which provides for broad sovereign immunity and then creates jurisdiction for a limited subset of civil actions this reading is consistent with the common law codified by the f s a a lot flybar countries allies and international law the governments reading of the s s i however would have this court hold that congress massively and silently expanded the application of the restricted theory to criminal cases against sovereign states a step no other nation had taken at the time or has taken steps alternatively if the government is correct that the s s i does not apply to criminal cases then whole bank is immune under the common law either way the judgment the district court should be reversed your honor let's start as we must including criminal jurisdiction and an attempt to avoid this plain language the government tries to shift the focus to the jurisdictional portion of the f s a section one thousand three hundred and thirty dollars a which provides jurisdiction only for non jury civil matters and four barring federal and state courts from exercising jurisdiction and with their team thirty eight conferring limited jurisdiction over non jury civil matters and this court and mobile sara reinforced that decision holding that even if an jury subpoena upon which the government relies makes many of the same mistakes as the nd circuit opinion that the supreme court reversed narada hess and did judge care his dissent there set out much of the reasoning adopted by the supreme court in its decision domestic criminal actions will somehow limit the executive branch's of the already historically courtrooms are not the forms or battlefield were sovereigns settle disputes instead we see diplomatic action economic sanctions or god forbid the use of force we don't see domestic criminal action in fact we've never seen one which would suggest the executive branch has managed quite well with its existing toolkit including the prosecution of individuals involved but simply the government has no can in the statutory interpretation no common law basis nor any international law basis to overcome the plain language of the f s a which provides for immunity in criminal matters now your honor turning to the commercial activities exception the exceptions in section one thousand six hundred and five codified the restricted period from common law for civil cases but they don't apply to this case or him any criminal case this i was implemented sovereign states were immune from criminal jurisdiction a common goal applying the f s a exceptions in criminal cases would mean that congress stripped kamel munity from sovereign state and did so with nary a whisper now that would be an odd result standing alone but it's even more unlikely given the fact that every other nation that is statutorily not to the restrictive theory makes clear that it does not apply in criminal case similarly there is no evidence of the restrictive theory for civil cases means that it applies in criminal cases nor does the government or the district court identify any evidence that international norms allow governments to exercise over foreign states and responses this lack of precedent the government response that it's the executive branch that makes the law here but it's justice thomas noted in his dissent in the upper skagit indian tribe case because active cannot  abrogate common law munity principles that power belongs to congress  can't show a single case in which it has successfully overcome sovereign immunity for instrumentalities the only two cases they cite in re world arrangements case and the in re grand jury investigation of shipping look our focus is on the plain language of the statute and under the lewis and bostock cases we think that controls but again to the extent congress would have to consider the issue they were  a common law background and which sovereigns were subject to absolute immunity in criminal law that would have been no need to implement removal prum procedures when in fact no prosecution could why why would they obviously that's not usually turning researching the criminal prosecution right you're on i think even if a stray statement could contradict the plain terms of those separate provisions i do think there are cases that would refer to the store you could but you wouldn't claim that the local candy store would enjoy special immunity just because it was a conduit for a tax or quote commercial and quote application it has a collection like i said to collect taxes on behalf of the government it makes lots to shop owners and craftsman part of its original mandate that are backed by the turkish treasury it operates government programs that are designed to encourage industrial areas cetera and then eventually guard the bank gets the not amiss with the government of turkey is that right i i don't believe they would your honor we i don't think that issue has come up but i'm just curious you know i mean since since the bank is synonymous with the government of turkey in your view i assume that the and yet the bank now john that this court should approve what is on president the application of the criminal indictment not again similarly with respect to this court's decision in mobile serrano that case held that a civil proceeding to enforce an arbitration award could not escape the reach of  nowhere in the page letter or any other of the state department really they speak to the question of what we are we are retaining some form of absolute immunity with respect criminal process back do you have any view on whether the government has regarding those officers as enjoying diplomatic immunity or any other candidate immunity associated with a foreign which stayed the proceedings in the district court at that point it appears from the record the district court in visaged a jury trial to begin on made thirty tw one and its reference to all offenses that just can't answer the question because even the government concedes that foreign states are immune at the common law and that means that all offenses does not mean all offenses when it comes to stop as far as the questions about a comprehensive scheme the government says this is never been applied to criminal cases that's because there haven't been any criminal cases but nothing in the act or in the aam rada has decision limits analysis the civil cases in fact at no point during the argument the government explain immunity comes at the comedy and grace of the united states not of the executive branch the executive is not a law into of itself chief justice marshall didn't for lying merely on the executive suggestion of immunity in the skin change he looked at international law and common law and the government explicitly admitted this in the tate letter or it conceded that a shift in policy by the executive cannot control the courts that means that sovereign immunity applies and unless and until congress on mistakenly provides jurisdiction that trumps such immunity and it has not done so here finally regarding instrumentalities your honor despite the government's attempt to characterize colonel prosecutions as quote rare and quote they just don't exist other than the government's cases they cite none of which are actual prosecutions their best side is a l article that says it's theoretically possible to an audi but doesn't actually include any indictments and your honor the government's reference to the hanging case is quite confusing because there the government that the pang getting into cheese or instrumentalities of the chinese government all a subject that was of much discussion at the th circuit but i will say this your honor i think to the extent this court believes there is any uncertainty at common law about whether it can indict instrumentalities we don't think it does that that confusion works against the government there is no dispute that going back to the schooner exchange sovereigns in their instruments out is were absolutely immune from criminal jurisdiction and the government can't cite a single case that would change that common law absent a change in common law only congress can change the jurisdiction of the courts and we would submit the instrumentalities just like sovereign states themselves are immune from criminal prosecution and thank you ron thank you judge hears any