statute that is rife with a separation of powers and foreign relations concerns a statute that the supreme court has said federal courts must expect exercise judicial caution and vigilant gatekeeping before allowing any claims to proceed has been going on quite a while how much what are next steps and let's long what do you suggest are next steps well your honor i think next steps are we have this appeal because we've been denied immunity that we believe the cac aizen title to the core has a number of different ways that it could resolve this case and in this case essentially here today there are a number of problems with subject matter jurisdiction immunity being just one of them there's been intervening supreme court precedent intervening present from this court that we think mandates dismissal of this case where you do a to this court said that cac i would be able to take an immediate appeal of a denial of immunity if it was grounded in law we could not have a denial in in denial and it relates to solder you got it that's exactly what i'm telling you roger because the district court denied sovereign immunity on one ground in one adrift of sovereign immunity on one ground and one ground only and that was the district allegation of the use kogan violation of international law but let's assume that's wrong for the sake of discussion isn't under the in you and you sided to him or he to that there is it looks like to me and i am new or to this case than you and everyone else here but the the door is shut own collateral own the collateral border doctrine for bold war for political question doctrine and  preemption in terms of immediate appeal it least an avenue potentially for a mangold or a derivative sovereign immunity appeal as you say if the naps direct question of law i don't think them strike question overall however as i read all the cases is about the just coggins issue the issue requires for a contractor an abstract question of wall in a an adherence to the contract in there be no question of fact about it here as to the contract is it your position that there's no questions of fact at all about it here to the contract yes it is your honor but i want to back up in say that in assessing whether an immediate appeal and the court said the supreme court directed that in determining our jurisdiction in this area we should consider the order entered by the district court to assess the basis for its decision and that the only basis on which the district court denied  derivative immunity to ca c i is its legal conclusion that the united states would not have sovereign immunity for allegations of violations of your scoldings now assume we think you have to show there is no question of fact at all about it here it's the contract explain your position as to how that is the case sure you're on or at two points one the contract provides and all of the testimony bought it provides that cac i's remit with that contract was to locate and hire civilian contractors get them to iraq and turn them over to the u s military chain of command so the u kyogle and talked about that they require a two step framework for extraterritoriality and they talk about the st step which is does the statute apply extraterritorial that was resolved in kiel will a t s does not and then the court went on to say if the statute is not extraterritorial then at the nd step we determine whether the case involves it domestic application of the statute and we do this by looking at the statutes focus and the paragraph proceeding that the case law that the district court actually said that this is an interesting argument that our g r nabisco creates what quote a possibly new standard and then said but i'm not going to reverse the four circuit they might want to reverse themselves but i'm not going to do it  which is the denial of immunity on a pure question of law that's not tentative that occurred after all the discovery that the district court was prepared to allow had been taken out there are a lot there's lots of important discovery the district court did not allow because of secretary madison's assertion the state secrets privilege but we have a complete record in terms of what the district corps is willing to allow in this case so is it your position that evidence and the record of that conduct i won't outline at all that the point is complained of is it your position that that cac was there's no evidence it was involved in this torture or improper conduct or is it your position that c a c i was involved with it but it was doing so if the because the party within that contract did authorize well your honor our position is that the record does not show c c i personnel engaged in torture in any way shape or form assuming there's a question of fact about that because there's well me i'm not going i'm not want to argue with you but there's i'm not think there's evidence on the record that would suggest at least in terms of setting up the procedures talking about the procedures there may not be anything at this beck to the direct involvement of these point of but to the overall conduct i think there is evidence in the record and you are that was going to be the nd half of my point that the the record does include some allegations mostly in government reports of discrete acts of misconduct none of which i think i would in any way qualify as torture relating to plaintiffs or detainees other than these plaintiffs and there is no act of record evidence of c s e i personnel at engaging in any misconduct with respect to these plaintiffs are directing anybody to engage misconduct with respect to these planets plaintiffs were all deposed they have no evidence to provide regarding ca there or debate that but in light of that record what i'm trying to figure out is your is is your argument that there's insufficient evidence that cac out was involved or that so if  c m was involved it was doing so under the approval if you will of the party with whom that contract with respect to these plaintiffs your honor there is not just there is no evidence of c c i personnel being involved in any way in the mistreatment of these plaintiffs with respect to whether cac i personnel with respect to other detainees acted as directed by the us military  think the record is quite clear that the us military took it upon itself to dictate all of them operate operational supervision of both military and cia cia interrogators and to the extent that there is any evidentiary gap such as we don't have in the interrogation plan for also mars one interrogation which exists and could be given to us or that we don't have the detailed discussion of the  exactly what the united states approved that goes directly to a defense requires that that may be an issue for trial or about whether there's an adequate basis for the plainest prove their place and you have a due process issue on that to understand that  the why isn't in light of their allegations that this is that they are that the cac i was involved in the conspiracy and was aiding and abetting why is not the evidence that they were part of the planning sufficient even if there is not specific evidence they were involved in the actual interrogation techniques as it relates to these pointers your honor as as we stated in our brief the record is undisputed that  interrogators they would interact with for instance and piece and in given piece instructions on how detainees should be treated and that's that's how the military set up there the evidence budget by the m p s whose depositions were taken that this was not interrogators coming down to the hard site and saying generally i want you to do this with detainees want you to do that it going to stay there for twenty four hours and they give instructions like he's supposed to be kept awake for eight hours a lot of sleep for water whatever the subjects of the program work and that was a natural process but it was also very specific by all the testimony from any facts to provide that tie cac i personal to their mistreatment mostly their testimony is that they were mistreated by m p's and don't really have any basis for tying any interrogation person to it there are some allegation that they were mistreated during interrogations but for instance he was interrogated three times only one of which involved a c c i employee the st two interrogations were solely army personnel interrogations and then said there was one time when he basically there he was done being interrogated this is some days or weeks after his rd interrogation of some terrorist brought into a room somebody punched him in the chest and then play here any more of your honor i see my time is running short the one thing i wanted to say is it we think that the court's ruling just a court ruling on sovereign immunity is clearly wrong sovereign immunity waivers cannot be implied we think the court should make you reverse that ruling in no uncertain terms and then from there i think the court has options because a lot of jurisdictional problems in this case to us the cleanest narrowest resolution of this cases on extraterritoriality finest have not alleged any domestic violations of international norms in their brief and so it's really please the court i'd like to start with soccer star a which is to observe that it's been over eleven years since plaintiffs filed this complaint eight years since khaki filed its st improvident appeal before this honor my st response is that this is an interesting conversation but one we should be having with the jury because they the district court cathy made these arguments in a summary judgment motion and plaintiffs filed seven hundred khaki lost that motion it is not for this quirk to review summary judgment on an interlock atory appeal i assure you there is a point again there is plenty of record evidence that comes even even police who were told by khaki employees to soften up detainees and evidence that everyone understood what that meant we have voluminous evidence but we can you know rest easy and not ask this quarter to evalu military in this conduct that is complained about there may not be evidence about such conduct as it relates to these particular plaintiffs but there is in the overall context from a conspiracy isn't it an abstract question of wall as to whether you win the military's they are shoulder to shoulder with khaki doing this and not objecting that it's income form of the would the contract that is why  about merely sending over interrogators entitling them to derivative sovereign immunity campbell you all would have come out differently because of course the contractor there was generally following the government's instructions but they specifically violated the terms of the contract and so just to get to this of the jurisdictional question or problem to cohen the district court did not decide whether khaki violated the government's instructions and here the government  structures or comply with international law the geneva conventions and federal law because she couldn't because not only are they not completely separable from the merits under prong two of cohen they are absolutely overlapping and because she decided some read judgment on it on a two thousand page record she determined that these questions were intertwined and would go to rick jury and there's a way in which that's why sovereign to me a derivative sovereign immunity that they are violating the government's direct is when they're working alone the government in doing the things you're complaining about your own name address that the question of terminology and direct your attention the south carolina board of dentistry which quotes judge posner simply calling something an immunity or defense is not dispositive of whether or not it fits cohen prong three whether or not it's appealable immediately because these questions are always interchangeable and there is no case in the th circuit that holds that derivative sovereign immunity or even federal sovereign immunity is within the class of orders that's immediately appeal while some aren't too footnote three says mangled immunity is which kathy despite so that was an abstract question of law and the court was analogizing a qualified immunity the court says sometimes qualified immunity is immediately appeal will if it turns on the abstract question of clearly established law so sometimes mangled immunity would be immediately appeal could the question that was that may be right i may have a different view but it leads to a point that i think is important which is if the activity complained of is being carried out shoulder to shoulder with the military with whom they contracted how is that in violation of military lawyers and isn't that a quite abstract question of what st your honor  if unlawful conduct is not necessarily protected nd the record i get i don't know for sure i have enough time to go through the rhetoric is deeply contested on the shoulder to shoulder question we have go by saying there is a command vacuum that at not khaki interrogators to positions of authority and there is an absence of the court the this is what all smart foresights unequivocal evidence of an absence of leadership in supervision particularly at night in the in the hard site we have evidence that frederick who was in the lead of tear one day were all the plaintiffs were was instructed by big steve to soften up detainees and everyone understood what that meant and our plaintiffs suffered says it rejects the theory of jurisdiction that khaki cites from the mars descent and says even if there is a cohen hook to permit an appeal of something like subject matter jurisdiction that case political question is jesson or tells us the object of that statute solicitude is to avoid the international discord that would result if serious harms that are attributable to night states went on remedia that's what jefferson and sosa say so mari is correct to say that all of the u s base connections here would if left on remediated would create international discord in addition we do have and so that's the the status of khaki as a corporation it's conspiracy with u s soldiers on a u s military base where there is no foreign law applied and additional evidence of reports back to management and man and not acting on the the alleged misconduct and that therefore that perpetuated the conspiracy and there's evidence in the in the record i could look at the summary judgment cites which i have and the but not the  can your honor but respectfully i really i would caution the court aide to take jurisdiction over a subject matter question where there is no predicate basis for an appeal and where this question is not dependent that is that is a limitless theory of jurisdiction that means every time you take you why you're not suggesting that's the basis we're assuming we get to the other way and we have to come to that conclusion that if we get it another way and it's  the deeper testimony this is the transcript fifteen to seventeen and this is again supported by evidence that hopefully we can provide you you've got the testimony of the former employee nelson expressed that serious concerns about do go ghraib who was the person the captain the person on board for several months during this critical time period not bringing any of these concerns the attention anyone to act or falling off of problems and you've got evidence in the record khaki promoted stefana fritz that they fought the firing of johnson they made no effort to contact nelson that's management here and also most of the u s contacts were not in the joint appendix but we have evidence that there was hiring promotion even though they knew they were not qualified from the united states they were daily reports back to the united states and wait they're not in the joint appearance but are they in the record some yes yes or ok yes in the summary judgment record and then there are u s contracts that i mean the focus is with the harms be attributable to the united states and there is ample evidence the demonstrating that there are such substantial connections and this is what role we how it affirms and six it focuses on the relevant conduct that's connected to the claims and so so that foreign entities would perceive if we didn't remediate this harm the united states would be doing something wrong and i think they're certainly including the emirates i mentioned and the evidence off from our three meets that focus of the a the u s government question of u s government sovereign immunity both because our position is there's no jurisdiction and we believe we win on the separate question of derivative sovereign immunity as a factual matter united states is entitle this sovereign immunity they never argued that below in fact they argued the opposite in opposing the government's motion for summary judgment they urged the court to recognize that happened that the united states government does not have status federal government sovereign immunity must be explicit and you agree with that principle don't you not in the context of the a t s which is a distinct statute so it's your position that sovereign immunity the united states does not have to be explicitly way sovereign immunity it refers and it doesn't create independent duties like other statutes is there a case that says the a t s way sovereign immunity no they ts doesn't do you but i would say this is a logical extension of salmon tar because  samatar says if you're dealing with a common law immunity in that case it was for an official immunity not foreign sovereign which comes from the statue but for an official meaning you look to the common law and there's no common law immunity for the sovereign for use kogan is violations and i think the district court just extended that but we don't we don't think the court ready needs to reach it because of the fact down questions about whether or not khaki violated explicit government instructions which the court concluded there were sufficient tribal issues the fact to s otherwise locations of the district court's order are pretty staggering aren't they i mean because they're not limited to contractors they're saying conduct of the military at war  binding for any sue proper statute but if there were a common law cause of action as an samatar here potentially but i you know the government can speak to this i think this is not it was an issue not for the court it doesn't need to be resolved it's but it's possible this can be resolved after final judgment and your red lights on that can just to be clear what is it you're asking us to do we're asking you to dismiss this case for lack of appellate jurisdiction rekers version gives you the last word fundamental misunderstanding of the nature of sovereign immunity and its disregard of the ample case law in both the supreme court in this court making clear that any waiver of the federal government sovereign immunity must be expressed in embodied in a statute and acted by congress there's no basis for the court's conclusion that a waiver of sovereign immunity can be implied or can be found merely by the by the existence of the united states as a member of the community of nations where it's entrance into non self executing treaties or any of the other observations the district court made about the government's interaction on the international stage those are not a basis for finding a waiver of sovereign immunity permitting suit against the government in federal court in that district court misunderstanding about the nature of sovereign immunity should be corrected by this court the district court went out of its way to reach that question a question it not as addressed a question that it simply got wrong when the basis of that because the soon we agree with you that it got wrong what's the basis of our addressing of us having appellate jurisdiction to address that question your honor we've not taken a position on the the plaintiffs argument about this court  so we don't want to address those questions you just say i said we should fix it so yeah and so how do we fix it then you're going to the position that we've taken your honor is that whatever this court does in this case if it addresses in any way the district courts decisions and we think that the government's sovereign immunity has been raised on this appeal because of the defendant's arguments about their claims to derivative sovereign immunity so whatever that this court says about the appeal we eat unless unless the court dismisses it for lack of appellate jurisdiction altogether whatever this court says we think it would be appropriate to correct the district court's misunderstanding on that basis because it is such a fundamental error and it was unnecessary in the in the st instance the court didn't need to to go where went especially in light of the ultimate disposition of the claims against the united states which were properly recognised not not a problem for the court at all and we just think that if the court addresses in any way the defendant's arguments you should also a drowse the fundamental misunderstanding of the district or its statements about sovereign immunity in international law so you don't have an opinion one way or the other the government doesn't have an opinion one way or the other is to whether we have jurisdiction over this appeal taken that position in other cases your honor to be taken a contrary position i don't think we have taken a contrary position to correctly i will say however that we have not typically sought to appeal but it what does that mean you have not taken a contrary position directly so you don't think your honor that we have ever said one way or the other in any of the cases that i've been involved with that i'm familiar with that the united states either can or cannot appeal the denial of sovereign immunity in it on an interim iraqi authority basis but i will say that the the practice of the united states is pretty clear that we have not sought to appeal similar new just put i don't i don't think that explains it necessarily it think this is potentially a difficult question and it's one that i had it again we didn't address in our brief and i'm not authorized to take   civic position on in the context of this case so i'm i apologize i can't answer that question more directly if the court has no other questions about the sovereign immunity decision by the district or we may please a court just bottled up on the asked plaintiff's a very direct question where is the evidence of domestic conduct violating international law i sympathize with plain as counsel trying to pull that together right here but we're not here on an empty slate we all filed briefs in this case and plaintiffs had every opportunity to try to challenge what we said in our briefing that there is no evidence of domestic violations of international law and you know a page thirty six of our opening brief we provide myriad j a cites that stand for exactly that principle of mr oz me talked about what they think might be not in the join but could be somewhere else in the record you mention mr provide as nick nick was in iraq it's not domestic he's in iraq mr amin mentioned daily reports those daily reports every single one of them says court decide our g r nabisco those are not necessary so not a silly jury question when the record is clear that there are whatever the focus of the statute issue is there is no evidence in the record of it's a subject matter jurisdiction issue that may be right it it doesn't have an independent basis for appellate jurisdiction so if we agree with you hook line and sinker we still have to have appellate jurisdiction you agree with that we're not aware the united states have said that that's because the united states army immunity is a defense to live building that argument is not available in the circuit with respect it room unity because this court squarely held including him that it's a it's an immunity from suit i see my time is n