You are on page 1of 33

Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 1 of 33 1

1 IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
2
- - - - - - - - - - - - - - - - - x
3 PROTECT DEMOCRACY PROJECT, INC.,
CA No: 1:17-cv-00842-CRC
4 Plaintiff,
Washington, D.C.
5 Friday, July 7, 2017
vs. 10:06 a.m.
6
U.S. DEPARTMENT OF DEFENSE, et al.
7
Defendants.
8 - - - - - - - - - - - - - - - - - x

9 ____________________________________________________________

10 TRANSCRIPT OF MOTION HEARING


HELD BEFORE THE HONORABLE CHRISTOPHER R. COOPER
11 UNITED STATES DISTRICT JUDGE
____________________________________________________________
12 APPEARANCES:

13 For the Plaintiff: ALLISON F. MURPHY, ESQ.


BENJAMIN LEON BERWICK, ESQ.
14 PROJECT DEMOCRACY PROJECT
2020 Pennsylvania Avenue, #163
15 Washington, DC 20006
(202) 599-0466
16 allison.murphy@protectdemocracy.org

17 For the Defendant: KATHRYN CELIA DAVIS, ESQ.


U.S. DEPARTMENT OF JUSTICE
18 Civil Division
Federal Programs Branch
19 20 Massachusetts Avenue, N.W.,
Washington, DC 20530
20 (202) 616-8298
Kathryn.C.Davis@usdoj.gov
21
Court Reporter: Lisa A. Moreira, RDR, CRR
22 Official Court Reporter
U.S. Courthouse, Room 6718
23 333 Constitution Avenue, NW
Washington, DC 20001
24 202-354-3187

25 Proceedings recorded by mechanical stenography; transcript


produced by computer-aided transcription
Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 2 of 33 2

1 P R O C E E D I N G S

2 THE COURTROOM DEPUTY: Your Honor, we're on the

3 record for Civil Case 17-842, Protect Democracy Project,

4 Incorporated vs. United States Department of Defense, et al.

5 Counsel, if you could please approach the lectern

6 and identify yourself for the record.

7 MS. MURPHY: Good morning, Your Honor; Allison

8 Murphy.

9 THE COURT: She can't pick you up until you speak

10 into the mic.

11 MS. MURPHY: Thank you. Good morning, Your Honor.

12 I'm Allison Murphy for the plaintiff, the Protect Democracy

13 Project.

14 THE COURT: Ms. Murphy, nice to meet you.

15 MS. DAVIS: Good morning, Your Honor; Kathryn

16 Davis on behalf of the defendants, and with me at counsel

17 table is my colleague, Marcia Berman.

18 THE COURT: Ms. Davis. Ms. Berman, how are you?

19 MS. BERMAN: I'm good.

20 THE COURT: Happy Friday.

21 I would like to keep this to about 40, 45 minutes

22 or so; so Ms. Murphy, why don't we start with you. It's

23 your motion.

24 My approach to FOIA cases tends to be as practical

25 as possible, and one of the things that I often advise FOIA


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 3 of 33 3

1 plaintiffs or counsel or suggest to FOIA plaintiffs is to

2 narrow or at least prioritize their requests to the extent

3 possible. I know there's a temptation to, you know, try to

4 anticipate all sorts of documents that may come in response,

5 but particularly in cases like this, where there's a request

6 for expedited processing, sometimes a prioritization or a

7 narrowing can move the ball forward.

8 Here you've obviously -- what you seem to want

9 most are documents related to the legal justification for

10 the operation at issue, but the request reads much more

11 broadly than that to encompass any document in the relevant

12 time frame related to the attack, which would obviously call

13 for, you know, many different categories of documents that

14 might not be directly related to what you purport to be

15 primarily interested in.

16 And so I guess the first question is, have you

17 thought about, you know, narrowing the request or at least

18 prioritizing; and what discussions, if any, have you all had

19 about that?

20 MS. MURPHY: Yes, Your Honor, and thank you for

21 the opportunity to meet and confer with opposing counsel.

22 We have taken your advice almost as you described just now.

23 THE COURT: Okay.

24 MS. MURPHY: We had several conversations this

25 week and have agreed with the government to narrow our


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 4 of 33 4

1 request to documents regarding the legal justification for

2 the military strikes in Syria. We have also reached

3 agreement with the government to limit the request to

4 documents that are final, as in documents in terms of their

5 last edited or last iteration of the back-and-forth, in

6 order to minimize their processing burden.

7 We have been able to, through that process, cut

8 out what we believe to be a large portion of documents that

9 would bring in FOIA exemptions such as those for national

10 security, such as those going to the operational details of

11 the strikes. We have had productive conversations with the

12 government, and I appreciate their flexibility.

13 What we have not been able to reach agreement on

14 is a timetable for determination in production. The

15 government has had our FOIA requests for three months at

16 this point. It is our understanding that the government is

17 still conducting searches and will not be able to make a

18 determination until mid-August with an as-yet-undetermined

19 estimate of volume or time.

20 That is too long to wait. The escalation in U.S.

21 military activities against the Syrian regime in the last

22 several months makes it increasingly likely that we will

23 suffer an irreparable harm by not being able to disseminate

24 information about the administration's legal basis for the

25 strikes if such military action escalates into serious


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 5 of 33 5

1 conflict before the public and Congress can debate doing so

2 in an informed way. Our request to the government was to

3 complete production by the time they anticipate making their

4 first production, which was August 15th.

5 THE COURT: So just to be clear, the relief you're

6 seeking is essentially a determination that DOD and the

7 Department of State erroneously denied your request for

8 expedited processing as well as an order commanding all of

9 those agencies to process and produce within a certain

10 amount of time.

11 MS. MURPHY: That's correct, Your Honor.

12 THE COURT: As to the latter category of relief,

13 how is that different than what you're asking for in your

14 complaint? And based on Judge Howell's opinion in the Daily

15 Caller case, aren't you essentially using a preliminary

16 injunction mechanism to reach the ultimate merits of the

17 dispute? What's your response to that?

18 MS. MURPHY: Your Honor, we believe the Daily

19 Caller is distinguishable first on the facts as well as

20 principally.

21 On the facts, the burden that the government

22 articulated there was actually factual in terms of the

23 arguments they raised in court where we have not seen that

24 sort of factual specification about the burdens thus far.

25 The burden there was extraordinary. It included tens of


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 6 of 33 6

1 thousands of documents that were produced. There is no

2 allegation that the volume here is anything close to that,

3 and we don't believe that it is.

4 Moreover, in evaluating the PI standard, one of

5 the elements for deciding it is deciding whether or not the

6 plaintiff has a substantial likelihood of success on the

7 merits, which we believe that we do.

8 Your Honor, we recognize that the standard for a

9 preliminary injunction is a well-settled standard. We don't

10 approach it lightly. After filing hundreds of FOIAs, this

11 is the one on which we are approaching the Court given that

12 the gravity of the issue here is regarding matters of war

13 and peace, and the factual circumstances over the last three

14 months make our case increasingly compelling. We believe

15 that our case here is very different from that in Daily

16 Caller.

17 THE COURT: Okay. Is there any precedent for the

18 proposition that not being able to participate in a debate

19 over a particular topic, even if it's a grave topic of

20 public concern, constitutes irreparable harm?

21 MS. MURPHY: Yes, Your Honor. Cases in this

22 district as well as others have recognized that not being

23 able to participate in a public debate as well as doing so

24 while congressional action is pending constitute an

25 irreparable harm. Both the EPIC 1 case as well as


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 7 of 33 7

1 Electronic Frontier Foundation and ACLU in this circuit have

2 had those holdings. We believe that here the on-the-record

3 information with respect to congressional bait has only

4 increased while a number of bills have been introduced.

5 Just last week Congress decided, on the House side, in

6 passing the defense authorization bill in a way to repeal

7 the only colorable legal domestic justification for the

8 administration's military actions in Syria. Unlike other

9 legislation, the House Defense Appropriations Bill is the

10 type of bill that will make it to the floor of the House and

11 will get voted on at some point.

12 So in addition to what we have put in the briefs,

13 congressional momentum has increased, and there's a very

14 real likelihood that, if military action escalates, we will

15 be deprived of an opportunity to participate in that public

16 debate as well as one before Congress.

17 THE COURT: Okay. You've mentioned in your brief

18 that there have been congressional requests for the bases

19 for the -- the legal justifications for the strikes. Have

20 those requests been responded to?

21 MS. MURPHY: As of this past Wednesday afternoon,

22 in speaking with the offices of Senator Kaine and

23 Congressman Schiff, those have not been responded to.

24 THE COURT: Okay. Let's hear from the government.

25 MS. MURPHY: Thank you, Your Honor.


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 8 of 33 8

1 THE COURT: Thank you.

2 MS. DAVIS: Good morning, Your Honor.

3 THE COURT: Good morning.

4 MS. DAVIS: As plaintiff's counsel explained, we

5 had the opportunity to meet and confer over this past week,

6 and we were able to fortunately narrow the scope of the FOIA

7 request and the sort of processing that's going to have to

8 be done to make a final determination.

9 With respect to the time period, this is what we

10 proposed to plaintiff's counsel. We proposed that the

11 agencies would provide at least an interim response by

12 August 15th with respect to documents that pertain to the

13 legal authority for the strikes. We also proposed that at

14 the same time we would file a status report with the Court

15 so that we could inform the Court as well as plaintiff --

16 THE COURT: I'm sorry, the interim response would

17 include what information specifically?

18 MS. DAVIS: Well, Your Honor, at this time the

19 entire universe of responsive documents has not been

20 defined, but some agencies have at least potentially

21 identified responsive documents, and the anticipation at

22 this point --

23 THE COURT: Are there OLC opinions?

24 MS. DAVIS: I don't have information with respect

25 to if there's a particular OLC opinion that has been


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 9 of 33 9

1 identified.

2 THE COURT: Isn't that the primary thing that the

3 plaintiffs seek and that they would be entitled to?

4 MS. DAVIS: I believe that they have in mind

5 particular documents that they would like, and we've

6 talked -- I've talked to plaintiff's counsel --

7 THE COURT: So in the month that the case has been

8 filed, the government doesn't know if there's a final OLC

9 opinion?

10 MS. DAVIS: Well, Your Honor, with respect to how

11 long it takes a particular request to be processed, it's not

12 simply a matter of looking at that request in isolation.

13 THE COURT: I understand that, but to my point --

14 to the point that I started with, if we're going to take a

15 practical approach to this, one would think that the

16 government might start with the most directly relevant

17 documents and components of DOJ.

18 MS. DAVIS: Yes, and the DOJ components who

19 granted expedited processing in this case have completed

20 initial searches. They've at least done a preliminary

21 review of responsive information, but there's still aspects

22 of the search that are outstanding; and so at this time we

23 don't have a completely defined universe of responsive

24 documents, and that makes it very difficult for defendants

25 to be in a position of, with any accuracy, estimating a


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 10 of 33 10

1 final response date.

2 But we are, as we've explained to plaintiff's

3 counsel, actively processing the request and have committed

4 to at least providing an interim response by that August

5 15th date, which is about five weeks from today.

6 But in addition to that, we can provide the Court

7 with a status report that can report on sort of where things

8 stand at that time and what the parties anticipate based on

9 the narrowing that we were able to achieve. And this was an

10 agreement that we came to just last night. Based on that

11 narrowing, we do believe that we would be in a position to

12 provide an estimate with respect to a final response date on

13 August 15th.

14 And so really, what the question is before the

15 Court today with respect to plaintiff's claim for a

16 preliminary injunction is whether they have shown that the

17 information that they're seeking is going to lose its value

18 somehow in the time period that we've estimated.

19 THE COURT: I'm sorry, before we get there, have

20 DOD and the Department of State persisted in their denial of

21 expedited processing? Do they still take the position that

22 expedited processing is -- that their regulations have not

23 been satisfied?

24 MS. DAVIS: Yes, Your Honor.

25 THE COURT: Okay. So let's talk about that first.


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 11 of 33 11

1 MS. DAVIS: Okay.

2 THE COURT: The request for an injunction against

3 the denial of expedited processing, I was somewhat confused

4 in the briefing as to what the basis was specifically for

5 the DOD and Department of State denials. What prong of the

6 regulations did they deem not to be satisfied?

7 MS. DAVIS: I believe, in looking at the responses

8 from the agencies, the DOD response was that the plaintiff

9 had not justified under their regulations a compelling need

10 standard, which has two prongs: the urgency to inform, and

11 the person being in the primary dissemination or primarily

12 involved in dissemination of information.

13 THE COURT: Okay. Let's take the first. I saw

14 that language, but there were no findings associated with

15 that conclusion. Is that fair?

16 MS. DAVIS: I believe what the finding was was

17 that the plaintiffs had not, in the record that was before

18 the agency at the time of the decision --

19 THE COURT: Okay.

20 MS. DAVIS: -- demonstrated that they were

21 entitled to expedited processing.

22 THE COURT: Okay. And why was that? Why didn't

23 they, in your view, demonstrate a compelling need based on

24 the urgency of the issues?

25 MS. DAVIS: Sure. Well, based on the record that


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 12 of 33 12

1 was before the agencies at the denial of the determination,

2 and that was simply plaintiff's FOIA request, the agencies

3 were applying their regulations, which according to DOD's

4 regulations, the urgency that a plaintiff must demonstrate

5 must be something more than just the public's right to know

6 generally what its government is doing.

7 THE COURT: Right. There must be something

8 looming. Breaking news, right?

9 MS. DAVIS: Sure, some sort of circumstance in

10 which the information that they're seeking is going to lose

11 its value unless it's quickly disseminated. And in

12 plaintiff's request, what they justified their requests as

13 were these, again, sort of conclusory and speculative claims

14 about the information, that public debate was expected to

15 intensify or that there was, I guess, a possibility that

16 further military action could occur.

17 THE COURT: That has come to pass, hasn't it?

18 MS. DAVIS: I would disagree with that, Your

19 Honor.

20 THE COURT: Why?

21 MS. DAVIS: The strikes that they have or the

22 military action that they have cited in their brief and

23 their argument that these show that it's not a speculative

24 claim are not related to the April 6th strikes. Those

25 subsequent strikes in May and June were conducted as part of


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 13 of 33 13

1 the Operation Inherent Resolve, which is a military campaign

2 that's being conducted by multinational coalition forces

3 against ISIS in Iraq and Syria. And if you look at the

4 press releases that they've cited in their brief that

5 describe what those attacks were, those attacks were taken

6 in response to threats that were being posed to U.S. forces

7 by pro-Syrian regime forces or matters in which the United

8 States acted in self-defense, and they are unrelated to the

9 April 6th strikes, which, as the President explained to

10 Congress, were taken in response to chemical weapons attacks

11 that were committed by the Syrian government.

12 And I think even if you take into account that,

13 you know, these strikes are somehow relevant to your

14 consideration today, I actually believe that relying on the

15 facts that these strikes have occurred undercuts their

16 argument that there's irreparable harm in this case because

17 what they've argued is if -- if, and I emphasize "if" --

18 military escalation continues, that there's going to be no

19 debate to contribute to; that the information will lose its

20 value; that the debate will be overcome by events and can't

21 be rolled back.

22 And despite the facts that these incidents have

23 happened, they're still claiming that there's value to this

24 information, and they're still seeking that information from

25 the government. And I think that that really shows why


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 14 of 33 14

1 their irreparable harm argument is so amorphous and

2 theoretical. It's not the type of certain and great harm

3 that is required by our case law to establish irreparable

4 harm.

5 THE COURT: But putting aside who the specific

6 target may be of a particular attack, whether it's a regime

7 aircraft or a pro-regime forces installation someplace, the

8 issue of our escalation of conflict, armed conflict in Syria

9 and our involvement in it, is certainly a matter of public

10 interest, and the legality of that escalation is central to

11 that public debate, is it not?

12 MS. DAVIS: Well, the subject of the FOIA

13 request --

14 THE COURT: And without information as to the

15 basis for the legality, how can the debate take place?

16 MS. DAVIS: Well, the subject of the FOIA request

17 is about the legal authority for the April 6th strikes.

18 THE COURT: Okay.

19 MS. DAVIS: And to the extent that they want to

20 rely on unrelated incidents, I'm not quite sure how that

21 shows that information is needed on an urgent basis to

22 inform the public debate which they're seeking or which

23 they're relating their request to.

24 With respect to whether there's just general

25 public interest in the government or the U.S.'s military


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 15 of 33 15

1 roll --

2 THE COURT: Didn't we recently shoot down a regime

3 aircraft?

4 MS. DAVIS: Yes, in the context of and related to

5 the Operation Inherent Resolve, and per the press releases

6 that they cited, yes, the U.S. military plane shot down a

7 Syrian government plane in an act of self-defense in

8 connection with that operation.

9 THE COURT: So --

10 MS. DAVIS: But with respect to just public

11 interest and whether that's sufficient to show irreparable

12 harm, the case law is pretty clear that the key factor is

13 not "Is this something that is a matter of public debate?"

14 If that were the standard, Your Honor, then there would be

15 really nothing to distinguish this particular case from any

16 other FOIA case in which the request originated in media

17 coverage.

18 And I think, Your Honor, you know, it's not too

19 far to go out on a limb to say that a lot of FOIA requests

20 originate because of a media story. In fact, the Department

21 of Justice has an expedited processing category just simply

22 for requests that are related to something that has received

23 widespread or extensive media coverage.

24 And so if that's the standard, then that means

25 that anybody who gets expedited processing under that


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 16 of 33 16

1 category would automatically be entitled to a preliminary

2 injunction, and that's simply contrary to the PI --

3 THE COURT: Well --

4 MS. DAVIS: -- standard.

5 THE COURT: -- their argument is that matters of

6 war are different, right? What's wrong with that argument?

7 Imminent or significantly possible engagement of U.S. forces

8 abroad is of an order of magnitude different than, you know,

9 the run-of-the-mill or even the prominent FOIA requests that

10 we see every day.

11 MS. DAVIS: Well, I think the case law points us

12 to look at the specific time period in which they believe

13 that the information will only be valuable, and in this

14 context they've pointed only to these unrelated strikes,

15 which, as I say, make it no less speculative that a military

16 action like the action that was taken on April 6th, which

17 is, again, contingent on the future actions of third

18 parties, will occur. And they've relied on this

19 congressional debate that they've cited to, which, if you

20 look at the proposed resolutions that they rely on, these

21 are not resolutions that deal with the military action that

22 was taken on April 6th, and they, in fact, relate to, again,

23 military force against ISIS or al-Qaeda or Taliban or just

24 simply resolutions that condemn the government of Syria's

25 use of chemical weapons.


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 17 of 33 17

1 And so if we're looking with the instructions of

2 the case law to find some certain and great injury, we're

3 looking at a time frame in which this information will no

4 longer be valuable, and they haven't shown that it will not

5 be valuable in, say, five weeks when the government has

6 offered to make an interim response or in the amount of time

7 it takes for the government to make a final response.

8 THE COURT: Well, isn't their argument that if

9 there's a serious escalation of hostilities next week, then

10 the horse is out of the barn, and it would be impossible to

11 turn the tide on that given the military priorities, and

12 that this debate could only affect that if it happens sooner

13 rather than later?

14 MS. DAVIS: Well, Your Honor, I would say that

15 there is enough information in the public domain for this

16 debate to start. While, you know, plaintiff has continued

17 to say that the public record is completely devoid of facts

18 about why the government conducted this April 6th strike,

19 it's not.

20 The President notified Congress on April 8th of

21 the reasons why he directed the strike, and he identified

22 the legal authority under which he acted, and, you know, he

23 explained that this was in response to the chemical weapons

24 attacks, and that he was acting in his constitutional

25 authority to conduct foreign relations and as Commander in


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 18 of 33 18

1 Chief. And while I understand that plaintiff is looking for

2 a more robust legal analysis than that, the fact remains

3 that --

4 THE COURT: Well, I think they're looking for

5 whether there is a rule or not in the first instance, not

6 necessarily -- or in addition to what it is, right?

7 MS. DAVIS: Sure. I mean, they're obviously

8 looking for more information, but that does not change the

9 fact that there's information already in the public domain

10 by which it can begin this debate now.

11 I think also, Your Honor, I'd like to point out

12 that even if, you know -- even if the information in the

13 public domain was not sufficient, the argument that they're

14 proposing today really is premised on the fact that

15 information is going to be released through the FOIA

16 process, and that ignores the fact that FOIA acknowledges

17 that agencies may properly withhold certain information that

18 meets the exemptions that are enumerated in the statute.

19 And so here, if we look at the very basis of the

20 request itself, there's -- and having talked to the agencies

21 generally about sort of what we know at this point, these

22 types of documents are going to implicate, for example,

23 classified national security information or various

24 privileges that would protect the documents from disclosure.

25 So there's no guarantee that, even if this Court


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 19 of 33 19

1 entered a preliminary injunction, some sort of information

2 or at least the information that they believe would be

3 valuable to the debate would be something that would be

4 produced. And in that context, it really makes it

5 insufficient, for this Court's purposes, to enter such an

6 extraordinary remedy as opposed to letting this play out as

7 it normally would.

8 THE COURT: Okay. What basis is there for me to

9 conclude that an interim response by August 15th with a

10 status report of some potential future date after that for

11 complete production is as soon as practicable under the

12 expedition regulations?

13 MS. DAVIS: Well, Your Honor, to speak --

14 THE COURT: I mean, you've represented that

15 obviously --

16 MS. DAVIS: Yes. Yes.

17 THE COURT: -- but usually I get a declaration.

18 Usually I get some estimate of the competing burdens within

19 the agency about the nature of where the documents are held,

20 about particulars concerning their sensitivity and the need

21 for multiple layers of review, et cetera. You know, that I

22 don't have.

23 MS. DAVIS: Correct.

24 THE COURT: And so how can I make a conclusion

25 that those dates are as soon as practicable for the --


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 20 of 33 20

1 MS. DAVIS: Well, Your Honor, the issue that was

2 raised in plaintiff's motion was not an allegation that it

3 was practicable to produce the records that it requested in

4 the 20 days that it asked this Court to order. What they

5 raised was the issue that there's a presumption that an

6 agency fails to act as soon as practicable if it doesn't

7 produce documents within the 20-day time period that is

8 applicable to standard requests.

9 And our response met that argument, which is that

10 presumption is legally incorrect. There is no presumption

11 of agency failure to meet the expedited processing

12 provisions if it doesn't produce documents in such a short

13 time period.

14 They also just pointed generally to their FOIA

15 request for a general allegation that obviously this could

16 be done in 20 days because their request was so discrete,

17 and as Your Honor identified, it was not discrete. Luckily

18 we've been able to narrow it.

19 Another reason why a declaration wasn't filed is

20 because this PI motion came in roughly at the same time that

21 the defendants received the complaint. Our response

22 deadline hadn't even run by the time that we were required

23 to file an opposition to this preliminary injunction motion.

24 Generally, in the normal course of these FOIA

25 cases, the defendant is allowed -- again, under a truncated


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 21 of 33 21

1 time period, only 30 days -- to respond to a complaint, and

2 then, you know, the Court usually calls in for a status

3 report, and we talk about sort of where things stand and how

4 long it's going to take. Well, we were sort of cut off at

5 the knees by a preliminary injunction motion that sort of

6 accelerated, even more than it's already accelerated, that

7 time period.

8 THE COURT: Well, they're entitled to file a

9 preliminary injunction motion, right?

10 MS. DAVIS: They are, Your Honor.

11 THE COURT: You're not arguing that that was

12 procedurally improper.

13 MS. DAVIS: I believe that the preliminary

14 injunction that was filed here, I mean, for various reasons

15 is not a meritorious claim.

16 THE COURT: That's a different argument.

17 MS. DAVIS: Yes, but I do believe that preliminary

18 injunctions like this are really more of a litigation tactic

19 that is being used, not just by this plaintiff but by other

20 FOIA plaintiffs, to try and bypass the standard litigation

21 timeline that I just discussed, and it does create a

22 significant burden on not just the parties and the Court,

23 but also the agencies that are actually trying to process

24 documents. It diverts resources away from that mission and

25 focuses it instead on, you know, working in this litigation


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 22 of 33 22

1 and helping counsel get ready to meet this.

2 THE COURT: Okay.

3 MS. DAVIS: So I do believe that these sort of

4 tactics, especially on a claim that's not meritorious, is an

5 improper use of a PI motion.

6 THE COURT: The August 15th deadline.

7 MS. DAVIS: Yes.

8 THE COURT: Does that assume that DOD and State

9 are operating under a normal processing timeline or an

10 expedited processing timeline?

11 MS. DAVIS: Well, Your Honor, they've -- as far as

12 I know, they've initiated the searches. They haven't

13 changed their position on expedited processing.

14 THE COURT: But they've put the request at the top

15 of the heap.

16 MS. DAVIS: I don't know if it's changed in the

17 order of the queue, Your Honor, but what we're saying is

18 that we have committed to processing this by August 15th,

19 and that is as soon as the DOD and State believe that they

20 can provide an interim response.

21 THE COURT: But is that as soon as practicable

22 under the expedited processing standard?

23 MS. DAVIS: Well, Your Honor, given the

24 information that I have, all of the agencies, regardless of

25 whether they've technically expedited processing or not, are


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 23 of 33 23

1 actively processing this request given the resources they

2 have and are working as fast as they can, given their other

3 competing interests, to provide a prompt response to this

4 request.

5 THE COURT: Okay. Thank you.

6 MS. DAVIS: Thanks.

7 THE COURT: Ms. Murphy.

8 All right. I've heard their timetable. What's

9 yours?

10 MS. MURPHY: Your Honor, we believe that August

11 15th is too much time. We would like to see the government

12 complete its processing and production of documents by

13 August 15th. Before that, within one week, we would like to

14 see a determination. Within two weeks --

15 THE COURT: How do we -- I mean, we don't know

16 what documents there are. I'm not sure -- I appreciate your

17 narrowing the request --

18 MS. MURPHY: Uh-huh.

19 THE COURT: -- but, you know, there are a number

20 of agencies. How can I order a production deadline without

21 knowing first how many responsive documents there are? So

22 doesn't a -- even under an expedited processing regime,

23 don't we need to stage this in a way that identifies the

24 number of responsive documents and where they are first

25 before then ordering a deadline?


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 24 of 33 24

1 MS. MURPHY: We could -- Your Honor, of course you

2 could do that. We believe that one -- about five and a half

3 weeks from now is not too aggressive. Precedent for other

4 preliminary injunction grants on expedited motions have

5 looked at deadlines that aggressive, such as in ACLU v. DOD,

6 which ordered preliminary injunction relief on an expedited

7 motion and production in one month.

8 THE COURT: What were those documents?

9 MS. MURPHY: Your Honor, I don't have it in front

10 of me --

11 THE COURT: All right.

12 MS. MURPHY: -- but that was a D.C. Circuit case

13 that we included in our brief. I'd be happy to get it to

14 you at a later point.

15 THE COURT: We can find it.

16 MS. MURPHY: We are willing to be flexible with

17 the government to work on a tiered calendar schedule to

18 ensure that they're able to make a determination first and

19 then produce documents, but waiting five and a half weeks is

20 too long given the current escalation of events.

21 THE COURT: So, you know, I read in your brief

22 that this is the first PI motion that you all have filed in

23 a FOIA case, but I must say that I appreciate the

24 institutional concerns that the government has raised here

25 about, you know, setting a road map or a precedent for FOIA


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 25 of 33 25

1 litigants. I'm told that there have been twice as many FOIA

2 filings this year as there were last year. I don't know if

3 that statistic is right or not, but given the resources of

4 the Court and the government, I must say that I'm concerned

5 about the practice in general.

6 I know that you're not responsible for what other

7 plaintiffs do, but to the extent that, you know, grants of

8 preliminary injunctions in these sorts of cases will provide

9 the impetus for further motions in cases that might not

10 merit them is a concern, which I'm sure you understand.

11 MS. MURPHY: We understand, and we do not approach

12 the preliminary injunction motion lightly. We filed the

13 preliminary injunction motion the first business day after

14 the second set of strikes against Syria were directed. We

15 looked at the preliminary injunction precedence and

16 appreciate that the nature of exigent circumstances has been

17 present in prior cases and is certainly here both because

18 the matter is a matter of war and peace and because the

19 factual circumstances have escalated so much in the last

20 several months.

21 Practically, we have worked to find other

22 resources to access the information we're interested in.

23 Unlike prior administrations, this administration has not

24 released any record regarding its legal justification.

25 THE COURT: All right.


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 26 of 33 26

1 MS. MURPHY: The President's notification to

2 Congress cited by government's counsel was slightly more

3 than a page long. It has not provided answers to Senate and

4 House requests for this information, as you asked earlier.

5 In addition, the Office of Legal Counsel has even issued a

6 sweeping opinion arguing that no oversight requests of

7 members of Congress who are not committee chairmen will

8 receive any response.

9 We are here very much as a last resort with no

10 other source of information and asking the Court to serve

11 its role as a judicial backstop as contemplated under the

12 FOIA statute to help us access this information.

13 Practically --

14 THE COURT: Other than -- sorry to interrupt, but

15 other than final OLC opinions, what documents do you think

16 are likely to contain the information that you seek? And

17 relatedly, in which components of the various agencies do

18 you think those will reside?

19 MS. MURPHY: Yes. Actually on Monday we had a

20 conversation with government's counsel on that very

21 question. I raised the precedent of the 2011 OLC opinion on

22 Libya military action that was released by the government at

23 that point and specifically asked for an OLC opinion,

24 whether or not it would be final and signed or unsigned or

25 perhaps a matter of bullets, whether -- and offered --


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 27 of 33 27

1 THE COURT: Don't you run into deliberative

2 process in cases like that? Have unsigned draft OLC

3 opinions been ordered released under FOIA, to your

4 knowledge?

5 MS. MURPHY: I do not have a particular case in

6 mind, but my understanding is that under the Public

7 Acknowledgement Doctrine, that once information has been

8 acknowledged to be out there, that there is a certain amount

9 of waiver such that it is not considered deliberative.

10 Moreover, once the government starts operating on

11 a certain amount of legal guidance, it is no longer

12 deliberative. Given increasing military escalation

13 presumably, that legal document may be guiding future

14 actions and thus the deliberative nature of it would be

15 removed.

16 THE COURT: Other than OLC?

17 MS. MURPHY: We have asked for information from

18 custodians at State L in the legal advisor's office as well

19 as the Department of Defense general counsel's office and

20 counsel to the joint chiefs. We have asked for information

21 along a spectrum of information that would be formal to

22 least formal including preparatory notes among lawyers'

23 meetings that may have occurred around the strike, calendar

24 entries for attorney meetings, and potentially information

25 that was prepared in order for public release or for release


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 28 of 33 28

1 to congressional requests that may be in the offices, for

2 example, of public affairs or a legislative affairs office.

3 Practically on Monday we were willing to narrow

4 our request in order to first access that type of most-

5 responsive information before even getting into the very

6 large search that the government now claims that it is

7 doing. We would be willing to also tier our request to try

8 to access some of that information, such as an OLC opinion,

9 if it exists, and proceed therefrom.

10 THE COURT: Okay. Anything else?

11 MS. MURPHY: I would like to respond to the

12 government's discussion of DOD and State denials for

13 expedited service.

14 The Department of Justice National Security

15 Division specifically articulated that it was granting our

16 request for expedited service based on the urgency standard,

17 which means there is an urgent issue by someone primarily

18 engaged in the dissemination of information. That was

19 included --

20 THE COURT: Are the three standards essentially

21 the same?

22 MS. MURPHY: Yes.

23 THE COURT: Okay.

24 MS. MURPHY: Yes. They come directly from the

25 statute, and the wording of the regulations is nearly


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 29 of 33 29

1 identical. Thus, we think the government could adopt a

2 consistent position in its FOIA interpretation, and DOD and

3 State should reverse that position.

4 THE COURT: DOJ could have gotten it wrong, right?

5 MS. MURPHY: We'll take DOJ's --

6 THE COURT: I don't think each agency is bound by

7 the other.

8 MS. MURPHY: Given that the wording is so similar

9 and it's the exact same request, it doesn't seem to make

10 sense to have differing views on it.

11 In that urgency standard, the standard is whether

12 or not the information will lose value if too much time

13 passes. Under Payne, the Court recognized that stale

14 information may have little value.

15 Here the government's articulation of the facts

16 regarding the escalating strikes is a bit confused. They're

17 actually trying to make the legal argument for the

18 administration, and that rationale is what we're searching.

19 They are trying to identify the legal rationale for strikes

20 based on whether they were issued against pro regime forces

21 and whether they were issued against, like, pro ISIS or ISIL

22 forces.

23 There is congressional authorization for strikes

24 against ISIS and ISIL under the 2001 AUMF.

25 THE COURT: So --
Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 30 of 33 30

1 MS. MURPHY: There has been no explicit

2 congressional authorization for that against our new enemy,

3 the regime of Syria, the Syrian government. Because that is

4 not existing, strikes and military action that have taken

5 place against pro-regime forces do not have an obvious legal

6 justification, and that is what we're searching for.

7 THE COURT: Well, understood, but that's her very

8 point, which is that to the extent attacks against --

9 related to ISIS and chemical weapons -- excuse me, against

10 ISIS are legally justified, then the justification for the

11 April 6th attacks have no bearing on the justification for

12 the other attack.

13 MS. MURPHY: The other attacks -- there have been

14 other attacks against pro-regime forces, not just ISIL

15 forces. In looking through the news, we have not raised

16 issues of strikes against pro-ISIS --

17 THE COURT: But for the purpose of combating ISIS

18 as opposed to deterring chemical attacks.

19 MS. MURPHY: Experts have weighed in. There could

20 be different legal justifications that have not been

21 disclosed by the administration. Regardless of whether or

22 not it's right or wrong as a policy matter or as a legal

23 matter, we're not opining on that. We are trying to find

24 out that very information.

25 THE COURT: Okay.


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 31 of 33 31

1 Okay. We'll take this under advisement and noodle

2 over it and try to get something out relatively shortly.

3 MS. DAVIS: Your Honor, may I be heard?

4 THE COURT: You may.

5 MS. DAVIS: I don't want to give a sur-rebuttal in

6 any way, but I do want to talk to you about the time frame,

7 the August 15th time proposal that the defendants have made.

8 And I realize I probably didn't answer Your Honor's question

9 when you asked it the first time.

10 The reason why -- one of the reasons why we have

11 sort of targeted that as a particular time frame in which

12 the agencies think that they can provide an interim response

13 is because the documents that are likely to be responsive to

14 this request are going to contain equities of other agencies

15 or other components, and there's going to have to be either

16 a consultation or referral process or both to make sure that

17 those other equity holders are consulted with prior to

18 making a determination on the particular document.

19 THE COURT: But how does that affect your ability

20 to at least identify how many documents there are by a date

21 prior to August 15th, and then, you know, the consultation

22 with the equities goes to whether they're properly withheld

23 or not; isn't that right?

24 MS. DAVIS: Yes. What's driving the ability to

25 define the responsive documents is completing the searches


Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 32 of 33 32

1 and doing a responsiveness review.

2 As I've mentioned, the agencies are sort of in

3 different stages. The DOJ components are a little further

4 along than DOD or State. But with respect to completing

5 initial searches, we do expect that based on the narrowing

6 that happened last night, that that's something that could

7 occur in the next couple of weeks, and then we would move on

8 to the stage of preliminary review to make sure we've

9 identified responsive documents. And that's why we've

10 offered, on that same August 15th deadline, to provide more

11 specifics to the Court and an actual, if appropriate, final

12 production date.

13 But I just wanted to let the Court know that

14 there's a reason why we picked August 15th, and it took into

15 account the need to consult with other agencies, which can

16 be a time-consuming process.

17 THE COURT: I appreciate that.

18 MS. DAVIS: Thank you.

19 THE COURT: Okay. The motion's under advisement,

20 and we stand in recess. Have a nice weekend.

21 MS. DAVIS: Thank you.

22 MS. MURPHY: You too. Thank you, Your Honor.

23 (Whereupon the hearing was

24 concluded at 10:48 a.m.)

25
Case 1:17-cv-00842-CRC Document 16 Filed 07/19/17 Page 33 of 33 33

1 CERTIFICATE OF OFFICIAL COURT REPORTER

3 I, LISA A. MOREIRA, RDR, CRR, do hereby

4 certify that the above and foregoing constitutes a true and

5 accurate transcript of my stenographic notes and is a full,

6 true and complete transcript of the proceedings to the best

7 of my ability.

8 Dated this 19th day of July, 2017.

10 /s/Lisa A. Moreira, RDR, CRR


Official Court Reporter
11 United States Courthouse
Room 6718
12 333 Constitution Avenue, NW
Washington, DC 20001
13

14

15

16

17

18

19

20

21

22

23

24

25