may please the court lee crawford boyd i represent the individual bacall and appellants and the police forty years ago the political branches congress along with the state department exercised their powers under the constitution in foreign affairs to delegate to the courts all questions of when a foreign sovereign can be sued in the types of cases they can be sued for in courts of the united states when they passed the one nine hundred seventy six f s i a corps below for the first time as know what the court has done obviated that delegation by applying the political question doctrine to send back to the political question to the political branches the very question that had been delegated jurisdiction but if it is a political question or a moot question or a i with other question you know all those doctors still apply it's those are limitations on our fergie super see their stature in principle there is something very wrong with it no political question doctrine has ever been applied by any court to the jurisdictional inquiry under foreign sovereign the policy decision made during the one nine hundred seventy six f s i am for and apply for the past forty years was made in that statute and that statute in the legislative history to the preamble to all courts after that and berlind and have said that the courts the article three courts and the state courts must apply these principles and they must decide the questions of of of start sovereign immunity in u s courts your honor they did that as it states in the in the legislative history obviate the political pressures on the state department at that time they were being placed by diplomats and they didn't want to have those questions before them and today as we stand here there's no indication that they changed their mind about that delegation of power and is justice kennedy and altman stated it would be it would be constitutionally problematic for this court to in a sense constitutional hopper to descend this question of jurisdictional inquiry of when a sovereign can be sued in united states courts back to the political branches in light of the f s a jurisdictional inquiry which has been mandated by statute and by policy to be the courts it must be adjudicated by the courts that was a political decision made by the political branches in one thousand nine hundred eighty six that's been decided and within the absence of any contrary policy there for some reason the courts the isn't of exactly the same claim of the next step exactly the same inquiry if the court had gone through the baker v carr factors on the claims that were brought the property claims is a like into the case of alper why don't we just do that now we can do separate questions of whether there's immunity i submit that it was improper to apply the political question doctrine absent some indication from the executive that they wish to unduly gate that power to the question of adjudication of  reason there's no reason not to and i submit there's no reason to do it as i understand the record somebody perhaps it was you did send a letter to the state department yes i mean that is in the record and i can also test that i've spoken to them face to face and the state department on this case and in india invited them to this hearing i'm not sure they're here but they have not  everywhere they are everywhere i don't do not doubt that your honor but that they have not made their views known to the court at least as far as i know and i think that's significant when applying the political question doctrine it was significant  because these are questions that are specifically in under the federal powers given to and delegated to the court under the under the international law standards that  i think at the court of appeals level and the supreme court level on the side of the republic of austria and they were not they were considered but they were not deferred to by the court and i suggest that they wouldn't have to be deferred to here because there is no that was found here yes and isn't it true that if you want to assert or invoke the appropriations exception you can't do so on behalf of citizens of the state that has taken the property unless you find genocide or some other violation of international law i would agree with that in fact the court in seventh circuit and the d c circuit have done that  do you see that that could be why judge and that she had to consider the political question issue before she made a determination as to whether  said that we don't have to read the course of whether there were not in the claims your honor only at the level and you don't even really have to reach it on the level of international law violation although simon did that the d c circuit this year compensation is an international law violation that was all we needed to plead however we can also in this court can decide because we've done it you've done so in some way that there was an international law violation in a genocidal taking that's within your purview and it's not a political question it's a legal question which belongs in the genocide and the jurisdictional incur of the f s a are claims your honor when i'm presenting my case to a jury do not bring up the armenian genocide at all or genocide their mere property claims that are the backdrop of war time however as judge mccune said an operant claim is still claims for property stolen property merely because they happen during the backdrop of war do not necessarily make a political question and my question you'll maybe able to answer yes i know you disagree with and you think i when i say they say this i'm saying i do you agree with that you think i have i believe that i assume you think i don't agree i'm sorry i assume you can't get a plan really for that that's what they say so you have to come back with something else and say it's false with an exception of the exception violation international law of norms is one of them genocides another one how do we get your answer was you never have to reach the question of genocide and i meant trying to figure out how you can say that if if the you know they have a defense and they say we are entitled not to be here done yes or they have applied it and the under the fs i in the simon case and under the f s a in the abolition case and they found that takings during the holocaust violated international law for the jurisdictional purposes the claims underlying them were not for genocide and ours aren't either nor are they for human rights violations they are for prop well the question of whether takings in the home cos were as well to justify the not really politically controversial  well your honor number one for the political question doctrine they have not made that position known in this case that they would not want the course to make this decision under fs i a a because they have not made an exception for turkey or for the armenian genocide in the interpretation of the f s a there is no indication in any case or from an executive amicus brief as there's been in other cases or in any as a statement of interest that there is an exception for the armenian genocide above all other international law in response yes you can always do the political question you could do it now or you do it later doesn't matter when you do it the question is not whether we can the questions were have to know you don't have to but certainly i think when you set it up i guess we didn't understand the question federal courts have to take a position that is possibly contrary to the position that has been out here to buy a government for the executive branch of government for decades first of all it hasn't been for decades so that it's clear the both the where the problem lies we keep saying or we keep saying genocide genocide the g word which is two of the three of you were there for the and bank on the most extreme case that was specifically went to whether word genocide was used as was in the paperwork if you take a look president obama all eight times that he's had the opportunity or seven times he said the opportunity to comment on april twenty fourth has actually use  which is great calamity let's talk about for we get to the merits of it let me ask you one question i understood you to say that some point during this case we would have to decide whether that was  all of the international law violations whether it's torture whether it's mass deportation whether it's expropriation and then genocide was the only international law violation left us i mean i hypothetically of course but that others if the citizens have been effectively stripped which is what the judge g said that that was suggestion was made at the trial court level that also is an exception so you do not have to default if the citizens of the sovereign have been effectively stripped of their citizenship that in and of itself would prevent you from going where you keep asking me how i think of hypothetically to go which is t have in fact both treaties that were entered into turkey did not become i think in one thousand eight hundred twenty three turkey did not become signatories to that would have absolve them of specifically that one point which would have given some kind of reparations to our millions of citizens they did not become a signatory to it because there are laws there that at the time specifically said that they were less so all of that is great but we didn't get to the point where we could flesh this out at the trial court level and what i was going to say in response to your question originally the hypothetical was when you say that if we have to get there eventually yes i agree but for purposes of this motion we assume the facts are true so we get over that hurdle and then once we have jurisdiction then we have the plenary or the full blown hearing and then at the full blown hearing i get to put on evidence i get to show ambassador morgan's house missives to the state department i get to show that the government of turkey not only expropriated this property but then came to the us and went to the secretary of state  we want to now take the armenians property here in america namely life insurance proper policies namely the property damage policies that were issued by insurance companies based in america that were ensuring  to turkey if if we applied the turkish statue of limitations or if we took judge kozinski suggestion and applied we imported the us we still would be within the statue of limitations turkey has taken and expropriated a property within the last six years churches they've taken actually sink your argos within the last seven months so there are claims that are clearly within the within the last seven or eight months so we questions but i had thought that you were not placing it on the seizures so much as you were basing it on the failure to give an accounting i made for the trust the forward to trust and that that i guess is a remains that when you take the property that the whatever dividends whatever rents whatever approves that's and you demand the accounting and you demand a constructive trust that is ongoing so once that happens obviously if somebody was paying rent on the church or on a building or on an air force base two years ago and turkey hadn't taken it then there is no there's nothing to complain about once they take it once they take the property wants to expropriate it the rent of the to do the accounting this to do that right and some put you under the statue of limitations going back to my not so spectacular answer see your answer is that you can now go back a hundred last six years correct you could do it similarly to an open book account if you say i want an accounting and they give you an accounting you're entitled to the interest all they do is cut off if there's a statute of limitations problem all that does is take your hundred years minus the ninety four and give you the last six you're still in it they've still got it they're still taking the money they're still sending it here to the ministry they're still using it for the bureau of tourism they're still mixing it with the central bank they're still putting it with turkish airlines they're still flying in or flying out why would the i mean mike my response would be the accounting would still cover any of the acts that are done within the statute of doing an analysis of the political question doctrine what weight would be good to the current situation in turkey and the fact that the united states is their partner in defense that they're occupying the very land that you want returned to you are many paid for and that we have this crazy president over there right now who who we don't  problem is as when we keep saying we're using armenian genocide as kind of a talisman here to conflate all we're talking about here is there has to be everything that drives as you characterize it the crazy country out of germany or france is when they use genocide that's it that's the magic word if you don't use genocide if you say meds you're going like iraq obama does if you talk about one point five million like barack obama does every year if you talk about the atrocities which is what he says the violations of international law apparently that is funny the fact remains though in the problem is is we've taken most ceci and i think we have taken it exponentially  sessions ruling specifically that the state the california putting import the term armenian genocide because it was preempted by the executive that was all it stated it didn't say anything more than that and what's happened is we've gotten to the point where we will most exaggerated what that means it doesn't mean you can't utter armenian genocide we don't have it's not like in france where the denial of armenian genocide is a crime  specifically says let the court decide congress in fact you're stripped holding in most of us who was it's a federal issue didn't say it's only in the executive it didn't say it's only the legislative it's said it's part of what the national government is supposed to do the the the federal courts are part of the national government if the state department comes in and says this is going to cause this or the other thing and that's a political crime so actually that hypothetical doesn't ring true number one number two if you're going to say that genocide is a political question because if there's nothing that says it's just exception the question is whether what happened to the armenians in turkey can qualify as genocide only if that's the only thing that i'm hanging my head judge kozinski says could just side with the sound and then it would be clear i think the fact that you keep sort of talking around the day you don't do it tells me it's pretty important and at some point or something that's going to have to be decided ok which means we have to decide law violations without having to do without having to own genocide absolutely i can do that you can but you haven't done it well you have the said look i proceed on those here is only i give life that's exactly what i'm saying and i'm willing to proceed on international law violations which is the pathway towards the proceeding of the expropriation which is precisely where judge j orders left off absolutely i don't think that that's i apologize if you thought that that was the that was the essence of the lawsuit it is not the essence of the lawsuit is the international law violation  exception your honor i would disagree that there is a domestic takings bar when it comes to takings that are alleged in this complaint and in the devoid of complaint like sign this court has never held that a taking during a you know a massacre that is discriminatory across a group or genocide is is they're not nice exclusive is what i'm saying domestic takings applied because the facts before did have that element in but it wasn't required for an international law violation as judge kozinski has said the courts for example in simon and in our allies have recognized and even judge g that a taking during the commission of a of a mass discriminatory crimes against humanity does also violate international law and nothing in the legislative history of the f s a indicates domestic takings rule in fact it says and superman this court said international law violation of taking in violation national law includes a discriminatory taking one without just compensation and that an arbitrary taking and we wouldn't even have this house was taken so they could do a development kind of a good and she claimed that this is this is not permitted you can't take this property and give it to a corporation to develop because that's not a public and discriminatory so i don't think arbitrary is enough and without just compensation so we would have to prove that this was a discriminatory taking for jurisdictional purposes as opposed to for the f s a as opposed to our claims our claims are pure property claims under unfair under unjust enrichment accounting contracts constructive trust and the like state law claims like they were on our print and the korean case and before this court did and the point i was trying to make and i believe my counsel to is they did discriminate between and the jurisdictional question and just to belittle these disability applies to claims so i do disagree and  armenian genocide this court can't create such a carve out using the political question doctrine thank always been about genocide and the reason it is always about genocide stop today i'm sorry well let's stop today while you would you want to victory even without standing up and talking they have just kozinski you were on the point when you talked about what happened in connecticut arbitrary in discriminatory taking any kind of taking that occurs overseas between  government and its citizens is part of the domestic takings exception no excuse for that no exception to that that is what the domestic taking succession is and always has been so this and that is your argument we would then have to break with a seven second yes well i think what you what you have to do is state where this circuit has always been there are for the mess off of d c the seventh in d c versus this circuit the fifth in the eleventh no there's no debate about that except let's look where this circuit has been are four domestic taking six cases of two of them involving the holocaust and in all of those cases including the most recent one which was on bank the domestic take his exception was just concurrence described the domestic takings rule as the consensus view among the courts it had been adopted in in the fifth circuit in sanchez but nobody this agrees that there is such a rule the question is whether the rule has exceptions so if a state wants to you know germany or france or england wants to expropriate some of these  takings rule does cover generally and this is a matter of policy and matter of what courts of thought is wise policy we stay out of their business because we want them to stay out of our business but we didn't do it with the have rejected the holocaust accepted but let's look at it in this particular circumstance these events occurred in one thousand nine hundred fifteen the statute the fs siad which we're talking about whether there's an exception for uses the phrase taken in violation of international law when you use that phrase plain meaning of english is that it was in violation of international law at the time of the no everybody agrees that it was what at the time it occurred at the time and occur in the forty's but what it what there is no debate about that i've ever seen is that international law violations are measured at the time they occur and the f s r they incorporates that in the phrase i just think of how traffic thinking fifteen it would not have been contrary to international  i don't think we have to talk about the holocaust but there's a different issue with the holocaust and only after that question yeah ok well the answer in the holocaust one of the reasons it is a different circumstance is because the holocaust is cases including the two cases that say the holocaust is an exception start with the holocaust they don't start with anything before the holocaust bad stuff i assure you we all no no legitimate debate over whether it occurred and there is also a line according to judge from rossi it is a quote in there this was recognised in the forty's that clearly true there are individual you know good reasons or bad is different from saying a government saying we're going to take away some of these people's property in their own particular religion ethnicity something of that sort of race they are different and the principle that we don't mess in your business because we don't want you to mess in our business doesn't really concede your client's case away but as of today you know like you know some action taken by government today wouldn't you agree that there is an exception there should be an exception the statute means and let me give you an example in one nine hundred ninety four there was an amendment to call for exactly these kinds of events that it was limited to you u s citizens but there was a proposed amendment in the house and they stood big and the up hollands said we agree these kinds of events are not covered and for whatever reason they shouldn't be it passed the house it failed in the senate but there was a recognition by by least one house of congress that the existing statute did not cover these events and there's been no subsequent a member so what we're doing is interpreting a statute and trying to figure out what the statute meant as opposed to what we would do if we were legislating for legislating or lots of things we can do but congress has made the legislation here not anybody else and the legislation at the time didn't cover it now for example w influenced by his i mean you're asking us to interpret the statute passed forty years ago by the partial action of a much later congress well i think that just a split would say two things one he would international law and we know what that phrase means i write books about it and take it means taken at the time and i may not like it but i'm going to adhere to it that's what justice s six of one half dozen the other if you think the legislative history and i mean legitimate legislative history that is real action by congress not midnight  you might want to consider holding it because the the us and the court issued a c v s he in the us his position on cert was the position that the ninth circuit has taken and that was argued here that we just need to a non frivolous allegation the u s was not happy with that tony and i said flat out that the that the d c circuit for adopting that was wrong they didn't say what their test was going to be presumably that will come up when you know how successful they have been in these cases before the supreme court well the court granted the court granted cert on only one on the only issue that the united states asked to to grant cert on after its use were solicited and so you don't have to reach the political question in order to determine jurisdiction you have to reach the political question before you can determine the mercs and obviously if you throw it out on jurisdiction bent on f s r a jurisdiction and you're done but don't know what the pleading say i know how this case has been presented and the other thing i know is that there is no way no way ever to bring a hundred year old claim without finding some way past every statute account law which oddly i happen to know about it is four years from the last century there is no statute of limitations which doesn't ever run in as a judge kozinski said and if there were it would be quite in lattice in some way ten why wasn't a case brought it's not because there was a genocide in one thousand fifteen it's not because the plaintiffs couldn't bring a case most of them weren't born in one thousand thirty three and certainly weren't born in hundred fifty it's because their argument is for some reason because we claim there was a genocide the statue shouldn't run and the answer is statute do run and there exception is it's s because there was a genocide and that's why you always will have to decide the genocide question putting aside the fact that there's a complaint with twenty four references to genocide and if you look at the other complaint and if you look at the international law violation what supposedly oh this is just a violation of international law this is it you are ninety eight defendant republic of turkey directed in protests appeared in a deliberate plan to force deportation confiscation and extermination in furtherance of the commission of work crimes crimes against humanity crimes against peace torture rape starvation physical and mental abuse summary execution and genocide that's in there international it's the first paragraph of the international law violation in in the two voyant case both of these are rife with that there is no way these cases go anywhere whether it's on a statute of i think you can i think cases have it's not normally the way it goes normally the way you do it is do i have jurisdiction and then i'll decide it but i don't think it really matters here because it all gets  back to the political question if you how are you you can say how will i ever decide whether there's a political question here well that is a question of whether there was an armenian genocide in all of those issues and you look at you and you say we're going to have to decide that because if we ever have to decide statute of limitations which we would have to decide if we took jurisdiction we would have to decide the same the same point middle east it has five thousand airmen it has tactical nuclear weapons it has patriot missiles it issues every day almost every day didn't it was it was down for one day last week to bomb isis in syria  for the return of the property yes and they also i think for damages if it's not returned yes they are but that's not the issue that is what they are asking for return of the property and the question is how concerned is a nato ally who owns the land that they're asking for we're from which we operate into theaters of war and in which we satisfy  is that a political question if that's not a political question there is no such thing as a political question and there's no way to get around that there's no deft way to dance and deal with the  question the issue here is is a foreign affairs and the constitutional commitment of the issue is here to the political branch where the executive decides and congress to some extent decides foreign policy it is not to the judicial branch i think we can all agree with that so that's factor one factor for under baker difficulty of resolving without disrespecting the sanctity of executive control over foreign policy if you have to decide anything with regard to the genocide question you're going to have that problem we have  situation in which this is him this is a bad neighborhood of the world and bad things happen here and the executive has made decisions about how it wants to go forward and we can agree or not agree with those decisions but those are decisions of great weight which need to be respected and the executive has made these decisions in in ministrations for twenty five years in both parties there has think we have no human with the well if they say that then you'll have to decide the issue if they say i have a feeling what they'll say but they don't want to say very much if lawyers just ask them to have judges ask them to i think they're a little more persuaded to do it but that's obviously is fine with us if you want to ask the executive for it's its position i think it's position you know would be something that the court takes into account correct the air force base argument only applies to one of the two but i read from the international law violation from the other complaint and that also involves genocide there is no way if they'd came back in  d and took every reference to genocide or anything like it out of these cases wouldn't survive a minute violation because every other international law issue gets covered by the domestic taking succession or the domestic takings rule what they're trying to say is oh there's a domestic takings role but never a plus because it very they're saying that would be but it is that they can say whatever they want but it isn't it is not a violation of international law as a general matter how a nation treats its citizens if that were true we would be in russia or we would be in china and we would be in court all the time there is no violation of international law because we don't like how some nation treats its citizens because we don't want them to tell us the same thing it's  sort of that simple the domestic takings exception is the embodiment the comes in the context of expropriation and the reason it comes in the context of expropriation is that because that is what other and god knows i never thought i'd be citing justice marshall in eight hundred twelve but if you look at that case that's the start of the mystic rule and he says we don't tell foreign nations what to do as to their citizens in the former nation and that goes out and we have and i think it's recall in one thousand eight hundred we have belmont we have a whole line of cases in which the general rule is we don't interfere with what other nations do and what planets are our group or if they've and then there was in these two cases in the last two hundred years in these two cases they persuaded in the mean that the rule doesn't otherwise apply the exception for genocide from the domestic taking rules is an exception from the domestic takings it is not entirely it marker's again just in response to the to two of the points i'm not aware of any cases where the court does not have to determine jurisdiction before statue of limitations whether it is alien to international law and then it said and genocide if you strike in genocide mass torture the enslavement everything else or all you could just take them off they're all violations of international law as far as the political question we can as mass torture her to do with taking well generally i would think that they can go hand in hand if you have a generally when you go to torture somebody whether absent doing it in their house if you round unless you're going to go in and torture people in their houses and leave them in the house and leave the house there that would be i mean i don't think that happens that often my experience and at least in reading history is that generally when you do mass torture that ends in mass graves and that's generally not in the contained in the record that we can show at the time there was a violation of international law and it was characterized as that on the front page of the papers and in the in the library of the museums in the libraries of congress so there is a we don't have to imagine taking the whole a cost and putting it in retrospective lee putting it in the one nine hundred fifteen because we have ambassador morgenthau documenting it in real time history to the u s government we have in real time history the ambassador from turkey coming to the u s talking about it at the same time and we have real time documents and evidence that we can present and frankly i think if you look at judge g s order she a the cases in which this has been decided these questions and nothing has been settled as far as domestic takings there would be this is the first time that the court has to address it head on whether or not used crimes crimes against  humanity that are played in these in these complaints are an exception to the domestic takings rule under the f s a and we ask that you affirm judge g s finding on that point and also to not depart from the d c circuit judgment of  to cases that touch on foreign affairs no matter how polarizing they might be not all questions that touch on foreign affairs are political questions that must be not not be just the chabal and we ask that you remand for findings on the statue limitations that are