clear analytical vehicle for just passionate analysis of a foreign sovereign immunity going to court need not engage in any factual analysis of degree or nature of force nor should the district court do any balancing in alleged facts shoots every single protester because they fear their terrorist or terrorist supporters and they want to make the place secure when the president would be a lawsuit for that that hypothetical if it's assassination that may be a horse of a different color why do i know if that's assassination i've given you the description i mean you and sackey the facts we have assassination will be someone's label or not what we do know is a a gun was taken out and all the protestors were killed and or the car arrived before that i don't think that the car's arrival is necessarily an important analysis for the court to undertake because  all you're doing is saying someone might argue and we're saying someone might argue that it's a violation of international law or crimes against humanity but you would still argue that it falls within the discretion or exception is that function example is that  for just absolute immunity for foreign security details you know you don't know that unless they if they i guess if they if they announce and they're assassinating someone they don't get it is that the only exception  let me give me another example when in your view i they're probably want to pronto would not be satisfied if you have a presidential security detail and i'm going to say the president is in the area whether he's right there or on ridge and i think if the president is on the roof or in the area and they are as they have been alleged in this case acting in their role as presidential security then the immunity  is is going to be very very hard to overcome i would really like to know what you're very very hard to accept and i'm really what i what i'm lost from when you're in the break in this case is what would have been a minute what what actions going to foreign security detail take i'm assuming the president is here in the area so you wouldn't say if they did it two weeks before he arrived here in the area at the white house but getting ready to come function things such as assassination things that are against international law things that have to do with espionage some of those would would fall outside if it was a private act so just that's the difference between assassination and just murder of civilians it's it it's a public policy question and it's also a issue of it well it could be but it really depends on the discretionary function of the actors and so just my question is murder by so many details innocent civilians and the hypothetical is there is no provocation and my my view on that is the the murder which would be the death of those protesters protesters that you're referring to is innocent civilians is just the with one change the protective detail members raped one of the protesters across the street when they crossed the street is that  also protected by immunity i think the answer that you're that will interest no i think the reason that is the initial threshold analysis is what's the conduct and here the conduct is not as the court found below presidential security there's no part of raping someone that is presidential security and so as a threshold matter it's not presidential security so you don't have to get into the two prong analysis of and in discovery it is that president erred wand and we've all watched the video that there's a conversation between him and some of his guards if he said i don't want to see these people when i come back people in the presidential security team judge henderson i did up believe it does make a difference and the reason it is internationally protected person is there's a large sort of group of people that fall in that obviously the president of the sovereign nation is the top is the th of the spear as it were but there was embassador there there were other members of the ambassadorial staff there are other supervisors it all still falls within that same r defines what the scope of authority of foreign security details are when they're in the united states as opposed to the u s secret service you know i'm not aware of any manual or things that would prescribe the actions of the foreign security details in fact i would reference plaintiff's expert analysis what they have submitted and what i meet i've submitted to the court is they don't really even claim that there is such that sort of i prescribe prescribed set of rules and regulations as relates united states and that's what i'm trying to figure out right there's certainly seems like there's rules governing the secret service here and  and the question is there must be something somewhere and maybe it's just kept confidential for reasons the secret service is ultimately responsible for foreign dignitaries in the united states and then the foreign dignitaries may bring their own details and what i'm trying to figure out is what is the relationship are they in if i'm  the secret service says she's now a threat to just walking by pushing a baby carriage of the foreign service detail says we think that's a threat the foreign service detail has the authority to of others foreign nations there and actually protect a person's there's nothing that says that you are essentially giving up your power protecting your your country's president or i that says if that's the price if the vice president would feel more secure as long as there were no protesters within a quarter mile protesting upsets even peaceful protesters upset the vice president of the us this is a hypothetical vice president to be clear that hypothetical vice president says i just feel unnerved and worried whenever i hear chants from protesters push them all back a quarter mile congress in authorizing the work of the secret service constitutionally pass a statute like that i think the answer to that is no there's a couple reasons i agree i agree i agree that that would violate the st amendment so can congress set up a regime where the executive branch can either of them constitutionally set up a regime in which foreign security details can suppress speech in a way that the secret service cannot use and constitutionally permissible for either branch to allow that congress cannot authorize a secret service to enforce security in a manner that violates the st amendment here there might be other violations too we'll just go with the st amendment against peaceful anything that i don't know what you mean by they had to know that my question's very straightforward i think it's a yes or no constitutional questions of congress cannot pass a law that provides for security in terms of violating the st amendment details can violate the st amendment the it said if you give me more than i can your honor because what the courts have said and what the congress has said is that because they are foreign sovereigns they are not bound by the same restrictions to follow the united states constitution and in this case d c law as americans are and so congress has already with the foreign sovereign immunity act and with comedy and all that comes before it they have already given foreign sovereigns in this case presidential security details the opportunity and the ability to do what they need to do even if it violates american law authorize on their governmental act foreign governmental actors to violate it just and outsource it to foreign details the constitutional violations they're not authorizing it your honor but they are permitting it under foreign sovereign immunity right in the ask a question about section one hundred and twelve the district court said that it would assume without the citing that the protesters were so the district court said then it wouldn't matter that didn't matter that even if the protestors were in violation of that statute your brief you argue that it does matter or at least you saying that that protective detail asked them to be put back one hundred feet they did and in that kind of factor it into the actions that t protective detail took so explain to me kind of what your legal position is on section one hundred and twelve and how it's supposed to help us decide this case one way or the other they had a legal duty to enforce th they should have pushed back anyone that was with one hundred feet of the rest of the church property or d the turkish internationally protect people's and so they didn't do that and in the presidential security function which was a district court here found below and played just say i've made clear in over one hundred and fifty dollars references in their complaints and filings is what was happening a presidential security function it's just one of those things that shows how the presidential security function was being carried out to get us to the berkovitz analysis because they the presidential security detail for turkey had to do you had in the sense that they use discretion but they were using their discretion to do that thing which m p v and united states secret service uniformed division were not doing that's how i think it it ties in to the analysis i don't think it's dispositive if they if the secret service and m p t had done their job or if they don't do their job that is somehow you follow up on that i'm sorry john bolton's go ahead so your view is that they have even if they even if they didn't consider the protesters a threat but they got out there tape measure and found out that they were within one hundred feet they were ninety feet away from the residence your position is that the fed and the foreign security detail has the legal authority to guessing that district courts not permitted to engage in what they are doing is exercising their discretionary function in part as part of the presidential security detail which is the bedrock of the national security important for the for the analysis of the starting point what is the conduct what are they doing and the fact that u s wants foresman secret service n p t are not doing that is one of the factors that's right be considered the presidential limousine had long since passed how did the security officials going up covering her mouth grabbing her arm and tearing her spine up how did that for security for the president how does that make the president president iran safer presidential security detail there is a continuing course of conduct there's a corporal of found there's a st incident this nd incident now where over at the ambassador at the  yes you have one of them being where you have one person in the presidential lean limousine and why you said you open this by saying sort of a private attack would not be protected so there must have been some sense in which they were just acting privately so there was much me some sense in which they thought that was necessary to keep the president sa more secure his presence here more secure and what i what i would start by saying your honor is number one we don't nd guess and have to ask that question it's not a question about how does it make it more secure what if it was the day and president know just acting on their st amendment rights and anyone who's driven down massachusetts avenue any day of the week in washington d c can see these types of protests on either side of the street this is a routine part of the fabric of the district of columbia there are people protesting perceived district court didn't apply it directly because you say that the st prong a berkowitz was unsatisfied whereas a district court said that the st problem was satisfied right the district court put prong one for a moment your position is that because the district court found that the protective detail committed assaults and assaults are violated one of district law two and they were there were two more than two of them and they were harassing foreign official  protective detail pushed after requesting the u s law enforcement to do so and u s law enforcement refusing to enforce one hundred dollars foot boundary they went across and all they did in my hypo is they push the people back more than one hundred feet because they consider one hundred dollars being within one hundred feet a threat  thirty feet however many feet it takes to get them more than one hundred feet away that's an assault right yes and i think therefore i mean one st they're not entitled to enforce d c law that's a matter that is a to the d c police and the secret service they would be acting outside their discretion so under the red l case they would have immunity verbally even though congress has specified that these people shouldn't be within a one hundred feet and they feel that that's not just a violation of u s law but a danger and they push them back  who had an interest in forcing laws because you feel like you know you want to take it upon yourself to enforce the law they're trying to protect the president the head of state they can't do that and it's clear that that's the practice of the state department and the foreign agents know and are told that they have to abide by local law and it's very clear the state department set out in the foreign affairs manual that they will import criminal laws investigate asper waivers and prosecute to the fullest extent of their so where let's suppose one of the protesters is is holding a gun or rifle which violates local law in the protective detail says go arrest that person and seize their gun and they don't in a protective detail goes over and tackles a person and takes away their gun the person sues for assault a gun they're holding me down by their side and they say arrest that person and take that gun away and the secret service doesn't and they run over and they grab the person and they knock him down and they take his gun away those are the facts so that person susan and the protective detail in turkey they're not immune and i think they are not immune but they put on trial would likely win on the merits i think they are not immune because it exceeded their authority to act but i think that so they don't have authority to knock someone down and take a gun away from them that's that's that's under  hundred feet away from their head of state i think that is something that one person in here and overseas i think rapin probably comes up all the time and one of the consequences are that sometimes they're put on trial for excessive borders and and the jury will make the determination of whether that conduct was reasonable and whether it exceed you know i think and i don't think there is a mutiny if it's an assault nothing in this case it might not be an assault ok and i ask you what if the same thing happens in istanbul and our president visits and the local authorities do not take a gun away from a protester that is near our embassy and the marines guarding our embassy ask the local law enforcement authorities to help and they refuse to get would be the exact same thing that we just discussed and kind of one and a wrinkle is that most foreign states have a blanket rotorua tour exception to foreign sovereign immunity and we haven't found one where there's a similar discretionary function so that this question of discretionary function a ctually doesn't come up because the states that have a territorial poor exception to immunity don't include so this debate wouldn't come up at the debate of whether i think our secret service are told that they have to obey local law and i think if they don't then there will be consequences and presumably if their conduct is reasonable the same thing will happen as with john wilkins i think that i'm not understanding your answer what would happen to the marines who left the embassy and with force either took guns away knives away whatever what would happen to them in turkey in turkey it would depend on the turkish law on sovereign immunity not familiar with that law but my understanding is almost no states include a discretionary function so if there is a who are if that would qualify as a tort then they could be liable under turkish law and i would not not an expert on turkish lots of immunity law tort law right and so he's not totally understanding the whole point of discretionary function isn't there some discretion that has been of conferred on government officials right who has to confer that regulation or policy governs the conduct of foreign security details what comes st discretion on them i think the outer limits of their discretion would have to be u s law me where is a statute that authorizes foreign security details to take measures against americans when they're here is there an executive branch a state department regulation a state department policy a state department manual that says something somewhere must say what they can do because otherwise i shouldn't think they would have authority to do anything other than we're asked with secret service to take protective measures well my understanding is an under u s law to obligate and international law the obligation to protect a visiting head of state rests with the united states with the host country  rests with the secret service and the garment of state and and when he has they conferred on foreign security details what role did they a lot to them in this process there's nothing in the record that's been submitted by turkey that indicates that they received any authorization to act in any manner so nothing's in the record about that there's no nothing in the record here on any law that has conferred any discretion on the the turkish security detail i don't believe so it's my understanding that under international and u s law the duty to protect a visiting head of state rests with the secret service and undergo national law rest with the host country can you have a discretionary function without american law and some form conferring discretion in the st place interesting question then suppose the answer may well be no and there is no space for example that's a blind the presumption jew in the office and a context there is no evaluating whether or not turkey acted in accordance with  standard operating procedures or in accordance with any regulation or in accordance with any authority that was designated either by the state department or the government this is nothing in the record on the at all in the senate you know if it's worked out on a case by case basis before a foreign dignitary arrives what the respective roles on their own security detail and domestic law enforcement domestic security will be my understanding is that it is that's not in the record in this case but my understanding is  that's exactly right don't know but didn't you go ahead i'm sorry but then you argue below those through your experts testimony and your briefing and you know you argue in your briefing before us that we should look at kind of the state department manual and procedures and what that allows and doesn't allow and that that sets the boundaries for what this turkish protective detail are allowed to do i mean that hasn't that been your position throughout this litigation our position has been that if you go on problem one that it's  testimony and all of the stuff in your briefing about state department kind of manuals and procedures with respect to protection of i guess u protected persons well the element as to you wrong too is the court found that the object of conduct wasn't related to protecting the president that they pushed through the police line ran after the plaintiffs who were running away shouted i'm going to rape you the women unconscious and kick them when they were unconscious and trick them into seizures and that objective conduct wasn't related to the presidential protection detail i think what our experts and the standard operating procedure for protecting our president is to take him away and not run out and attack other people but to coalesce around the president and remove him from the danger and that didn't happen so our experts argue that that showed there was a risk but i think the district court's decision was grounded in the objective conduct which as she looked at the entrance of turkey who pushed past the police line of the video is very graphic where the agents pushed past the police officers and bloodied some of their noses and ran across the street rand women who were running away holding their children shouting i'm going to rank you as a woman ran across the street and you can see your stroller capsized on the grass and she ran away when they were shouting i'm going to rape you or who the law isn't that a finding that they abused their discretion that is a finding a nd part of the nd prong would be this is something that congress never intended to shield from liability is that correct that's correct you like function but if the rangers had taken a gasoline can and a match and burnt down the tractor of the you know of the cum logging company the court can certainly look behind the facts and say that's not discretionary function  controlled burn is a discretionary function but arson is not and that's really the same thing that happened here protecting the president is a discretionary function but what happened here is like arson it was an attack on st amendment protesters were standing exactly where they were told to stand on the sidewalk holding their signs and the lacie were common example is a clear example of that this was hours later she was chanting a pro democracy cheer outside embassy where she was told stand and there's a picture in the joint appendix that i think to that shows the agents with their hands over her mouth and whipping up their spurs signs and the district court correctly evaluating this conduct and found it wasn't rationally related to but i do so with respect to the nd incident let's suppose that that that that the district court had filed found or we believe that the evidence clearly shows that the protesters were in violation of section one  what relevance does that have has no relevance to this analysis well one tool does have a carve out for a st amendment protests so i think they were breaking that if we find that they were you're saying it doesn't matter when he does not impact the immunity determination ok and that's because the protective detail if they believe that the local law enforcement is not really enforcing local law they can't take that into account at all as to how they protect their protectee i think things certainly can but what our expert said is that what would have happened in that case was he would have removed the project and that the appropriate response isn't to run across the street hit women until they'd follow me around unconscious and keep kicking them while they're lying there or in a kick people as they're lying on the ground and chase people across the street and shops and it is at them while they're running away with their children that there are certain steps you can take within the law if you thought the n p t wasn't adequately doing its job but one of those steps is not to commit assault on people who are standing exactly where the police told them to stand and that's important to remember in this case the plaintiffs were told to stand on the sidewalk by the n p t and that's where they stood this the nd incident there's no question that air to one was in sight at that point right i believe he was here arrived at is our before it started and then came out of his car and walked into the residence ok but the nd one where the surge came from the protective detail across the street he was you can't tell from the film but he was nowhere outside he what he did left a car he'd maybe we don't know maybe he was still but you had those gates and you had the fans other words i'm just trying to figure out there's there was no way the protective gear tail could say he was in danger imminent danger or any kind of danger for that matter well that's what the district court concluded and i think that's what the video shows the timestamps i'm not sure match up quite exactly but it seems like happened is he arrived he was in the car the incident started while he was in the car he got out of the car and he walked into the residence right that's why i think there's a good likelihood he said i don't want to see what i come out but ok are there any more questions no ok all right let's see why don't you take two minutes thank you very much your honor but this i to make a couple of points if i may in response to the argument of the counsel one statement was made which is that there's nothing in the records submitted by turkey and i just would like to reiterate the burden is on the plaintiff not on turkey there was a misrepresentation of the law underneath which is that somehow foreign nationals are constrained by united states law macarthur says otherwise and i think there is a clear sort of meshing in place this argument between the f t c ebay and the fs while similar not in any way identical the example given about the f b i and the american reservation on the turkish security detail to operate on americans as opposed to simply securing the president by not coming by driving away by  means you're immune from the courts i mean you're coming from the courts the state if the state department said after viewing this video get those people out of here and they may never return they could do that right and you would have to comply with turkey would have to comply with that correct yes you're right and so it's not as though that turkey has a legally conferred by congress or executive branch right to say right not to be hailing the record doesn't mean the united states government can demand reparations doesn't mean the nice things government itself could impose some sort of sanction or punishment or consequence correct correct that's ok but you're not immune from the law you're immune from the court just so you can i'm having trouble understanding how the foreign sovereign immunity zax is a source of law conferring legal discretion on the turkish security detail who act on american civilians common it's the it's the discretion between nations druggers very accurately identify other avenues that are available to places to build american you primates by international law statute cases recognizing the authority of foreign security details not to just secure their person by driving away by not coming at all if there's a security risk by rushing him into the building but instead to reach out and i understand that ok i guess i'm not aware of any i know he thought there was some sort of positive law that conferred discretion on governmental actors and we could look to some we would know what the scope of the security marines that rush out of the embassy to protect an american president just him right that that's where that that that discretion comes from we go to simple we americans go to stempel and our president our secret service  they're given discretion to protect our president and so when the president of another nation like turkey comes here we evolve or that it's a true that the marines can leave the embassy grounds their military force i thought if they left completely failed to help the answers i don't know that you're a less stressed but to keep it more sort of in line with where we are with presidential security if our presidential security united states secret service or united states department state which are tasked many the same regards  as as the secret service were to rush out of our embassy or the or the residence and take the actions that came to this we would under international law to mend that discretion for their actions enable them to have the immunity that turkey has here in this case what are your orders absolutely correct that if there was a turkish national who claimed that they were hurt in the or that they had been injured in some way and they had on my last question but it's kind of like you said earlier that and this would make perfect sense to me that for a foreign dignitary arrives there's a negotiation between the fact united states government and the foreign government on what kind of security and security of the government and what their role is but no one has put that in what what was arranged in advance in this case no one's put that into the record and seems to me that would be the may have different as well the turkish security forces had the discretion to protect their president and the court was correct in it it's an initial thrust old matter it was correct and it's part of it's problem one analysis and it was mostly there on the on two analysis the problem is by the court err by adding in this sort of violent acts or greek situation where the court went on to say the turkish and this is j four hundred and fifty five the turkish security forces had the discretion to protect their president but they only had the discretion to err to some degree and that absolutely captures the problem below in the district court which is a district court is entering into exactly the type of nd guessing the governor said it cannot do district courts or seven hundred dollars m across the country each district court cannot that when we start down that road we are bringing international relations to a screeching halt there is nothing more susceptible to policy analysis national security there's nothing more important in a single sort of point and national security than the head of state and the protection of that head of state and what that means in international relations and so the problem becomes congress a louse an abuse of discretion to be tolerated but that but the district court erred and i thought it was just too much and that's not what the statute says the discretionary counsel both and your case is submitted