please the court my name is mike and often i represent the appellant arius rod mohnish this case is about protecting an american from iran's brutal treatment of anyone it disagrees with or wants to outside of america under well established bounds of international law it creates a cause of action for that very purpose the court takes the alleged facts as true given iran's failure to appear and the default judgment past the family when he was conscripted into the military and we're not making the argument and compare it to the military of not being held hostage and it's not we're not making that argument ok i believe it should be behind the plan when has he been held hostage yeah you're held hostage your honor when when you are one not allowed to leave your detained what does being held hostage means it's detained with a threat to kill or continue to detain and compelling that person to do or refrain from doing an explicit or implicit condition or release hostage and that in the whole of the all of the time here when he would fail order it is by itself both torture and hostage taking it is requiring him to commit an act in in order to not just escape but in order to live thinking within the meaning of it it is big because what what they did was they came up even short of releasing kill or be killed is now we're not even telling you we're going to release you as a result of this but you will die because we're holding your point if you don't commit what is effectively a war crime killing somebody in their sleep who's not engaged is a war crime under the geneva convention and so it's even short of we will release you it's you don't survive this moment unless you commit this war crime it's actually not a war crime if you kill members of hostile forces in an armed conflict when they're not actively fighting you have to accept a surrender but you can kill you can kill members of hostile forces when america when they're sleeping that's a horrible thing is a much closer call then than torture is it because there is not there certainly not an explicit condition of release tied to do it that there were arguing is that it's an implicit if you don't do this you're no i'm not going to be released and then backing up to his family i do believe that's relevant because you can be you can be prisoners in your own home they were and you can be hostages in your own home even though it it is from it his dad not him directly so i think all of those in totality are our hostage taking but it medically that's a much closer call been torture  torture it is is not a close call because you need an act by a government official that's undisputed here certainly after he was conscripted that's undisputed who suffer severe mental or physical pain or suffering and rd it it's intentionally inflicted meaning it's not just a broad order in the context of military it's not just a broad order this court said in price that that is a non exhaustive list as to the the intent element the st elements on distributed amicus and the district court kind of gloss over the rd element the intent element particularly in the kill or be killed order the kill or be killed order alone a stablish is intent this was not a broad order to his entire troop or to the ira and in the area in general to go do these things he was pulled aside told he was going to be an american martyr in this mission and then he was told at gunpoint to go kill this sleeping iraqi soldier that isn't didn't he was singled out and he was told to do  war crime aside it is universally condemned to force a soldier at gunpoint to go kill somebody else suppose oh she'll have a group of soldiers in the field and they come across uniformed member of the enemy who is sleeping and the commander says to one of  people in the group go go kill that enemy soldier is that is or is that anything other than what just unfortunately happens in war as a matter of course not necessarily it's it wouldn't it wouldn't necessarily satisfy the the intent element or the spirit element because it's simply an order there's no there's no punishment associated with it there if you're not told at gun point it's not a killer be killed you know the middle of combat if the soldier just so base a lawful order  lots of very harsh things can happen to him so this they're then making b or b killed hard if this explicit doesn't seem like a big step from normal war time horrors well it certainly does if you're fused to obey the order because if you believe the order to be true that then you will die as a result that there are consequences is it is a fact of fighting in the military in a fact of being at war no doubt but to hold a gun to somebody and say go kill him is implicitly if not in plot if not expressly saying kill or you will be killed it is it is worse than a form of russian roulette which is torture but your two are term of mental pain suffering refers to pro well it's prolonged harm resulting not prolonged torture so the the totality of the torture or the length of time that he is tortured is not what the prolongs focuses on it's the prolonged harm resulting that's it damages and we if you we did broadly as you seem to be then torture becomes anything that has happened to him that might be bothering him for a long time can it possibly be what that of murder or be murdered kill or be killed it is it is a psychological it is a psychological game that is far beyond any bounds of appropriateness it would appropriate if the american military did it iranian military any military in this world to hold one of your soldiers at gunpoint and say kill or be killed so you have thrown out the phrase universally c and is that with reference to the kill or be killed order requiring someone to play russian roulette as included within the acts that that ok torture you have to district court cases and that's it yes i don't have a case talking about kill or be killed orders  well i thought it was my a citation to an international convention center and in response to the points that judge katz of his questions were making don't you have to overcome that gone that far at least sixty but yeah i don't have cases saying that a kill or be killed order is is not that either i don't have either one well that's what i'm trying to understand what do you need to show and we have a series of cases including ringback an understanding of why these provisions are construe know it seems to me that means that you have to come forth with something and with all due respect judges may disagree on whether there is a statutory my lation that's our cases indicate where we were st a district court judge that's true but but he's a he's in the household so it's true your honor i what do you have there would indicate an incident or incident in which this played if you torture that the kill or be killed or order i don't think any of the other incidents by themselves would constitute torture i do not believe that are you thank you you're abandoning the claim based on the beating i think i think the beating gives good context for how he was how he and his family are treated since one thousand nine hundred and seventy nine it's relevant for that it's certainly relevant for him at least but it's not enough by itself i don't think it's enough by itself and it's it's debatable whether some of be representing and he gets thank you very much we appreciate your assistance to the court suggest that the moritur ink or program probation on international travel meet the custody problem within the meaning of torture multiple d very this court has repeatedly made clear that suffering alone i is there any can you imagine any circumstance in which the government government sends out a group of five to beat someone up they don't take him into a traditional custody they just go beat him up and they don't use any torture implements they just punch him and chicken is there any for beating on those set of facts that so we said in price that sustained and systematic beatings can count and we also said that the key key determinant is the degree of pain that's inflicted i would think if i did particularly the latter point would imply that you could have a you could have a one time beating that is severe enough to amount to torture your honor that this court in  positions but from the ceiling repeatedly denied medical treatment and so even in that hypothetical we don't believe that that would meet the severity requirement that the torture  foreign governments were then the jurisdiction of u s court morality cases involving kidnapping murder genital electrocution solitary confinement with no purpose at all not tied to a rational imprisonment it can be easy to look at  extremely high bar that iran has set persevered and torture including of americans and say well this one's not quite as bad as the others and the problem is it rewards iran for setting their own bar so high for torturing americans who happen to be in their country or not even in their country when it's some os or others that kidnap them and it's they've set the bar so high that the fall short of that is something less than torture the kill or be killed order is as severe of psychological and mental torture as you can have it is not it is far beyond russian roulette it's not play a game and you may get killed it is kill or be killed it is forcing someone who is unwilling to do so to go murder somebody if that order had been to the iranian soldiers in general it undoubtedly would not satisfy torture because it wouldn't satisfy the intent element but the kill or be killed order at gun point by itself is not only severe but it also satisfies the intent what that is worth and whether that longs harm in such a way that it is worth x dollar amount is a damages question remains which remains to be determined by the district