and next matter on the calendar of the last on the argue calendar today is a big appeal from the decision of the district court for the eastern district of new york to deny an application to quash a grand jury subpoenas  last week the panel requested that the parties advise the court as to whether argument could be held in open court or whether measures were necessary to close the courtroom and to seal the argument record in order to protect the secrecy of grand jury proceedings and the parties informed informed us last week that such measures are not necessary at that at this time the appellate has requested and all this is by way of preface that the court made clear before an argument in open court began that argument should proceed without reference to the names or identities a grand jury witnesses the substance of testimony the strategy or direction of the grand jury investigation and what that investigation is uncovered and in the court  does here by direct that those matters should not be referenced during argument before we proceed let me just ask the parties has anything changed about your position from last week that this is a matter that can proceed in open court no nothing has changed ok thank you both for considering this subject and for conferring on a method by which we may proceed and i believe we are ready to proceed with oral argument you good afternoon my name is harold revote we represent the appellant's myself and my partner kathy farming i like to begin the argument by simply saying that the test which we think dispositive here is view look at what the government has said what it has written and what it has agreed to they are the three key things first if you look at what it has said the department of state made it very clear in the document which we've provided the court since two thousand and eleven that the determination of the grant of immunity rests with the sending country whether or not a particular diplomat was someone who's covered by diplomatic community is accepted by the receiving country boils down to the question of whether or not that country wants to forgive me for using the old latin term deem them persona non grata or in the modern turns unacceptable and ask them to depart the country so first that's what the government the department of state has consistently said in fact in the davis case which is referred to in that transcript the united states took the case and all the phone pakistan that's correct your honor involving the pakistani the american who is accused of i believe was a murderer of pakistani and the united states took that position clearly we believe that was a fair and accurate statement of international law second if you look at what the government did in this case although it is after the decision of the district court after a series of diplomatic notes ultimately the government gave all of the workers including one who is charged with a crime the ability to freely leave the united states including one who is a material witness the government notified that their status would terminate at a specific time that's contained in the last diplomatic note which is a part of the appendix which were vital to the court and by that specific time when status was going to disappear they left the country they left it pursuant to instructions in fact in one case the one charged with the crime the question was asked of the government as the question of whether or not registration is a precondition if big because you're on a registration for these workers before this court and the registration for those workers were in exactly the same position they had then registration is not what the diplomatic note that the government refers to requires it requires notification not registration and i submit there are two different things because we look at the state department's view of what this is notification versus registration to entitle some deference it is entitle to deference in one respect but not when it contradicts the clear language of the bilateral agreement between the two countries this court even though the twenty two countries  says that these personnel shall enjoy the privileges and immunities accord it ministry of and technical staff of the diplomatic mission under the v c d r and that is has some other language but those privileges and immunities if they are conditioned on some sort of notification of registration  slash registration is required both two things your honor if i may first it says that they shall have the privilege and immunities not in accordance with the vienna convention but the privileges and immunities accord record of the administrative and technical staff of the diplomatic mission are also subject to prior notification slash registration you respect for your honor no that's not true the privilege an immunit we turn to the diplomatic notes and i submit your honor i don't think that's him biggers shall i think is clear is about but if i turn to the diplomatic notes we have the benefit of the diplomatic notes between the only bilateral notes or the contemporaneous notes it's there that you look at respectfully if you look at the diplomatic notes that exchange between the parties in connection with this agreement from the start china asserts on equivocally that registration was not required unequivocal a states that repeatedly through all of the diplomatic notes i submit that a diplomatic note that preceded an agreement and it's not incorporated by reference in the agreement cannot somehow being granted by the court on as a unilateral document otherwise the united states could obliterate this bilateral agreement or any other by sending a simple diplomatic note in and of itself and the bilateral agreement i submit that's not what the contract to these parties agreed to and i think your honest is the same token foreign country here bruised country if if  your honor and here there are no foreign country i'll beat after the fact but not less notes from a foreign country saying there is no there's no pre registration or freedom of creation requirement and violence and that's precisely correct and there we go with that let me get your take your position since because since diplomacy is based primarily on reciprocity your honor is correct that we have to look to if the american court if the american department of state could create these sets of additional conditions not incorporate in the bilateral agreement then so could the foreign country impose and there is no limit as to what those conditions could beit or diplomacy rather than diplomacy as a matter of executive authority because they have an international agreement they've agreed to between two countries which under the under the supremacy clause is your agreement but you know for administrative purposes in order for us to no before the fact there are diplomatic notes exchanged out or about the time of the application for the aid to visa the visa or the visa application is filed and at that point in time their country sends a the fact that these workers will by by a diplomatic note be traveling on this day pursuant to that no need to comply you're saying the in effect that there's no need to comply with the diplomatic two thousand and three because information's already been provided go look for it in the state department is there and as a general rule we don't don't have to have to have to comply with or not go look for it specifically given for specific workers travelling on specific days for the specific place that they are going to work it's just another just and that was it was compliance with i believe there was compliance pursuant to that provision now the next step is we when we look at these individuals and whether or not this the subpoena should be quashed we look at them as they stand now as they stand having the country actually went up and on the electronic system after this as a as a measure of comedy as described in the diplomatic notes they filled out the registration forms and the united states changed its position it was no longer we want registration now we want answers to specific note from the united states to the country a new or it's the names including more of the individuals who is before this court and says that their status will end at a particular date now respectfully what status are we talking about their status was either a diplomatic status or it was their visa would have effectively be court in the transcript because there are a number of i d s that are relevant and important one it was the tax exempt in the construction aspect one is the tax exempt card and one or more of the employees were working the construction sites needed that's tax exempt card so they could acquire things locally in the united states and those people who are so registered registered in order to obtain those identification the other construction workers did not need that kind of identification they did not need a tax exempt card or state department driver's license and so there was no need for registration but again if you if you look at the subsequent diplomatic notes from china it is luminously clear that there was never their understanding under the cloak agreement that any registration was required and as i said i raised i think the court should look at the diplomatic note with regards to quote registration it does not require registration it requires furring to the two thousand and three no correct the red brief g a o nine that's what that's what you're referring to now right through both yes and it says it was to notify the department promptly of the rival or appointment and departure etc notification is contained in that diplomatic note again six years before this agreement and the note  diplomatic note itself does not refer to construction workers or refers to people who are receiving immunity under the vienna convention  i have a question for you that in the course these notes that were exchanged at the time of the appeal or even after it was briefed were definitely not part of the record for the district court so why shouldn't you what's what are we doing here we are we waiting into something that we should not be wading into should we let that these i know that the the foreign country is not a party to this deal you know we see have an interest in it and they fact even said in one of these notes that we're providing the information from we are representing to the department of state what the construction company thinks the rules are something like that for some reference to that company by name i just try to figure out i'm not sure if it's not just disability or just disability question or just as a practical matter is this something that needs to get we know there's a dispute maybe it should just get these countries before a court starts wading in and saying otherwise well two things your honor first of all so that it's clear the original diplomatic note from china specifically refers not to the company but rather to their view that the cocoa to agreement between the governments does not require notification as there is one the reverse of what it refers to the answers to the questions they indicate was information for vida by the company and i believe that's what the court is referring to that to answer your question we a if you look back at the opinion of the district court in the organised district court gleason clearly says that he is the decision is clearly predicated on his finding that folk registration is required and when we raise the question of diplomatic notes that might come from the other country kind or that thing it he says and i think wisely well if the facts were different that you may get the result and subsequent the facts became different and they became substantially different was one of the reasons your honor why we requested a limited remit for the purposes of the record and the court graciously allowed us to include in the record what's included in the record however there are other factual issues which may or may not bear on the decision that the district court reached and frankly we don't know what decision the district court would have reached at this point given these facts and circumstances still think that we should send when you are the want to move f we move for the limited circuit deny that most that's correct now there's even more notes that have come in after that or at least one more has come in after that right even after the motion there are several yeah i believe there are two notes  you is one possibility which try to figure out the right way to do this is one possibility to remain and it to history or to i don't know to review all these notes and at least in the first instance come up with a conclusion which course could still be appeal what was the reason we moved firm remain on your honor as it was our view that a full record at the district court which might include testimony might include for example the one of the individuals involved in the early stages of the cocoa agreement in terms of why this agreement is unique from the united states as you could court could not how someone from a foreign country t absolutely totally under stuff is a hearing it's kind of a one sided hearing i don't think it's one sided but it's not completely that it's the only way it the foreign country ways  is by the diplomatic notes unless the foreign country chooses to do something which they have not to up to this point although in all of the notes i believe in all the notes but almost all the notes they response if it will requ that the court be notified of what their position is right now you just said testimony ago yes trying to figure out with regards to issues of notification what the state department knew when they knew it those kinds of issues i think might be quite relevant in fact one of the things that we believe the process of notification that the  application requires is for filled by the demand by the state department that there be a diplomatic note at that stage the government relies on the fact that well any two visa is not evidence of diplomatic status it may or may not be that's a different issue the issue i'm making is simply that requiring the diplomatic note that informed them the state department of who is coming when they were coming prior to the issuance of the visa what the travel dates would be what their passport number all of that information is precisely the information that is appropriate for notification i do want to stress however that the china requested as early as april of two thousand and sixteen that the district that the court be informed of what china's position was i also want to make the point response to your question your honor that with regards to what the court should do what is the remedy here i think is what your honest question is there are two issues going on at the same time the first issue if you will is some want between china and the united states as to what the agreement met the second issue is as between these workers and with the interest of china behind it and the united states as to whether they can be compelled to appear and testify there are two separate issues so if i deal with the first issue with regards i can deal with it on the text of the language number one but i can also deal with it with regards to the concluding sections of the bilateral agreement that spells out the manner in which disputes will be resolved and it specifically does not contemplate action in a court of the foreign country or a court of this country it specifically contemplates that there will be negotiations between the parties and as a result of those diplomatic negotiations the issue will be resolved with every respect except whether or not this court will issue an order that will direct workers who are presently in china to do something to compel them to testify with the exception of that narrow area the diplomatic process has proceeded it has reached a conclusion all of the workers are gone from this country including workers who other than these who received an accepted subpoenas they were gone and now the question remains as to whether this court will somehow compel this narrow band who are before this court and somehow determine they're going to be treated differently than the diplomatic process set forth in the cocoa agreement result in everybody else being treated and i submit you should not i submit to remain and is not necessary i believe this court since it renewed reviews this de novo should simply washed the subpoenas dismiss the case and end the matter i think it is from the government thank you i think it's truly breathtaking that what the appellants are asking this court to do is to overrule the executive branch's interpretation of its own executive agreement with a foreign power as a practical  that they would make their best efforts to bring these witnesses back into the country to testify in the grand jury has made in relation to the developments of every sense the matters in the district court my understanding is that's been the promise throughout the appellate counsel have consistently represented to the government that they will make their best efforts certainly they might need the cooperation of the u s state department to bring these witnesses back into the country to testify in the grand jury the government remains very interested in obtaining the grand jury testimony of these witnesses there is no rice they've made in any of these materials that registration is a precondition  immunity this is a district court read the material and kind of came to that conclusion based upon assessing the bilateral agreement and then the diplomatic which is they are to resolve an ambiguity as well as the conventions and correct that's correct your honor so so that raises the question of the value of diplomatic immunity do you start off with a default that these people are immune in which case there has to be heat rather strict statement that somewhere in the materials that the parties agreed that there would be a some kind of registration requirement in advance or is it an act is is granting immunity more of an act of grace on the part of the that authority comes directly from the vienna convention articles nine eleven which both provides that the host country retains certain discretion to either accept or not accept a person coming from the standing state and that is exactly what happened here we wait wait but isn't that do not accept that the same is not really responsive to judge walker's question i mean in other words someone could have immunity seconds or kiss that there is no obligation of the state department to kick out or expel any persons from the sending state who it's not affording diplomatic privileges immunities to now there's a status of being here be accepted but not being given a yeah right in the this case these workers had these as they had a two in g two visas but they did not enjoy diplomatic privileges and immunities the office of foreign missions from the u s state department had not received notification first of all five of the seven appellants and then once it received notification and edition legwork to see are these people that we want to grant privileges and immunities to the state department determined that it would not grant diplomatic privileges and immunities too much state department know where they asked all those questions as far questions who was that it was drafted by the justice department it's very investigative in nature right there are some very detailed questions about who these people are and what they're doing and so forth well was it done is sort of hand in glove between the state department just arm and i think that's part of the record your honor no it's not but i'm curious because it's kind of it's almost written by a prosecutor but it comes from the state department i don't know  mask certainly but the state department the department of justice or parts of the executive branch of the government and there was a certain amount of cord nation between the just apartment a c department however the state department has its own good reasons for wanting to know exactly who is coming to this country and who is going to be afforded privileges and immunities and for example finding out what precise projects these people who have been this country for multiple years have been assigned to is something to the state department has compelling reasons to want to know and that's what was trying to coming into the agreement to do work in connection with the mission related diplomatic facilities correct that's the basis on which the and correct and for example of some people are located in cities where their own are no diplomatic missions surface illit is that begs the question what are they doing in this country and why should we the state department afford them diplomatic privileges and immunities that's why by way of example why might be answered by section nine nine by law review this is a different question of what the remedy would be but but doesn't the i mean agreement doesn't say anything about requiring registration or certainly none of the information that's reflected in the state department's note that we're just talking about a moment ago that just this construction party person now this is by law this applies to u s personnel in the foreign country just like it applies to personnel for citizens of the foreign country doing work in the united states is not some sort of yes you know as you united states say look will do you a favor and will will will enter and scream is a bilateral thing both sides are green mutually to give respect to the other sovereigns citizens for certain purposes right yes i think it's important keep in mind that this is not a treaty this is a bilateral agreement it's an agreement between it's not a one sided act of grace is what i'm saying it's an agreement between the united states in the foreign country share it benefits both sides it benefits of american workers in the foreign country working on embassies exactly the same way that it benefits foreign country workers working on embassies missions in the united states yes two things address that your honor first of all the state department is acutely aware of the fact that it has workers of its own in the foreign country and that it wants to protect the interest of those workers secondly with respect to this two thousand and nine agreement this was not written in a vacuum it incorporates by reference he vienna convention and anything in the registration right it does talk about notification  was notified they got all these visas very detailed information in these visa applications of these people who are going to be working in the construction part of it i think oh it's a big organization but it's not as if they were unknown to the state department well this court  in his decision below he worked out the fact that to the extent that if applying for a visa in of itself is sufficient to satisfy the notification of harman why even have the notification requirement in fact there are two different parts of the state department country yes it does and have there ever been any cases or incidents involving this kind of is raising this issue in the foreign country no we've complied with and what how was that her notification requirement communicated to us in this country you know there's not a diplomatic no diplomatic note that goes directly to the office of foreign missions that's for the purpose of not talking and i'm not saying that one did i'm saying to the extent for example that to the appellants were registered they're registered pursuit to diplomatic notes which were sent to the office of former house i i'm asking i'm asking for the reciprocal side of this right before i'm country situation this case now flipped over and it's in the foreign country and and and it is a requirement of registration before you can united states can claim diplomatic immunity in that country my understanding is that there is based in consultation with the on have we don't you know have any materials or diplomatic notes that relate to that and there is no specific bilateral arrangement that that requires us that's correct is it is it the department of state's position that in order for american diplomats serving in the foreign country to be to have immunity that those people have to be registered and x registered in the foreign country and accepted and have the rich traditions accepted by that foreign country in order for these americans to get immunity in prison immunities in the foreign country that is the state of arkansas position but isn't inconsistent with some of the other materials that have been submitted by the opponents  sovereign in the context we are seen and the standing nation there the host nation in a context where we provided one year notification before that incident in this case there was notification before we subpoenaed these witnesses for the grand jury so they're very different cases my right me that i think you both sides agree that the law is that we can construe it in the way that we would construe a contract right with a court that has yes but given a substantial deference to the state department's own interpretation of its own executive agreement what about chinese what about obscures what about deference to the to the views of the other country or i mean why how is that how is the deference to the state department greater than deference to the or even  it's called whatever their counterpart is in the foreign country that has said just the opposite it would well i'm not sure why why should we pick one over the other there's constitutional authority vested in the executive to receive and send  hers so this is a core executive power to decide whether people have and i'm sorry it's a core executive power to determine how to interpret the executive zone agreements with a foreign power and that's what's happened in this case we live in the united states we don't live in the foreign country and appellate council has not located one case in which this court or any other court in united states has ever deferred to the political view of a foreign power as to the meaning of a treaty or agreements with this country you know you keep saying that they're asking us to defer to the view of a foreign power i don't think that's what the ras and i think what they're saying is really the agreement which is between both powers both countries signed this agreement not deferring to one of the other we're deferring to the agreement the written words in the agreement i think that's their position i'm not sure they're asking us to defer to the views of a foreign power and what i don't see that anywhere near what the government there are views but they're not asking us to defer to them i think what the government is asking the court to do is to defer to the views of the state department on the meaning of the state department's own agreements with a foreign power no i do understand that you're accusing them of the of the flip side of the mirror image of that and i'm struggling to find where that is i don't see any the arguments that anyway whatever i don't see it in the groups ok but i see your point you're saying we should defer to this since we're here we are here in the united states right and these people or he will are not here right now but they were here pursuant disagreement right fifteen there is a site to coca to which provides that it's the same site that we've gone over that construction party personnel who stay in those countries more than thirty days sh accorded administrative and technical staff the diplomatic mission under the v c d r or those accorded employees of the consulate under the other treaty i cited there well let me let me so here it's not the fact of registration just from the state department perspective no i think clear that's again i understand there's some ambiguity there but i think the next provision cited within this diplomatic note makes quite clear article thirty nine to the relevance your honor is that in this case six of the seven appellants left the country upon the receipt of subpoenas after that we acknowledge that there were efforts by the foreign sovereign to register or to have them accredited through the office of office of foreign missions however there is no legal basis for the united states department of state choop accredit someone who's overseas the government has a zero interest in doing nothing over and over than i thought you were going to make the argument that somehow they this somehow relates to a condition precondition to getting immunity but in fact thirty  says when a person enjoys the privileges and immunities have come to an end the state department is saying they should normally seize the moment he leaves the country wrecked is the implication here that these people under these circumstances had  privileges and immunities that they lost when they left the country i read it differently on or i read this to provide that to the extent that the foreign countries seeking to accredit these individuals and these individuals have already left the country so they are not entitled under any condition to privileges and immunities models make i sure i understand your argument that the period before they left the country because i thought you were going to focus on the preceding sentence where it says these personnel shall enjoy the privileges and immunities munity absent following through with the registration the notification and registration process correct just to make sure i understand the practice the state department after it receives notification if it is accepting a  person to come into the country does it notify the the sending state as a matter of course i'm not sure if notification goes directly to the sending state but a list is made that is publicly accessible and available for all to view an agreed to contract between these two countries there or in the vienna convention or in that other agreement that is referred to in the bilateral agreement the there's another one referred to and i forget which we just refer to somewhere where there was some other some previous agreement between these two countries the residence of the question is where does this is this requirement appear that's the problem i think we were struck i understand your honor the original requirement the notification of parliament appears in vienna convention which is incorporated by reference into the two thousand and nine edition only the two thousand and the other is the immunity but what links them in the convention right well if you look at page eight of our original brief this is the bottom the vienna convention provides that the ministry for foreign affairs the receiving state shall be notified of yes the members of the mission and it goes on just to define who who is included as numbers of mission and which eventually includes the diplomatic staff administrative and technical staff which which would be the category and under which the appellant's in this case fall and no question is a notification provision abstracts of good walkers question is is where does it say that the notification is a prerequisite to getting privileges and mutinies that's that's the the leap that we're struggling i think we struck that's it says notification ok yes i understand it also says this notification requirement exists because it is your gun quoting from the vienna convention the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing states for the words that would be a good spot to say this notification requirement is necessary because without it the foreign diplomat doesn't get bruised immunity i understand because that doesn't appear to say ok so if you start with a two thousand and three meant which says to the extent that you doesn't on agreement is silent on an issue then you look to past treaties agreements and notes so certainly the vienna convention provides for a notification appointment and then if you look at the subsequent diplomatic note from two thousand and three which indicates and this is on g eight ten the reporting requirements and this is the second page of the diplomatic note is essential for obligatory under international domestic law its neighbor of the department to maintain accurate records of all current foreign government personnel in the united states and is essential to continued enjoyment by members of missions and consulates other rights privileges and immunities to which they may be entitled his continued need to the extent that you ask leading questions sure wouldn't want to argue that continued in that sentence means you get privileges immunities but it's important for people like law enforcement and other government officials and in the receiving country to know who these people are because meaning the people getting people who enjoy continued who have continued enjoyment approves immunities it's important for that those names to be known so that if somebody gets in trouble or a problem arises that there's a clear that indeed this is a person who has the continued enjoyment but doesn't see prerequisite that's the pre registration like that to say that is continue to join us but it does say is it is essential to and i would argue that  certainly true no question but i'd say it's essential to getting the immunity in the first place that's the question well that is how the state department interprets its own diplomatic note and i would argue that to the extent there is the word continued that simply implies that this is not a retroactive agreement this creates navigation going forward for sending states to register and to notify the office of foreign missions of mission personnel coming to the country who wish to obtain privileges and immunities the interesting thing is that nowhere in the actual documents that the state department has that you've offered us has the state department say that registration or difficult issue is an absolute precondition without which there the state department's perspective and i think this judge gleason recognized there are important policy reasons for having a notification of parliament and precondition to giving immunity correct and what we have in this case is an after the fact attempt to register these workers after serenely brief iran a proper properly notes the question of a condition precedent or in fact there is a condition precedent in the agreement and that is the thirty day stay requirement section nine point six and i believe this court has as recently as i think it's august decided georgia's case in which it said that when there there does an excellent analysis of what are preconditions and how you find out whether something is a precondition and i submit if you do that analysis here first looking at the text see if if there is one precondition included it excludes all others etc you come to the conclusion that registration and or notification are not a precondition why why would we do that given that drop of the vienna convention i mean i understand the ambiguity about notification just ration that the vienna convention is very clear  tion but if you're on a read carefully the section nine point six it does not say these workers get immunity in accordance with the vienna convention if it did plumbers electricians people who work internally in the construction project under the vienna convention would not receive immunity because it's in accordance with the vienna convention those categories do not apply what it says is those that's correct what this agreement says and we can go into that storable reasons for this agreement with this agreement says it's those workers get immunity because they are involved in the actual construction of the most sensitive diplomatic units of facilities of a foreign nation and while china russia or any other country in the world does not want their construction workers to be before a grand jury with the u s attorney and no one present so too the united states does not want its workers to be alone in a foreign country being questioned by prosecutors there w no one present that is the reason for this agreement especially when it involves people who are working and building in those most sensitive areas your honor also asked whether backing up going back to ga fifteen again these personal or enjoying privileges immunity accorded ministry in technical staff and diplomatic commission of the diplomatic mission under the vienna convention and that takes us back into the vienna convention specifically reference because it's the only place where we can find what i mean unities they have it is not in accordance with but it is the privilege in a court with so what they're saying they're very clearly i submit is that since these definitions of what the privileges immunities are are found in the vienna convention we take a category of workers who would not otherwise get those privileges immunity and by this agreement we grant then those privileges immunity under these terms and the only condition president is the president the united states for thirty days before with regards to notification frankly ron i think it's fairly clear from the diplomatic note  which the united states sent to china on strike that ansari which the united states sent with regards to as early as april two thousand and sixteen that the department has received notices of appointment of all of the purse it's on the list second paragraph of that diplomatic note and so there's no question that as we stand here today notification was received none with regards to we are not saying the visa application your honor judge walker is in fact the point of quote notification that's an electronic process but a diplomatic note is actually delivered as to each individual list of individuals who are going to travel when they're going to travel when they're going to arrive in the united states that is notification by any terms and it is at the time a visa is applied with respect to the argument that there are two separate parts of the department of state that are at play there's one united states wonder fartman of state the fact that they have a box over here or a box over there i submit this is not controlling the list two points i want to make is your honor asked the question whether this was deliberate or oversight i'm reminded of the provisions and it's in our brief of i think it's twenty two u s c a section twenty two fifty four d which says that no privileges or immunities provided by law will be lost because a mission fails to do some technical task and now i believe that statute was designed to apply primarily to the mission immunity but very fairly the language could apply to all others other than that your honor i have nothing further unless the court has for the