months to compile a confession in this case addresses the same core misconduct as goods and innocent american citizens seeking redress against law enforcement agents who were given gross misconduct to obtain evidence of a crime dismissing under special factors would create a gaping exception to begins for american citizens abroad it would create the perverse incentive or perverse result that law enforcement agents can violate the fourth and fifth amendment rights of citizens abroad with impunity and fish judicial scrutiny more forcefully in suits against law enforcement officials implicating national security a bit is ready must be available because this case does not present a new context and because even if it did mr chavez no alternative remedy and the balance of factors weighs in favor of recognizing a bit of its remedy further defendants are not entitled to qualified immunity because the right of a private american citizen to be free of monthlong extrajudicial the tension  explain this case is distinct from joe which was focused specifically on the car in the context of military detention of a service of a contractor so effectively of a soldier in a war zone and here inquiry this is precisely the inquiry that federal courts conduct in criminal cases where there is an allegation that evidence pained by foreign agents was done at the characterize this differently you say this is a criminal investigation and national security doesn't make any difference snoozer outside the united states because any of those kinds of cases would involve to some extent the foreign relations component so i think there are two factors that may and this is a close case i'll say that at the outset two factors that may make this different one is abroad that it's happening abroad and to the national security component and it's more than just a vague allegation of national security it's suspected member or supporter of al qaeda in a not congressionally authorized war so those two things together or are you a boy the government would say a new contacts that we should be cautious about extending bit into maybe just one of those two would be enough for the united states not enough if it's a broad but a drug trafficking investigation maybe not enough but the two factors amendment how the fifth amendment applied officers in these circumstances is going to be some black and white there's going to be some gray area i assume as to what they can and cannot do it won't  for doing what they might otherwise do in the gray area and is there a concern that we should be worried about that congress should be regulating the grey area in a war time war related out for well i  sense that we're to recognize a cause of action in this kind of context nothing with event congress from changing now wouldn't i mean it is not constitutionally regulated in and other specific areas but it's never with drawl i mean remedy in other words if we rule in favor of yield in congress and the supreme court either agrees or doesn't touch it could congress withdraw a overturn the decision i think that was to have to actually go i mean our own provide nothing and provide nothing our position is that too for congress to depriving a citizen of remedy from law enforcement violations events and that they in some sense ratified it at that time they would have been looking at a bit of ins that was domestic that probably didn't involve national security and doesn't that  at least raise the question of whether congress would do in this circumstance and other words that they might not have ratified this kind of damages action  if this were a statute of givens were a statute any person injured in violation the constitution has a cause of action against the official for compensatory damages we would apply the presumption against extra territoriality to that statute least of most recent supreme court case law and would conclude i think that the statute but given statute does not apply broad absent some congressional and they recognize there was not a statutory cause of action there that was a common law cause of action but nonetheless applied presumption and you raise a good arguments about why not to apply that here as i think that's that's another close issue here i think is how it applies here you've raised a couple times what that this is one force but not national security but isn't that a isn't that either or not realistic in the way the f b i operates today and has operated post september eleventh in other words i think you have seen presidents and lots of attorney generals have said that one of the tools in the war against al qaeda is the f b i and domestic prosecution s divide that perhaps used to exist in some to some extent doesn't exist anymore because a lot of what the f b i does is assist in the war effort while our and our position is this was a law enforcement investigation that may have implicated national security but i mean if you look at the these specific allegations here they were day after day  suspected whether rightly or wrongly this suspected that he had some involvement with al qaeda yes i did so i did some more as a law enforcement investigation with national security implications but  because the extent the f b i is increasingly involved in national security incremental investigations if there's a big there's a huge area or a gaping hole for u s citizens who have no running if their rights are violated by law be encouraging it's not to use the f b i in in these kinds of activities encourage it to the executive branch when the executive branch has said repeatedly that they want to use the f b i and want to use the criminal process to assist the war effort floodgates would not necessarily open and you know this kind of hypotheticals coming but a u s citizen can be tortured or killed abroad by an f b i agent without a remedy under your theory  the case well i think that a couple of places that run i think first of all the who or recognize that individuals citizenship is not sufficient enough itself whereas the us citizen would not have a constitutional right a broad against the united states all that's true now now i think it's also true that the manner and extent constitutional action might apply unite citizens abroad and obviously what's reasonable to me may be different but did you know it's troubling to think about the f b i can just and cia on your theory anyone any us official can of the notion that there's simply no extra territorial application at all and look to your slightly narrower ground that will this in case foreign relations hand or national security how do we know in this case that national determination of someone being an enemy combatant or suspected an enemy combatant is there any kind of practice or policy doing that or are we just going on these more functional questions which are very serious and i wan about that so we have the general statements by a very able district court judge hypothesizing about what might have to be gone into but we also have extremely  refined expertise in our district courts about how to deal with national security problems we have you know touch bases opinion obviously dealing with his petition very similar issues and again not you know times but this wouldn't be a new category of defendants nor a new kind of cause of action no i disagree with that your honor it would be and you and so forth i'm a safe just focus on the fourth amendment a fourth amendment claim harsh just on your position can i ask if this had happened in the united states what was national security related in the sense of suspect ways we might or might not answer right especially now why isn't it to the extent given this is a deterrent of behavior that we as a system as a country want to be deterred why isn't it good to have a bit and try to be for these kinds of situations with qualified immunity as counsel rightly stated as the backdrop that provides a lot of protection and running room in the gray area for your clients well i mean i case you sense it is because of the specific allegations it asserts in particular this notion that the war is going to resign over litigation exploring our relationship with governments i mean no foreign government that he's going to go for no foreign government is never going to want to is all right with us and counterterrorism is that the only problem here that because it would call into question relationships with other countries because there are a couple of different allegations here conducted pursuant to national security policies and authorization but you let me ask you about that because the government says that repeatedly but so i have a couple of questions about that one is at this point you acknowledge that this is very early on in this case and so are we required to just accept the allegations in the complaint at this point and what the complaint says is this is a practices i mean we are the hopeful law enforcement machine at this point so that's a very broad brush not so our whole life i believe this is more i guess the national security rationale but and i don't i mean i think it would be senator leahy was going to require cutting off litigation is you know in the name of national here is a very it's it's it's still i don't think it's for foreign relations let me ask you though if we hadn't mentioned before that you thought the detainee treatment  was somehow a bar because it indicated that congress did not want a claim like this to go forward and i actually read it differently given the immunity provision which i mean it's very interesting because your and then there's an immunity tradition because of course people working in in the government were concerned that would open them expose them to liability and the immunity provision says no ilian can bring a claim civil or that it is simply declaring as a substantive matter the united states position on torture cruel and human and degrading treatment and at the same time providing an immunity by an immunity that if you knowledge i if for sure right here where we do not even have a statute the question is whether there is a my time has expired but i'd be happy to answer questions that were asked i just have one question about it's of the practical ah consequences for the government any any information i think you can point  to have this you have no time remaining that will give you two minutes if you need it thank you your honor very quickly of an interview parts we know exist that there are national security missions but this was a criminal investigation i would point you to again the treatment of threats second the f b i has the dharma perelli brief amicus makes clear is bound by the constitution and that's all that is in question here the f b i treatment of a u s citizen in violation of the constitution in terms of here we're not talking about the military we're not talking about the cia we're talking about misconduct by law enforcement agents and congress make sure that the ins remains as judge nora pointed out the implications are of the government's position is that this would apply to all extra territorial misconduct by the f b i abuses detention and torture because the f b i always needs the permission of a foreign government to operate on  so you are you make and you make very forceful and good arguments here and one and i think as to reiterate or that it's a close case one thing i'm trying to figure out how to factor in this market be an easy question to answer but if you just step back and look at the grand sweep of the supreme court's case law on the events you see skepticism and caution and limits and you see justice souter and wilkie and you see chief justice know you see all these opinions opinions that really say it's not quite this far no further but it's it's definitely skepticism and then you see that definitely trickle down i think in love koran and vance and and it seems i'm concerned the extent i get out of step with that you know where the supreme court's point and they haven't answered this case so i understand that but just the general trend of their case laws then be cautious about non statutory cause of action if i may get this is that those cases are are really different talking about new think the government says they are not looking for that or are you in other words do you know what you're wanting or just say is that in these kinds of circumstances violators the district court concluded by law enforcement agents we're not talking about outward i'm talking about military we're not talking about intelligence officials we're not talking about a war zone we're talking about a very limited category of cases and converse for federal prisoners within the united states we're asking for something that i think very limited and is a on a par with the course mong recognition circuits more recognition of the rights to u s citizens fourth and fifth amendment rights when they were thank you thank you thank you counsel the case