> there are elements of the same statute. smith against maryland itself was limited to non-congress records and the court made a point of distinguishing the situation of content selection. there are other cases including miller versus miller regarding financial records that dealt with other types of information. i think the key under the fourth amendment and the relevance test under the statute in both lines of cases, the court has made clear the totality of the circumstances. what is relevant under the circumstances? >> isn't it at least as relevant

to you whether somebody you have some reasonable suspicion is engaged in a terrorist connection uses credit card last week to buy fertilizer as it is to find out whether he called a friend using a verizon cell phone or even to find out who his other colleagues are? there is clearly relevance and the sense you are talking about. if you had that guy and you wanted to get his precise hard records -- credit card records, is there any question? i don't understand why the same jump that says you can collect all of this stuff in advance essentially to make it easier, quicker to make the inquiry and find out what the connections

are, why does the same thing apply to credit cards? >> your honor is correct in seeking the types of information you are talking about, asking those questions a current by law enforcement every day. those are important elements, a set of tools the government has to pursue counterterrorism investigations. what we're talking about here, the proposition of relevance is however tied to the nature of the records that are being collected in bulk. putting the smith question aside about the fact those are actually -- we are talking about information provided by telecommunications companies from their own records they have created and maintained for their own business purposes. if you look at the government's

use of metadata, the record in this case made clear the purpose of the bulk election is to allow for the use of analytic tools and counterterrorism as investigations. the nature of the data can be searched through contact chaining to make connections and in furtherance of a particular type of investigation which are not ordinary criminal investigations looking back at who perpetrated a crime we know about. they are designed to be for looking. the purpose of this work is to detect and disrupt future plots before and attack can be made. >> thank records seem to me to

have the same sort of information. under miller, it appears there is an interest in the bank records. there may be certain moment nations but isn't it a similar thing? couldn't the government aggregate everybody's bank records and apply the same methodology? >> that is a question that would be relevant to the question of whether that have a collection is all the rest here. i think it is important that they have examined the type of data and have established it can be collected into a database and

queried in an interconnected way. other types of data, even if very valuable and used routinely may not have the same benefits from aggregation and querying based on standardized format. the answer here would not necessarily be the same. it is a question. >> is the idea that telephone records are uniquely kept in similar formats by all providers so that unlike bank records they are more susceptible to collections? if you had -- we have this guys phone number. he has engaged in something suspicious and we would like to know who he talked to.

i take it you can survey subpoena on his phone provider and scheduled the people he talks to. all that information is gettable. the problem is it is time-consuming. having it all on your server in your back room and doing whatever you need to do to translate the verizon records and the t-mobile records so that they are all compatible, is the point of what makes us beneficial. am i mistaken? >> you are correct. >> is it not true that every bank that you have got all the bank records, it would be the same thing. you could be -- go through

subpoena by subpoena. you can collect everything they you want to know about everything and collected all about one big cloud. we have internal to the government about what you will look at and when. i do not understand an argument about what is so special about telephone records that makes them so valuable, so uniquely interactive or whatever, that same argument you are making do es not apply to every record in the hand of a third-party business entity of every american everything. >> i would like to come back to the point of minimization's. the question of relevance and i think you're correct in your general description as reflected in the declarations about the purpose of the collection of the data. and the advantage of doing it in advance is that it allows for standardization where that is

necessary, although i do think phone records by their nature tend to be and are quite standardized. and to allow for rapid identification of connections between now and and unknown -- known and on known terrorists. that is the purpose of the program as reflected in the record and the district court opinion. the purpose is to be able to identify from a known person with some connection to a permissibly targeted terrorist organization who that person is in contact with and might be in contact with in the united states. the analytical tools to make those connections and to identify them rapidly are at the core of this particular program. >> rapidly has to be what it is

about. some of us sitting here have done this in criminal investigations and know how exactly important it is and it is done every day in the week . there are a lot of burdens. in doing it case-by-case. but it could be done by targeted subpoenas. the efficiency, convenience, and speed of making these inquiries. >> whether it is sufficiently timely, that is an element. other aspects of our reflected in the record in this conclusion are the need for examination across carriers so you are following the links where people are communicating using different carriers and to build the historical repository for some time.

going in, the government does not know which of the metadata might reveal an important connection to a known terrorist and so if you started only when you identify that person, that information would not be as valuable. >> the question whether the phone company keeps all these records, although i think there was a suggestion in terms of what the president has said. that that problem could be solved by requiring the phone companies to keep that information indefinitely. i want to get back to this question of constitutional avoidance. you're asking us to decide something that is extraordinarily sweeping.

without inquiring as to whether this could be allowed under the constitution. without addressing whether the congress has ever really thought about this, disturbing and putting aside the issue of preclusion. it is hard to imagine that somebody who looked at a law that says you can have an order that will get anything that you can get with a grand jury subpoena. imagine that means you could get stuff that nobody ever mentions getting with a grand jury subpoena. it could have been done. i don't know. it is hard to imagine that that rather innocuous language, they make a showing of relevance to an investigation means that all kinds of records as i read your brief, you are really saying that they are not relevant to an investigation right now, we just want to have them in case they become relevant so that we can

query. i don't think that congress bought that. not using this language in section 215. >> congress was briefed about the disciplinary program and it extended to section 215 twice about change. the details are reflected in our brief. this does reflect ratification in a way that the ordinary -- >> i wonder how the argument is when we are dealing with something that is public. therefore by ratifying it again and again, you are somehow reflecting the public will. i'm not sure that ratification carries as much baggage as you want it to. if you are talking until june of 2013 when people know what was going on. >> the reason it does here is

because we are not just talking about a presumption that if it is in the federal court somewhere congress was deemed to know about it. congress -- the committees were briefed over time about the details of the program. then in 2010, 2011, the executive branch provided a briefing paper to be made available to all members in 2010 before the ratification of senators in 2011. the details, not only the nature of the program but it was authorized and the statute had been met. some of the statements in the brief that they highlight from some of the senators were named -- the connection with the 2011

reauthorization where they called their attention to the section 215 and understanding how it was being used in conjunction with this program. the chairs made this material available and offered briefings more generally to all members and also repeated the need for members to understand how it was being used. this goes beyond the ordinary ratification. >> i want to make sure i understand whether you are arguing about preclusion or about whether relevance is appropriate, forgetting the constitution. >> arguing here that congress

understood section 215 to cover the program we are talking about. >> you are beyond preclusion. >> i also think that by extending 215 knowing what is going on -- >> that would be the kind of thing that would get typical ratification argument. congress would not ratify her analysis of the preclusion issue. this was before congress and -- in some judicial opinions. you are relying on the original history at the beginning but for the relevance argument you are running on the idea that congress reacts its sticks to -- reupped this statute.

the program that had been instituted, the fifth court had approved it. and there was this process of briefing in congress. i do not think -- you can tell me if it is. could you explain to me, if i am a member of congress, an ordinary member, not a member of some special committee. what exactly was i told, i don't mean what was in the class five brief. what was i told about you better go read this before i vote? what memo did i get? >> there were member -- memos

from the chairs to intelligence committees. they are in the joint complex. -- appendix. information had been provided by the executive ranch. it was important for the reauthorization of this authority. >> than it was up to me if i should go and read it. they were telling me i should. i think of things like what is -- legislative vetoes and other issues where the supreme court has emphasized that legislation gets done. the notion that their legislation has been accomplished because i had a letter from congress saying read this before you vote. let congress approve whatever was in that secret compartment. >> the further fact that we have

members who were pointing to this debate at the time. >> i do not think people got up on the floor and said you want to vote for this. we can't say what it is but you better go read it. >> the court has said, indicated that references and committee reports are sufficient. this is beyond what you would look at. >> i think so but justice scalia does not seem to. take it up with him someday. >> to your point about the current state of discussions of congress and the president's position. it is certainly correct thatthe wisdom of this program is the current subject of public debate and the debate within congress. there are multiple proposals that have been introduced and that process is working forward. the president has --

>> this is not a consideration that is entirely appropriate. if this court said we don't think this is authorized by congress, that would put it to them, to act on whether they think this is something that should be done or not. and they could take that vote and it would adjust these issues short of the constitution. if congress just devoted -- >> he is doing this, and we would say we are not doing this anymore, and are there would be nothing if they did the latter. if the former, the constitutional issue would still be around. that's some action is that it is -- what the president has said

is he supports achieving the goals without the government actually ingesting the blue metadata -- bulk metadata. allowing querying at the providers. he also noted for that approach to be workable with the speed and matter necessary legislation would be required. he thought it was important in his judgment, it was important to continue this capability. it has been reauthorized a second time with the next reup date.

>> september 12 is the day. so i just think i will clarify this conversation. if i might turn to questions about the statutory authorization i think i will turn to the fourth amendment if that makes sense. our position is that the courts didn't conclude that these records -- >> let me tell you the problem i have with that. it is not just that those are the old days. i don't think i am using the mosaic approach.

but, but doesn't there come a time, and this is what the plaintiffs are contending, doesn't there come a time when the old pen register that was used in smith versus maryland, where the amount of data that you have of that sort is so detailed and so extensive, that in fact it is a content that bulging action rather than not. the whole point of the instructions and i read it again this morning. the point was it is something that you already give out. it is given to a third party. it is not as though you are listening in which would be different. it is i think a question.

or a question is, whether the methods have become so sophisticated in analyzing this kind of data that this, unlike the pen register, in this case you are finding out about content. is there any umph to that idea? >> this is a factor in the public debate over the last years. i think a couple of points. we are talking about the same type of information that was -- >> to that point, what he was just saying they didn't go each

piece of metadata to metadata right? it was sort of a -- from a third-party, similar types of information but doesn't it require that or should require that determination is made based upon looking at each part of metadata and making a determination at that point. why should the court have to go through that exercise? >> i think that the record reflects if you are talking about the type of information, we are talking about the same type of call detail records that were issued in smith. the number call and number received, routing information, time and duration of the calls. we're are not talking about name and address.

>> the analysis that the pen register does not work anymore. >> the next few points i would make on that. the ability of metadata to reveal useful information to investigators and connections was known at the time of smith and in effect the power of the metadata was appointed and smith itself wiped it out, the court which concluded even though the expectation is phone companies are assembling the metadata if only because you know you get a list of all of your calls at the end of the month. that did not give rise to a protected fourth amendment interest. >> even that simple stuff that comes from the pen register is used in courtrooms in the u.s. every day of the week when attorneys get up and say this is

a chart of all the times that conspirator a talked to conspirator b. you should have heard what they -- you should infer what they are talking about. here is a record, we don't have the content of the phone call, but we have a record of the insider at goldman sachs talking to the trader. here is a record of the purchase of the stock in question right before the announcement of some new public information. what do you think they were talking about? that was proof that was a leak from the insider. metadata can reveal content.

>> the point about the technology that allows analysis leads me back to the point i wanted to make in response a moment ago. it is important not to lose sight of all of the other protections that are built around the acquisition and retention and use of the data under this program given the old nature of the production to the government in light of the technology. that is critical to understand. in addition to being non-content information about the telephone calls, data can only be queried for counterterrorism purposes and only if there is a reasonable suspicion that the selection turn or number or whatever is associated with ace -- a specified foreign terrorist.

>> none of the safeguards are built in to the legislation. >> i don't think that, 1861, subsection g requires minimization procedures. it was understood that this tool could be used to obtain data that could relate to a number of u.s. persons. the statute requires that the government proposed and then an element of the program be robust minimization procedures. they spelled out any orders of the fifth but that there would be rejections around the use and -- protections around the use and dissemination of the data. >> now that we have experience

with minimization procedures, it would be impossible to spell out something in legislation of this program were going to be authorized by congress explicitly that said what made sense and what did not. this just says that the attorney general has to specify. the record is basically just sign off on what the attorney general asks for. when i got more restricted, that was because of the effort to be more restrictive. they are operating in an expert complex. no one is there saying that these would be better procedures or what the constitution requires. the government looks and says there are things that you should tell us to do. those are approved. my concern about all of this is it is fine to say we have this data and we have rules for its use.

that is not the same thing as the government not having that information, sitting there. i do not know what mr. snowden could have done. instead of leaking the order he could have leaked the database to somebody. we do not know what happens when some inhabitant of the white house, this one or another one has a plumbers unit and decides to let them have access to the database. these are realistic concerns about letting the government have this massive body of data without anything -- i am sure your answer could be whoever makes the rules, they could be abused. if you told the government you can't do this, has a

technological capacity and if we haven't -- if we have a government that breaks the rules, they could get it anyway. we may not know if they are bad guys. but there are levels of restriction. it is one thing to have congress adopt a program and say this is what it is and we have considered what needs to be done to give protection and one that says we have determined what is relevant but they should be careful how they use it. and then we infer from that this massive program. >> the record on the enactment of section 215 and its extensions go past the argument that you articulated. the point in the national security area that clinical -- political branches being charged within a range, drawing the lines about what steps are

appropriate to accomplish national security needs something that the supreme court has articulated in the fourth amendment context. it urged that congress draw some of these lines, i am not sure that this was the phrase that was used, but because some of these questions are susceptible in legislative fact-finding, what trade-offs are appropriate to meet the needs of national security. similarly, in the mcquaid and cassidy cases, this court and evaluating types of antiterrorism or counterterrorism activities in connection with the subways and ferries noted that again the courts should be reluctant to rest away from the political branches. the choice is about how these judgments should be made. >> i would be cautious about making a constitutional

determination. >> that is why you should evaluate the program that we have. there is obviously a desire to ask questions about what might arise in other contexts. given that the supreme court has made clear that the reasonableness is in question. you do have smith in the same type of information that was in smith. if you are reaching constitutional issues we are to -- we urge a focus on the program. i was referring to your preclusion point. this is a question of the regime that congress established and the supreme court has recognized that where that is the case, where congress has not provided the cost of action the result may not be a statutory claim. the constitutional claim could the reached.

there was not a cause of action available. >> the only way we can achieve constitutional avoidance in this case is by ruling against you on something statutory. we are forced to get there anyhow. >> our position is -- >> or rule against you. >> i prefer you not rule against this, that is certainly true. we are left with the constitutional argument. whether you do it at the level of smith versus maryland. which we think has precedence and answers the question about whether it is a fourth amendment search to get the records from the telephone companies in this context. or if you go to the special

needs inquiry and look at the program as a whole, not just the initial collection but the act that the fisk has -- what would , be query and set out in the primary owners reporting that to -- primary orders, and reporting back to the fisk. this is reflected in the court's opinions which have been declassified. not just the court accepting whatever the government offered but making determinations according to its own statements that with these procedures the program strikes an appropriate balance with providing the capability that is -- >> that opposes more restrictions than the government sought at the time?

>> i didn't know the answer to -- i don't know the answer to that question. my point was that if you look at several of the recent opinions , which i have judge lynch: i am saying the procedures would be different which would be different in a district court or congress and terms of having a robust consideration, not just from what the government -- and whatever the judge can bring to bear in his or her own experience that to a real debate. mr. delery: what i think i can say is although these particular orders are not in the joint appendix here, among the declassified materials from the fisc our opinions reflecting reactions to compliance issues that were