extent to which the torture victim prevention act provides or doesn't provide any immunities whether they're absolute deferential or totally disallowed a requires a finding under color of law or apparent authority of law i'm a foreign nation that automatically triggers complete and absolute deference because that's the standard they use for purposes of granting immunity in this suggestion of immunity process and the court simply could not have meant that when it created the t v p clear that the mune of the issue that the defendant palance pallies rely upon only applies to status immunity for heads of state agencies or instrument es so if that is correct and the and the court says it is then there is as the court stated no such there's no conduct related immunity to someone who is not a head of state it's said that for conduct related community for foreign officials that there was no such immunity it said the only immunity i would be i'm happy to be wrong but i don't think i am well either you're wrong or what i just read through the supreme court of the united states and israel and i rather this may be  how you argue there's an exception i think by understand your argument there is an exception to the common law conduct immunity doctrine for violations of just kogan snor say it is a lawful action taken in official capacity how does the court resolve this at the motion to dismiss it has to be torture or an extrajudicial killing and and that's always going to be disputed isn't it well it mean here it seems are isn't it disputed what occurred i know we have some reports that say some things and other reports that say other things well it's undisputed as the following facts that he was shot from the helicopter four times in the back it is undisputed that as he lay while still alive on the deck of the ship after he had only been filming and not participating in anything else he was shot right in the face and that is what killed him those are undisputed facts and that is it is it also  the whether or not the blockade is legal is irrelevant to the determination of whether used cogent applies use cogency particularly in the ninth circuit which has a fairly robust history of addressing the issue of there are at least five or cannot be they claim that it's acting appropriately when it is one and when there is a use code junes the fence so that what's the answer to my the answer to the defense is what they always will say which is artful pleading you have to at the pleading stage now there may be the possibility of entering into a process by which there is some challenging of the facts and here the trial court get a bit of each in its ultimate the last component is of its lining and have you basically let go of your claims against  case preferably supreme court or in circuit that clearly sets forth the distinction between conduct based immunity and status based immunity the size the force circuit's decision and  facial versus factual so there's there's all kinds of layers here i'm trying to work through i'm self well the act i mean any case as the court is fully aware it begins with the pleading stage that's the only thing we can do it should not be that all cases get resolved at the pleading state i've done sort of an informal survey of finding trying to find out how many cases got through in the last twenty six years through this claim that there is absolute deference under the s o i to what the executive says and it's a handful the the whole concept is defeating the the the statute that was created by congress not the court and it is making an absolute mockery of this particular piece of legislation but that is exactly the position the seconds and circuses taken in and the night and the night circuit the ninth circuit has a number of cases that support the concept that the that use cogency is a that there cannot be immunity for use cogent violations now give me fact just the opposite but the the issue there is it's referring specifically to use cogent as a something which cannot if it's a violation of that it doesn't match up with the s o i but it does match up with that there can be no immunity and in this case you're not claiming there was any torture this case is an extrajudicial killing right well there also is a component of torture if you shoot somebody in the back leave him on the deck for a period of time and then walk up and shoot him that's certainly could be a form of torture to me i mean about force or case because in that case the court went a different route even regardless of whether there's an s o i we do our own independent review is that how you interpret with the fourth circuit absolutely i think there are steps in the steps are there is there is no immunity f that case they did not counter man to my saying that the government in that case their position was consistent with the government or their cases where the courts have come out not consistent with the factual and i think with twelve b one factual that you can you can review you can bring in facts but there has to be so unequal ability to bring in facts and to resolve the question of whether the alleged conduct constituted torture as well well i don't think that the that you can reach the ultimate issue at that stage you can determine whether there's fission either factual or facial allegations that support the allegations it's not a summary judgment so what about when the conduct isn't disputed  it is disputed whether the conduct was lawful because it occurred during war is that a factual question that would be a factual question  did for interrupting but if it's used cojones it doesn't matter because if it's a if it's torture or extrajudicial killing those are violative of international norms which have been incorporated in the supreme court has on the clock for the plaintiffs are asking this court to do what no court has ever done which is reject the suggestion of immunity filed by the department of justice and department of state asserting that a foreign official acting in his official capacity is immune from suit didn't the fourth circuit say that it would be willing to do that and basically it from what they said in their case with a four circuit case is actually different because they're the united states said that the individual was not immune and the fourth circuit conducted but i thought the fourth circuit may have been pretty clear in saying we don't give absolute deference to that as so i think the fourth circuit was clear in saying that and oh isn't that a slightly different well i guess up to this point you're correct no one has gone against the government that was the point i was trying to make previously but it sounds like the fourth circuit's not opposed to killing a different route no i would agree with that although we  disagree with the four circuits logic and it's holding and so why is the four you know the second circuit better way to go than the fourth circuit if you could which is the second circuit's rule even though it came out before the two thousand and ten decision and samantha are actually got it right absolutely decided very question here today which is that even for conduct based immunity this is on page three twenty four of the supreme court's opinion even for conduct based community the courts must defer if the department of justice and the part under the fs i and in fact the court didn't appear to reach the question of whether sam sam on tar could be immune under the common law and instead it remanded to let the district court decide so i don't know if we know what the the supreme court thoughts were and because it really didn't attempt to define the full scope of common law immunity is it possible there could be exceptions like the first circuit but we don't believe there can be such exceptions and we do believe the supreme court although it perhaps it may be samantha page three twenty four the supreme court was very clear it said even if a suit is not governed by the act referencing of a cia it may still be barred by foreign sovereign immunity under the common law and so alternately the supreme court did send the question of whether the common law muni would apply to the official in that case back to four circuit it's statement was abundantly clear in earlier in the opinions from court also laid out the history of its common law midis and you know explain how they are preserved except with respect to foreign such as torture cannot serve cannot be saw for x i'm just trying to figure out how to reconcile i'm just asking all these questions because i think there's a lot as i indicated just a lot of different layers here how making you know the route it took so i don't mean helps us because it's part of an unbroken trend nothing binding this panel you know with bigger question here but when you're talking about peterson side i'm in judy on all those cases recognize the same two step procedure but samatar made the law of the land and so although there is you know this this other holding inside him in about use kogan is what really is most salient is the fact that this court has repeatedly both just trying to figure out how how how we reconcile that it seems like the plaintiffs alleged torture and appropriation of prior property by the state department tina during the military dictator and  it says given i mean the language specifically he says given this extraordinary consensus we conclude that the right to be free from official torture is fundamental and universal or right deserving of the highest status under international law a norm of just coogan's and goes on and says that states engage in official torture cannot be doubted but all states believe it is wrong all that engage in torture deny it and no state claims a sovereign right to torture its own citizens under international law any state that engages in official torture violates just coke and that doesn't seem relevant house i mean how do we get to where you want us to go without or and address that because it seems to put us at least initially on the path of the fourth circuit as our somehow this was an extrajudicial killing but we're at the twelve b one stage and at that stage you know the we look at everything the light most favorable to the plaintiff or that's what i'm asking what what do we do at this stage in these kind of cases when and it seems like it's disputed here so even if you assume again we buy it by all means disagree that this was torture that would be a use kogan violation but that still would not allow for this suit to go forward under the t v p a or under any other statute because there's no use cobain's exception to the common law immunity doctrines that kick in once a foreign sovereign has requested a statement of immunity and the united states is agreed to give one based on what authority based on says that torture and therefore killings are not official acts and and that never be basically and that is disputed but and israel is sad that these were official acts and they were not torture and that they were not extradition killings in the united states has agreed and wants that to terminate determination is made then the inquiry is over we don't even get to the side or main question which incidentally also you know excitement is the oldest of those three cases that i mentioned in this kind of unbroken trend of defer good morning your honour's lewis yellin from the department of justice i'm here today for the united states we're grateful for the opportunity to present the government's views given my limited time i'd like to make three points which i hope are responsive to some of the concerns that i've heard the court raise during this argument the first i'd like to specifically address suydam and suydam and i think it's quite critical held that notwithstanding allegations of use kogan snore and in that case the claims did not come within an exception to state's foreign sovereign immunity under the episode i think that's important because it shows that immunity and allegations of unofficial acts are two separate things what so so the actual incitement was that the allegations were insufficient to invoke the court's jurisdiction under the fs as my friend suggested the government the united states here the state department accepted a diplomatic request from the state of israel made its own evaluation and determined that the acts which are at issue in this case were official acts and just and the state department determined to suggest the immunity of mr barak based on its own assessment that these acts were official now now under the supreme court's precedent and this court's precedent that determination is controlling i think there are three elements and samatar which show that it's controlling and judge may i think also show that it's not simply the question and samatar is whether or not the foreign sovereign immunity sap control the immunity of foreign sovereigns in answering that question know the supreme court trace the history of foreign sovereign immunity in the courts and determined that before the f s a had been enacted there was a practice of absolute deference to the executive branch to the state department's immunity determinations and as your honor read and the quotation just a little bit ago the cases against foreign officials were rare but the same procedures were followed at the end of the samatar opinion at page three twenty three the supreme court held we have been given given no reason to believe that congress saw as a problem or wanted to eliminate the state department's role in determinations regarding official immunity now that was part of the reason the court held that the f s i into it and presumably we would once again be required to give conclusive weight to the state department's determination of whether an individual's activities fall within traditional exceptions to sovereign immunity i thought i holding inside him and was based on the reasoning that congress didn't create eight exception didn't create an exception in the fs i isn't isn't that what they decided and if so how does that affect what you just said right now that that's exactly correct your honor the point that i'm trying to make by relying on the holding inside a man is that this court recognized there is a difference between allegations in a complaint which might include allegations of use covens violations and principles of immunity which govern the jurisdiction of the courts and the court concluded inside him and that notwithstanding allegations of use koans by elations congress have not given the court's jurisdiction a here in the foreign official immunity contacts the executive branch through the state department those munity principles that are a political this gets to the third point i was hoping to make which is about allegations and the foreign policy implications of cases such as these as the court knows the foreign policy powers of this country are vested in the political branches in congress and in the executive branch when congress or the political branches acting together create standards for this court to apply in adjudicating claims involving foreign states this court has workable rules for it to apply knowing that the politically responsible branches that have control of our foreign policy have determined that that those principles are appropriate for this court to apply in the absence of any codification the historic practice has been for the courts to defer to the executive branch as one of the two political branches that's responsible for our foreign policy and and the practice goes back decades and is very well documented in the samatar opinion and as i read a indian opinion and it is for that reason that courts look to the executive branch as articulation of the principles governing foreign sovereign immunity rather than create them on their own out of whole cloth with respect to the fourth circuit's decision i would suggest the following your honour's first that decision in some sense in that particular case had much lower cost in terms of outcomes because the united states had determined that that defendant was not immune from suit and so there wasn't a conflict between the court's determination and the executive branch's determination to hold anything  contrary in this case would create a conflict with the executive branch's determination i mean if i can ask a question because in the suggestion of immunity because you are the government and you're representing the government  to absolute deference on questions involving conduct based immunity and that immunity would not extend to human rights violations so doesn't that imply approval of the four circuits holding in that case well not to read that and in fact you point out that the supreme court denied certain again after salman tars bench trial in that case what do we make of that i think it's very well established and forget that that the supreme court's denials of searching are i have nothing no bearing whatsoever on the merits of any underlying claims and in fact the united states had suggested after the use of case that the court should grant vacate man without hearing the case on the merits because of in the government's view the error that the four circuit had undertaken the supreme court decided not to do that but i would point this court to the clear statement of the court made in and i think it's also worth pointing out that cases in salmon tar discussed in seminar involving foreign officials all were conduct based cases heaney walty and greenspan two of those cases involve consuls and my friend in his reply brief suggested that consul's have status based immunity because the executive branch has to determine whether or not the councils are consuls well that status in a trivial sense just in the same way that the executive branch has to determine whether any defendant is an official and a status based immunity is a broad immunity from any sort of suit based on the person's incumbent status that is whether they're the head of state or an accredited diplomat but consuls like the vast majority of officials enjoy only conduct based immunity and the third case that i had mentioned greenspan did not even involve consuls and involved did prevention officials from newfoundland and the court the supreme court cited those cases approvingly as this the procedure that was followed before the fs i was in acted and it was that procedure that governed the determination of way or foreign officials are immune from suit namely a submission from the state department of a suggestion of immunity or barring that us submission from the state department a determination by a court that the clearly articulated principles that the state department had record that we have here what's your position on the political question your honor the government hasn't taken any position on any issue besides the effect of the suggestion of immunity thank your hon and footnote twelve where it specifically references that the legislative history makes clear that congress did not intend the fs like to address position based individual  third there was a reference to the legislative history the legislative history has it been pointed in this quite clear it says that it's expressly states that the committee does not intend these immunities to provide former officials with the fans to a lawsuit brought under this litigation so it was specifically addressed in the legislative history and there was a discussion and the decision ultimately was made to present a t v p a which had no common law immunities as part of it and that is because at the time it was passed was no history of common law immunities for conduct based individual components but one thing is for that but is that history which we don't know if it were read by the senate or congress before voted  to say that the legislation will not provide immunity nothing is there's nothing in the legislative history was this that we were are abrogating the common law by this legislation well i would say that that sentence absolutely indicated that they do not intend to give as a defense to the lawsuit former officials who through the legislation through legislation the the statement was note that there has never been that the court is there at where asking the court to strike out in something that has never happened before the opposite is true affirming the court in the ninth circuit as use cogent violations are not subject to a claim