the order than eyeing my client's claim for common law immunity and as a threshold issue with regard to that claim i think it important to note the current posture of the case in so far as the position of the united states is concerned the district court requested a statement of views from the united states that is done so several times during the long and in c of this case and the most recent statement from the executive branch in this case was was filed in the district court april twenty fourth of last year and essentially the position of the government was that at that time it was considering with somalia because of the problematical security situation in that unfortunate longsuffering country apparently that situation still a pains as there as i understand your very yes you're not arguing if you do tell us where that any of x alleged against you have been committed by your client declaration for my client as to the facts here is that he denies the hague aged in the conduct alleged in the complaint but to answer your honor's question yes we're not disputing that those alleged acts would would  status no it's not the head of state but he was an official in the government in that he was he was a brigade commander in the somali national army and so therefore we believe that he is entitled to supersede or override that the laws of his country what precedent you have that says that the position is about what position with regard to his official status or position with regard to the just coach but you've told us he's not a head of state not his he is not a member of the diplomat or an officer in the military he's an officer in the mill and not contesting that there are allegations that we have this case we are bound by that absent some extraordinary circumstance like following supreme court opinions what do we do well let's let's address the issue of extraordinary circumstance respectfully we think an extraordinary circumstance is that to be sure the supreme court denied cert twice the supreme court also requested briefs from or on trail reading but with that proviso in mind samatar was a case in which there was a default judgment energy against statements are before the matter  immunity was even heard by or considered on the surface station so so it's fair to say that perhaps that's the reason that the court considered samatar not to be certain words moving on states save the fact that my client just happens to live here and respectfully but we are of the view that the district court correctly decided that aspect proper application of the supreme court's kyogle decision to the facts of his case the twenty thirteen keo bill opinion applied a presumption of extraterritoriality to the question of subject matter jurisdiction under the alien clearly erred here is to and that courts analysis at the question of extraterritorial conduct or not the district court in our case tell that the alien toward statute may never reach conduct occurring in the territory of  at a broader range of facts than just the location of injury this did not even if the even if the district court erred as you say in applying the but the key a bell the fact remains that we can look at the record and decide whether or not the facts support the ultimate outcome in this case and i think that's exactly right all right i think that's the crux of what you have to decide today do you remember back and point out to the district court they stop short of the  you look at the facts and what while there are other than physical presence in the united states what else is there to support the application of the statute in the case of the five factors that the court noted that case had to do first of all with corporate presence and corporate activity and i want to say at the outset i think that this is different when you're dealing with individual defendants natural persons but in our mari one of the factors the court looked at was the clearly stated u s national interest in having a cause of action for these kinds of offenses to be brought in the united states by foreign nationals we have that same factor here and i would argue that in these cases it weighs particularly heavily i think the fact pattern obviously apply that across the doesn't end there you look for an aggregate of facts they deem touching concern the united states or the united states in that in that claim not in that conduct but in that claim and i think this is where a number of courts trying to interpret have gone a bit  wrong interestingly i never would have thought it was the first time i read people but the first opinion i would point you to incurable is actually kennedy's his solo concurrence it's like a page long and offers very little inside of who he will be likely to join the next time it comes up what he says to you is other cases will arise that require elaboration and i think the quintessential cases that he was referring to and that the court notes in its opinion and its concurrence that will come up later and need clarification are these safe harbor defendant cases the defendant here is like with your case so mr ali in this case is what i think of as the quintessential safe harbor defendant i don't think a court will get a better set of facts to look at this a part of a defendant caveman bussy or i mean he's found him in the u s in this case you have even more than his presence in the united states you have a pleading allegation and a concession and the response to that from the defended the actually arrived in the united states in one thousand nine hundred six has been a permanent resident here for twenty years and arrived here having been deported from canada for the very human rights abuses in somalia that are the subject of this claim he sought safe harbor in this forum and in so doing he fits into a classification of defendant that follows the i am here for you and let me tell you who are listening to it all right so you've got to find a way to make them consistent and i think if there's one clear way and there's a lot of sources you can look at for guidance on how to do this mari is one of them because it tells you to look at the claim itself to see if it touches in concerns the united states not just the conduct that happens overseas because if that was the rule if the rule was as a district court found and as other district courts have found the extra territorial conduct by itself is a bar to the claims then every single one of those full article cases has been overturned and we know that hasn't happened in fact in cuba before justices say so in writing by citing the florida case hannity as i mentioned his one page opinion that says we'll get to a lot of this later doesn't say so but in oral argument he stated definitively that the larger by name is binding and controlling precedent if they had intended to overturn that line of cases those safe harbor defendants they would have and i keep going to full article because i think it's the quintessential safe harbor case for a large to go brought her claims almost what's the limiting factor on  l string of consistency supreme court cases that talks about presumption against extra court extraterritoriality doesn't sound like there's much if being here being a presently united states for a couple weeks are sufficient well the presumption against extraterritoriality is a really interesting starting point because when he overall chose it as the starting point they were looking at the principles underlying that presumption and why you go there in the first place predominantly in these are the ones that were also cited by the court you look at whether there's going to be a clash of loss and you look at whether you don't want unwarranted you distil interference i would suggest that those two factors completely differently if you're not looking at corporations and their mere corporate presence in multiple jurisdictions but if instead you're looking at a natural defendant and natural person defendant who has sought safe harbor in the united states when you get to that category you don't have a conflict of laws the way you have an unsettled set of laws about corporate liability internationally you have pretty good international agreement on certain use cogent violations of international law the chances of a conflict of laws are low and importantly and this gets me to the factor that i think is the dispositive touching concern element in the safe harbor cases on the other underpinning for the presumption against extraterritoriality the idea that we are worried about unwarranted  interference that is a non concern for a safe harbor defendant because you have a repeated position of the united states government dating back to the same interest you are to face in one nine hundred seventy six or hundred eighty i forget which all the way through to the amicus briefs at the u s government submitted in the key of the case in two thousand and thirteen you have a consistent and repeated statement that the u s has a national interest a strong national interest diametrically opposed position and said basically of the conduct occurs outside of the us that's the end of the matter so i don't know that rely on these cases all that compelling well here's why i think it is because i think the four circuit has it right where the the absence of domestic conduct bars the claims if that's the case in florida is overturned and marcos is overturned and both of those cases are cited approvingly in sosa by the u s supreme court in two thousand and four it's not like the supreme court doesn't know these cases are out there and that this precedent is out there and they choose not to overturn it so we have to see if we this time we have to reconcile it and the only logical way to do that is to go to what touches in concert the united states what part of the claim not just the conduct touches and concerns the united states and there is such a clear statement by the united states that our foreign policy and national interest lies in not becoming a safe harbor for work criminals i think that gets you there i think it has to because if it doesn't then florida and marcos and the rest of them the ones cited approvingly in sosa the ones that the supreme court justices in kyogle knew were out there and didn't individual not necessarily but that's one of the areas where because it's a natural defendant the analysis comes out differently one of the things that the roberts majority opinion you know will keyed on was that mere corporate presence is not enough mere corporate presence is so vastly different from where any individual natural differently or natural person defendant has elected to take up residency by choosing to purposely avail himself of the jurisdiction of the united states the protection of the laws the privileges of being a resident he has purposely availed himself of the protection of the laws in the u s and repeatedly the united states government or peroration who has a presence also have  selected where you're subject to the general jurisdiction of a personal jurisdiction if you limit yourself whereas corporations that appear in multiple d'oeuvre enters dictions aren't so limited so i think that to answer your question is one of the ways that individual defendants just come out differently the purposeful of ailment narrows the other ways narrows the fora that are available to have accountability here when courts have looked at this particular when kyogle looked at this it made a very narrow holding in a case that was dealing with corporate presence all it helped was that mere corporate presence in the us is insufficient to displace the presumption so you can send the case back to the district court and say please analyze whether or not there's an aggregate of facts here relevant to this claim the displace the presumption or not or you can look at the record in the facts of the allegations and make what i think is going to be a very important ruling giving direction as kennedy suggested would be necessary elaborating on how we reconcile these cases by saying that mere presence alone is not enough and acknowledging that corporations are  present in multiple locations the court said nothing about how you handle a safe harbor defendant natural person who is present by his own choosing in the united states when a claim is brought charging him or asking him to be accountable for the human rights violations that he fled when he came here where this defendant chose to become a permanent resident the united states in one thousand nine hundred six after being deported from canada for human rights abuses in somalia he chose this forum and this forum has subject matter jurisdiction over him because of the strong u s interest in not being that safe harbor if this court were to now refuse to recognize that type of cause of action under those circumstances would actually set back the national interest the often stated national interest in promoting human rights accountability i did not invent that sentence that comes from the us is statements of interest from florida all the way through to kiyo it and has no statement of interest in the case there is a statement of interest in the samatar case samatar in this case were filed on the same day and have been progressing through the same district court the statement of interest in the samatar case includes that quote that i just point for the purposes of understanding the u s interest in safe harbor i think that has appeared so many different times that they can't be expected to have to say so that the u s has an interest in not being a safe harbor for work and also in every or case in order to trigger the recognition under the touching concern test of the fact that a safe harbor defendant runs afoul of the u s interest in not becoming a safe harbor it's different when you're in the community context now actually looking for them to affirmatively weigh in here part of your task is to look at the whole claim not just the conduct and where it occurred but the whole claim and the only way to read those cases consistently is to turn no safe haven that's the congress weighing in making clear their intent you can look to the t v p s a is that you that came about after the florida line of cases to expand not abrogate the florida case against individual rights well it's interesting in terms of what type of action there are a number related to immigrations that is that they can't and do what they can do criminally is different and the actually limitations what we have in the united states is a mechanism for civil liability and nobody in the executive the judiciary or the legislative branches have ever suggested that it's time for the united states or anything it is a mechanism but a mechanism that it comes but with it is a tacit presumption against its use and most cases and i used to me that if if that is true that maybe it's appropriate to wait and see what the executive chooses to do or not  i don't think it can be the only consideration i think courts are obligated to reconcile the precedent and i think the only way to do that is to here's what i think it comes down to a lot when you're looking at jurisdiction and who you're going to haul  it becomes a fairness discussion i think incurable when the court applied this presumption against extraterritoriality but they're really asking is should we really be hailing a foreign corporation and a u s court for conduct committed abroad they wrestled with that question i think the safe harbor cases also come down to the fairness question should this defendant be allowed to voluntarily availing self of the law privileges and protections of the law of the united states that come with his chosen prominent residency and simultaneously claim it is prior work rhymes and human rights abuses don't touch him concern the united states while he lives here i think the answer is no and i ask you to  we're talking here by the seventeen eighty nine statute which doesn't say anything about safe harbor and and we respectfully with all due respect to counsel's position here we're to establish that that that was the reason that he was deported from from from canada he he was deported from canada he came to the united states incidentally he was deported from canada after a television interview that embarrassed the immigration minister there appropriately addressed by addressing the executive under the immigration laws of this country rather then through this elongated process of trying to bootstrap that is one which has addressed his pres protections united states as a permanent alien and for my ability that's bequest and deportation is another area but that's well but but but is is is point had had a cosmopolitan application in which it was basically a way for the united states to export its norms of to conduct in foreign countries and essentially that's what kind of bell curtail ed and the only opinion in the supreme court's decision and high bell that appears concurring opinion that appears to support counsel's position was justice briar's opinion but that was not the opinion of the court and the opinion and that the court appears in cabell to address these concerns that are raised by suggesting that there might be more definitive statute and there is not a statute here that explicitly creates jurisdiction for addressing these claims and of course we vigorously  that relevant conduct included a lot of conduct in the united states on the part of ca c i the government contractor that was being sued for human rights abuses in iraq on the part of its contract employees here there is no nexus to the two to the united states the fact that there virginia and the united states is out of the question until my client actually comes here was he trained the united states when you train learned it and that's a that's a serious charge to buy that my client was learn how to torture people and as was a legend this complaint by the united states didn't that that's that's something that's beyond the pale you know he's not it's not but the fact of the matter remains that elsom ari part of the touching concern there was the contract that was entered into between the contractor and and he was government and of course the end result of that contract was may not have been anything that the but just gregory's point is that if you've got some prior relationship in this case training even is as you say it may not have directly resulted in training related to torture that is relevant part of  perhaps i see that my time is about to run out of the order clock here i've got nine seconds left and i make one more point in that regard to answer this question you're on the hill and that is that it's picking up on judge gray grease respectfully a serious transgression into the prerogatives of the executive because it would be having to do dish will branch determine that my client when he was commander  brigade commander in somalia was somehow in some agency role be to be the united states and i just respectfully think that that is a specious point in that really isn't the opposite with regard to the question of whether these claims touching concerning the united states  back to the district court to look for additional facts and tie you to domestic conduct something happening inside the united states i would urge you not to do that and here's why you don't have to in order to reconcile the line of cases that has no domestic conduct in it but has been favorably appealed by the u s supreme court already and has never been abrogated or overturned or even distinguished by the u s supreme court to reconcile those you've got of your will to find it with out this reach and stretch and look for a domestic connection you can only reconcile those cases if you turn to the question of whether the claim touches and concerns the united states and you find that for a safe harbor defendant who's been a permanent resident for twenty years availing himself of the privileges and protections of u s law after leaving canada deported for the human rights abuses that are the subject of this claim he must be subject to u s laws