[00:00:00] Speaker 03:
Good morning and may it please the court.

[00:00:02] Speaker 03:
My name is Solomon Scheinrock.

[00:00:03] Speaker 03:
I represent the appellant in this case.

[00:00:10] Speaker 03:
The opinion below must be reversed because it rested on the erroneous conclusion that what happened in this case was not torture.

[00:00:21] Speaker 03:
And that error, in fact, is nearly the entirety of the opinion, as I will explain.

[00:00:27] Speaker 03:
The defendants in this case tortured my client.

[00:00:30] Speaker 03:
There's no question that it was torture.

[00:00:32] Speaker 03:
Three branches of the federal government have so concluded.

[00:00:36] Speaker 03:
And the complaint amply alleges that, among other things, the defendants inflicted mock executions and 83 repetitions of waterboarding, which has been recognized as torture for decades in decisions of this court.

[00:00:53] Speaker 03:
Our position is that torture is absolutely prohibited.

[00:00:58] Speaker 03:
The government can never engage in torture, and torture can never be the subject of valid government authority or authorization.

[00:01:07] Speaker 03:
The defendant's position is that they were just following orders.

[00:01:12] Speaker 03:
They were not.

[00:01:13] Speaker 03:
The complaint amply alleges that they were not, and the U.S.

[00:01:16] Speaker 03:
government has not appeared in this proceeding to say that they were or even register an interest in the case.

[00:01:23] Speaker 00:
Mr. Scheinrock, could Congress strip the federal courts of jurisdiction to hear claims against anyone with respect to torture?

[00:01:33] Speaker 00:
Let's, where there aren't other, again, in this situation where there are not at least clear constitutional, other constitutional rights at play.

[00:01:43] Speaker 00:
So could they strip jurisdiction from your alien tort statute claims with respect to anyone?

[00:01:52] Speaker 00:
Do they have the power to do that?

[00:01:53] Speaker 03:
They do not, that would be inconsistent with the prohibition on tortures status as a use Cogan's norm that admits of no exception.

[00:02:03] Speaker 03:
The federal government is not at liberty to authorize things that are prohibited by law and a congressional.

[00:02:10] Speaker 00:
Have you made that argument in this case?

[00:02:13] Speaker 00:
Again, you focused on agents and I think that's where at least I'd like to focus on.

[00:02:20] Speaker 00:
As a starting point you say that this is about the question Torture is prohibited, but our first question is do we have jurisdiction to hear?

[00:02:29] Speaker 03:
Acclaim arising under any of the prohibitions Right and and I'll and I'll get there my thesis here is that if you agree with me that what occurred is torture that

[00:02:43] Speaker 03:
invalidates any of the jurisdictional defenses or arguments that the defendants have raised and that the lower court found, and I'll explain why.

[00:02:54] Speaker 00:
Okay, so I guess in trying to understand this, let's turn it around and now just focus on government officials and employees.

[00:03:04] Speaker 00:
I believe there's evidence there that suggests it would meet the standards that you would apply saying that this is, that they tortured.

[00:03:15] Speaker 00:
Again, taking the pleadings in parallel proceedings.

[00:03:20] Speaker 00:
There have been instances where government officials are employees, and the various reports in the record here are alleged to have tortured.

[00:03:29] Speaker 00:
But in Hamad, at least, we said no jurisdiction under the same statute here, and no jurisdiction because they were agents.

[00:03:40] Speaker 00:
So that seems to run into your argument that allegations of torture must have a federal forum in our courts.

[00:03:56] Speaker 03:
I think, right, so the argument that I would raise is that there can be no valid government authorization to engage in torture.

[00:04:05] Speaker 03:
So no agent or government employee could be working within the scope of their valid authority.

[00:04:13] Speaker 03:
And if you look at the immunity doctrines that have been advanced by the defendants, they all require the court to ask the question,

[00:04:22] Speaker 03:
Was the defendant acting within the scope

[00:04:36] Speaker 00:
how we read this statute, whether on the same page here.

[00:04:43] Speaker 00:
It deprives courts of jurisdiction over an action relating to detention transfer treatment trial conditions of confinement of an enemy combatant.

[00:04:53] Speaker 00:
Setting aside the agent piece, do you concede that these claims relate to the detention of your client?

[00:05:05] Speaker 03:
Yes, and I would concede the dispositive impact of that status on the case, but for what I'll call just a bit of a toe in the door where I would want to reserve the argument that, as I said,

[00:05:23] Speaker 03:
Because of the news Kogan status of the prohibition on torture it can never be something that is That is lawfully Applied by the US government

[00:05:37] Speaker 00:
So it doesn't, and so then we're left with just the question of agent.

[00:05:40] Speaker 00:
In other words, agent isn't, I guess we'll see, there's some question about whether the statute, the in relation to clause is modifying agent or action, but assume, it sounds like you're assuming that it relates to action.

[00:05:53] Speaker 00:
It doesn't say anything about the scope, it just says agent.

[00:05:57] Speaker 00:
And again, it doesn't say employee.

[00:05:59] Speaker 00:
So employees who may have engaged in similar conduct, claims against them,

[00:06:06] Speaker 00:
Let me know if I'm wrong, but it seems clear from the case law that Congress succeeded in stripping our jurisdiction over claims against the employees without an inquiry as to whether they're acting within the scope of their employment.

[00:06:20] Speaker 03:
Yeah, I think that reading is fair.

[00:06:24] Speaker 03:
I'm not sure it's an inappropriate conclusion, but I do think that in the narrow circumstances to which the MCA applies, I think that reading is fair.

[00:06:34] Speaker 03:
I would note on the subject of agency, though, that since the briefing, a recent decision in the Southern District of Indiana

[00:06:45] Speaker 03:
has essentially made the point that the government cannot designate or authorize to an agent the power to commit an unlawful act.

[00:06:59] Speaker 03:
That case is Roman against McAfee.

[00:07:02] Speaker 03:
It's a December, 2024 decision.

[00:07:05] Speaker 03:
And I think it supports my point, which is that there is a basic principle of immunity that in order to

[00:07:14] Speaker 03:
get the benefit of immunity.

[00:07:16] Speaker 03:
A defendant must show that they're entitled to it.

[00:07:19] Speaker 03:
They must show that they were.

[00:07:20] Speaker 03:
acting within the confines of the law.

[00:07:22] Speaker 03:
And because the MCA is effectively an immunity statute, I would submit that when Congress passed it, it understood the limitations on immunity and it intended that those limitations would also apply under the MCA.

[00:07:38] Speaker 03:
So for that reason, again, I come back to my principal point, which is that if you agree with me that what happened in this case, his torture,

[00:07:46] Speaker 03:
these jurisdictional defenses cannot be invoked.

[00:07:50] Speaker 00:
Well, I guess the odd thing about this statute, and thank you for your patience with me, your answers are helpful, is that this is, Congress appeared to be adopting a kind of respondient superior and reverse, a kind of non-respondient inferior.

[00:08:04] Speaker 00:
I agree.

[00:08:06] Speaker 00:
And I think it's because perhaps one explanation would be that Congress understood that without this immunity that the US or the CIA or the supervising agents or employees or officials in the United States could be liable, could be attributed because there was

[00:08:31] Speaker 00:
because the contractors were agents.

[00:08:35] Speaker 00:
There's nothing within the scope, and often Congress will say within the scope of their agency, but there's nothing within the scope.

[00:08:41] Speaker 00:
They were agents.

[00:08:44] Speaker 00:
So if that's what they're trying to undo, why wouldn't the mere fact that they were agents for some purposes, do you can see that they're agents for some purposes?

[00:08:53] Speaker 00:
These defendants in this case?

[00:08:55] Speaker 00:
Yes.

[00:08:56] Speaker 03:
Yes.

[00:08:56] Speaker 03:
No.

[00:08:56] Speaker 00:
So, the express authority, you rule out because it says independent contractor in the contracts?

[00:09:03] Speaker 03:
No, that's not it.

[00:09:05] Speaker 03:
I think a couple of things.

[00:09:08] Speaker 03:
You do have to start with the contracts.

[00:09:15] Speaker 03:
The contracts make clear that they provide no authorization to act on behalf of the United States government or deal with any third party.

[00:09:24] Speaker 03:
And that, under the common law, which the parties agree applies to the agency analysis here, under the common law, decisions of this court, including the Whispersoft, Mills, and the Levian,

[00:09:36] Speaker 03:
Fisher against Leveon case.

[00:09:38] Speaker 03:
This court has said that an essential characteristic of an agency is the power of the agent to commit his principle to business relationships with third parties.

[00:09:48] Speaker 03:
A party without this capacity to bind the principle is not an agent.

[00:09:52] Speaker 00:
And if you look at their contracts, nothing- Well, but that's the entire point of this MCA, is it not?

[00:09:57] Speaker 00:
To ensure that whatever understanding it could be that against a backdrop that they were in a position,

[00:10:03] Speaker 00:
to bind, to confer respondeat superior liability upon their principle that Congress wanted to undo that.

[00:10:14] Speaker 00:
Why, what about ratification?

[00:10:16] Speaker 00:
I mean, this was, your pleadings discussed that the CIA was, this was a CIA site.

[00:10:24] Speaker 00:
They were supervising, they were engaging in contracts and future agreements again and again and again.

[00:10:31] Speaker 00:
Why is there not implied authority or ratification of the conducted issue in your claims?

[00:10:37] Speaker 03:
So they were telling CIA headquarters about some of what they were doing and they were telling DOJ about some of what they planned to do and they downplayed the severity of the torture of my client.

[00:10:53] Speaker 03:
So they whitewashed those communications back to CIA headquarters.

[00:10:58] Speaker 03:
They whitewashed their plan to DOJ.

[00:11:01] Speaker 03:
We have in our supplemental excerpt of record an 18 page memo that records all of the assumptions and limitations that they told DOJ would apply to their interrogation.

[00:11:17] Speaker 03:
And the OLC itself concluded in a subsequent review that the waterboarding in particular was done in repetitions in greater frequency and in a manner that was different from what was set forth in the original 2002 OLC memo that they claim

[00:11:35] Speaker 03:
acted as a sort of authority for the conduct of the interrogations.

[00:11:41] Speaker 03:
So our entire case is premised on the theory that they committed torture and they did so in a way that went beyond the scope of any authority that they had.

[00:11:52] Speaker 03:
And I don't think that there's any basis to identify ratification of their conduct in a sense that would make them agents for MCA purposes.

[00:12:07] Speaker 03:
So I see that my time is coming to a close.

[00:12:10] Speaker 03:
I just want to cover a couple of other points about the MCA analysis in particular.

[00:12:16] Speaker 03:
I think it's important to note that in this case, what the government did authorize happily is set forth in writing.

[00:12:23] Speaker 03:
And as I said before, you have to start the analysis from the contracts that they had.

[00:12:27] Speaker 03:
As alleged in paragraph 50 of our complaint, the contracts authorized psychological consultation to CTC

[00:12:35] Speaker 03:
in debriefing and interrogation operations.

[00:12:38] Speaker 03:
That's not what happened in this case.

[00:12:42] Speaker 03:
What the defendants did went far beyond the scope of their authority and exceeded longstanding boundaries of lawful interrogation, and that's plainly alleged.

[00:12:50] Speaker 03:
The district court was not at liberty to reject those allegations because they're not mere conclusions.

[00:12:58] Speaker 03:
The complaint goes into specific factual allegations

[00:13:02] Speaker 03:
about the conduct and that conduct constitutes torture under the decisions of this court.

[00:13:08] Speaker 03:
With respect to the MCA finding in particular, the district court jettisoned that component of the agency analysis that speaks to the on behalf of Prong.

[00:13:19] Speaker 03:
And as I said, this court has provided some insight into what that means.

[00:13:23] Speaker 03:
It requires

[00:13:24] Speaker 03:
that the agent have the ability to impact the rights and duties of the principal.

[00:13:29] Speaker 00:
And again- I know you're short on time, but I want to hone in on that piece then.

[00:13:35] Speaker 00:
Yes, usually with agency analyses in order to determine an agent, those are usually decided on summary judgment because they're fact intensive.

[00:13:45] Speaker 00:
But we're dealing here with a jurisdictional statute where we don't have jurisdiction to reach those questions.

[00:13:50] Speaker 00:
and you have the obligation to establish jurisdiction in your pleadings.

[00:13:54] Speaker 00:
How do we determine if you're asking for a fact-specific inquiry into the scope of agency, assuming that's what the MCA requires?

[00:14:10] Speaker 00:
How do we do that when Congress has stripped the jurisdiction to do so from us and it only says agent?

[00:14:14] Speaker 00:
It doesn't discuss scope.

[00:14:16] Speaker 03:
So I would submit that we've met our burden to establish jurisdiction through the allegations in the complaint, which established that they were not agents.

[00:14:24] Speaker 03:
If they want to rebut that and on a jurisdictional rule 12 motion say that we are

[00:14:31] Speaker 03:
In fact, it's their obligation to come forward with information.

[00:14:37] Speaker 03:
They did provide extrinsic evidence.

[00:14:39] Speaker 03:
It goes to the combatant status of my client.

[00:14:42] Speaker 03:
That's not something we argue with.

[00:14:44] Speaker 03:
They did not provide their contracts.

[00:14:46] Speaker 03:
And why?

[00:14:47] Speaker 03:
Because those contracts are incompatible with agency status.

[00:14:51] Speaker 03:
They're appended as Exhibit 4 to the Motion for Judicial Notice, and I would commend them to you.

[00:14:57] Speaker 01:
Give you two minutes for rebuttal.

[00:14:58] Speaker 01:
Thank you, Your Honor.

[00:14:59] Speaker 01:
Thank you, Counsel.

[00:15:07] Speaker 02:
Good morning, Your Honors.

[00:15:09] Speaker 02:
Brian Pazman on behalf of the appellees, the defendants here, Dr. James Mitchell, Dr. John Bruce Jessen.

[00:15:18] Speaker 02:
I appreciate the time today.

[00:15:20] Speaker 02:
It seems to me that we need to start with the motion for judicial notice.

[00:15:26] Speaker 02:
We heard about the contracts just a moment ago.

[00:15:29] Speaker 02:
Of course, we oppose the court's ability to look at those contracts at this point in time, not because we disavow that they are in fact the contracts, but simply because these were not items that were placed in front of the district court.

[00:15:42] Speaker 00:
Well, let's focus on the pleadings then, if that's, so where in the pleadings do you think an agency relationship is established under the MCA?

[00:15:53] Speaker 00:
How have they plugged themselves out of jurisdiction here?

[00:15:55] Speaker 02:
Well, I believe that it's based upon the extent of the control that the CIA employed with regard to what transpired here in connection with Mr. Zabita.

[00:16:07] Speaker 02:
As they've pled in the complaint, and there's an awful lot of allegations in there,

[00:16:11] Speaker 02:
It establishes how it was that the CIA came to my clients, what occurred once my clients were engaged by the CIA, how the CIA in turn then took the suggestions from my clients to the DOJ, and then what came back.

[00:16:28] Speaker 02:
And of course, what came back was not all of the EITs being approved.

[00:16:32] Speaker 00:
Do we need to ask any question about the scope of agency?

[00:16:36] Speaker 00:
Are there any limits to the scope of agency under the MCAA or in this case?

[00:16:42] Speaker 02:
I actually think the answer to that is no, Your Honor.

[00:16:45] Speaker 02:
I believe the answer is no.

[00:16:46] Speaker 02:
And I listened intently to what Mr. Scheinrock said to you.

[00:16:50] Speaker 02:
But if there was going to be some sort of scope parameter that was going to be employed by Congress here,

[00:16:55] Speaker 02:
Um, frankly, it should have been disclosed within the MCA.

[00:16:59] Speaker 02:
So where that leaves us is back with the restatement third of agency.

[00:17:05] Speaker 00:
So your client, um, give your clients, um, could have murdered Mr. Subodaya.

[00:17:10] Speaker 02:
Well, your honor, respectfully, um, again, if that was within the context of the agency that was granted by

[00:17:19] Speaker 02:
the CIA in this particular instance, then I think my answer is yes, although I recognize that's a very extreme example.

[00:17:26] Speaker 00:
Well, okay.

[00:17:28] Speaker 00:
What's the context, though?

[00:17:29] Speaker 00:
How far does that extend?

[00:17:30] Speaker 00:
An act, let's assume, otherwise unlawful killing, wrongful death suit, offsite.

[00:17:43] Speaker 02:
Well, Your Honor, again, here we're talking about a situation where we have specific facts in terms of what transpired, not a murder or something akin to that.

[00:17:51] Speaker 00:
So focusing on... But then we're back to asking whether it's within some sort of scope of agency, are we not?

[00:17:57] Speaker 02:
Well, I think we are, Your Honor, and that's fair.

[00:17:59] Speaker 02:
But once again, when we talk about the scope of agency under the MCA, it's the scope is established by the restatement third of agency.

[00:18:08] Speaker 02:
And there, there's two elements that are taken into account.

[00:18:11] Speaker 02:
Number one has the principle

[00:18:13] Speaker 02:
asked the agent to do something, my words not the way the restatement reads, and has the agent in turn agreed to do just that?

[00:18:20] Speaker 02:
And then was there control exercised?

[00:18:23] Speaker 02:
And I would suggest to you that in each of those particular elements, given the pleadings that we're looking at here, we need go no further than the pleadings.

[00:18:31] Speaker 02:
The answer is unequivocally yes.

[00:18:34] Speaker 02:
And during the course of your questioning of Mr. Sheinrock, he mentioned this question of binding and whether it's necessary to be able to bind in order for there to be an agency.

[00:18:46] Speaker 02:
I would suggest to you that under the comments for the Restatement Third of Agency, the answer to that question is no.

[00:18:54] Speaker 02:
And it's set forth in our briefing, but the reality is that to the extent that an agent with actual authority, which is what we believe the pleadings here manifest exceeds that authority, then the remedy

[00:19:09] Speaker 02:
is if the principal is held accountable, the principal in turn can come back to the agent and that's where the liability lies.

[00:19:17] Speaker 02:
It's not a question of liability as between the agent and the individual with whom he was trading.

[00:19:24] Speaker 02:
The comments to the restatement are very clear that it says sometimes

[00:19:29] Speaker 02:
The agency could simply be to negotiate, to obtain information, and I would suggest to you that that's similar to what we have here.

[00:19:36] Speaker 00:
But I guess as soon as we begin limiting the scope of this agency, we have a complaint that alleges that the principal here said that the scope ended and that

[00:19:56] Speaker 00:
And again, the allegations are that once the contractors had gone beyond that scope, they not only exceeded the scope, they'd arguably committed war crimes.

[00:20:06] Speaker 02:
Well, Your Honor, that turns a blind eye to what was happening on the ground.

[00:20:11] Speaker 02:
And respectfully, it harkens back to your question of ratification.

[00:20:15] Speaker 02:
This wasn't a situation, assuming you were even to consider the contracts, where it was the contracts and then nothing else is looked at.

[00:20:22] Speaker 02:
This was a situation, as pled by Mr. Zubaita in his complaint, where the CIA had people in the room while the interrogation was taking place.

[00:20:32] Speaker 02:
There was medical staff there.

[00:20:34] Speaker 02:
There were guards in the room.

[00:20:36] Speaker 02:
They monitored the situation.

[00:20:38] Speaker 02:
And then at the end of each and every day, there was a summary of what transpired.

[00:20:43] Speaker 02:
That was what was happening here.

[00:20:45] Speaker 02:
This wasn't a situation, for example, like al-Shammari, which I recognize comes up in a different context, but where the government had no idea what was going on.

[00:20:57] Speaker 02:
They knew exactly what was going on here.

[00:21:00] Speaker 02:
In fact,

[00:21:01] Speaker 02:
At one point in time, my clients sought to end the enhanced interrogations, and it was disallowed by CIA headquarters.

[00:21:09] Speaker 02:
So that manifests, among other things, that they were tuned in.

[00:21:14] Speaker 02:
They knew what was going on here.

[00:21:17] Speaker 02:
And so I would suggest to you there was undoubtedly a principal agent relationship that occurred here.

[00:21:25] Speaker 02:
End of story.

[00:21:26] Speaker 00:
What do you make of the question that usually with we don't resolve these questions on pleadings.

[00:21:32] Speaker 00:
So what are we to do with a jurisdictional statute that turns on agent status.

[00:21:37] Speaker 02:
Well again I think that you can get there based upon the pleadings that you have here.

[00:21:43] Speaker 02:
even if you don't usually resolve that on agency, because you're right.

[00:21:48] Speaker 02:
You have, to some degree, a little bit, excuse me, sir, a dilemma, where on the one hand, you're saying, well, how do we resolve this just on the pleadings, but on the other hand, you have the Congress having stepped in, and respectfully, based on the legislative history, among other things, to protect my very clients,

[00:22:10] Speaker 02:
So you have, on the one hand, no jurisdiction, and on the other hand, a situation where arguably you can't resolve that until later.

[00:22:18] Speaker 02:
And I would suggest to you that in this particular instance, there is more than enough based upon what he pled in his complaint to get you there.

[00:22:29] Speaker 02:
We accept as true what he said in his complaint.

[00:22:31] Speaker 02:
As the district court acknowledged, this was a facial challenge.

[00:22:36] Speaker 02:
Nothing outside of the complaint was looked at for purposes of the decision in the court below.

[00:22:41] Speaker 02:
And candidly, nothing needs to be looked at here to get you to the very same conclusion, which is that there is no jurisdiction because these folks were agents and that they acted within the scope of their agency.

[00:22:57] Speaker 02:
And if we look at it, Your Honor, if I may move to sort of a corollary piece of this,

[00:23:04] Speaker 02:
Mr. Zubaita needs some level of agency or state action or color of law in order to proceed with his ATS claim.

[00:23:15] Speaker 02:
Absent that, he doesn't have an ATS claim.

[00:23:20] Speaker 02:
So setting aside the extraterritorial issue associated with his ATS claim, which is, if you look at it through the focus perspective, all of this activity occurred overseas.

[00:23:33] Speaker 02:
He was interrogated overseas.

[00:23:35] Speaker 02:
None of it occurred in the United States.

[00:23:39] Speaker 02:
So we have a situation where, what does Mr. Zabaita do in the face of that?

[00:23:43] Speaker 02:
He says, well, there's this acquiescence standard that can be applied under the ATS.

[00:23:50] Speaker 02:
Respectfully, to employ an acquiescence standard at this point in time would be to turn a blind eye to 30 years worth of jurisprudence, including from this court that says, if you don't have state action,

[00:24:05] Speaker 02:
If these folks did not act under color of law, there is no ATS claim.

[00:24:11] Speaker 02:
So he's got a bit of a dilemma here, candidly, and the district court saw it, and other courts have seen it.

[00:24:18] Speaker 02:
And it's a bit of a catch-22, based upon the interplay, on the one hand, where the MCA, the Military Commissions Act, needs

[00:24:28] Speaker 02:
or has an agency situation.

[00:24:31] Speaker 02:
On the other hand, he doesn't have an ATS claim without that very same agency type situation.

[00:24:38] Speaker 00:
Back to the statute.

[00:24:39] Speaker 00:
Yes, sir.

[00:24:41] Speaker 00:
The question I had for your friend, the relating to clause.

[00:24:46] Speaker 00:
Does the relating to clause, as you understand it, modify the actions from which jurisdiction is stripped or the agent relationship?

[00:24:55] Speaker 02:
You know, Honor, Your Honor, I haven't really spent a lot of time thinking about that, so I don't have a good answer.

[00:25:01] Speaker 00:
Well, forgive me.

[00:25:02] Speaker 00:
I have.

[00:25:02] Speaker 00:
So we're trying to figure out exactly what these words mean.

[00:25:06] Speaker 00:
Yeah.

[00:25:07] Speaker 00:
Because I guess if it turns only on whether someone is an agent, I think you've been candid with respect to the scope of agency well outside of any express authorization that your clients

[00:25:19] Speaker 00:
um, purported to exercise.

[00:25:22] Speaker 00:
Um, what about the, um, you know, the cook or the custodian at the black site, um, an agent of the United States, right?

[00:25:32] Speaker 02:
I would agree with that statement.

[00:25:33] Speaker 00:
Yes.

[00:25:34] Speaker 00:
And, and so if that person, um, harmed, um, a detainee, um, uh, same rules, any, anything goes be simply because they've triggered the agent status.

[00:25:46] Speaker 02:
I think no, Your Honor, because in that situation, the question becomes, why were they there?

[00:25:51] Speaker 02:
So if it's a cook.

[00:25:53] Speaker 00:
Well, but that's exactly the plaintiff's question here.

[00:25:56] Speaker 00:
Why were they there?

[00:25:58] Speaker 00:
And he is alleged that what they weren't there to do is torture, and that came from the highest levels of our government.

[00:26:04] Speaker 02:
Well, getting back to the concept of torture, Your Honor, in the Padilla case... Waterboarding, for example.

[00:26:10] Speaker 00:
That's maybe the clearest example.

[00:26:13] Speaker 00:
Excessive.

[00:26:14] Speaker 00:
Well beyond the guidelines established in the memo, if that controls.

[00:26:17] Speaker 02:
Well, Your Honor, once again, we get back to the questions of ratification and the like, where the CIA saw every bit of what was taking place here.

[00:26:26] Speaker 02:
And I recognize the allegation is that this occurred beyond the guidelines.

[00:26:34] Speaker 00:
If it were murder, is that something that would have been ratified by the fact that if the CIA continued a business relationship with these contractors?

[00:26:42] Speaker 02:
What was the CIA watching when it transpired?

[00:26:44] Speaker 02:
Was it within the scope of that which these individuals were employed by the CIA to do?

[00:26:50] Speaker 02:
It seems to me the answers to those questions would drive the answer to your ultimate question here.

[00:26:57] Speaker 02:
And so plainly, they weren't hired to murder anybody.

[00:27:03] Speaker 02:
They were hired to interrogate somebody.

[00:27:05] Speaker 02:
I recognize that the allegations here are that they exceeded the bounds of that which the DOJ authorized.

[00:27:12] Speaker 02:
But once again, we get back to waterboarding, the most extreme of the EITs, of course, was authorized, as were all of the other things that transpired with respect to these individuals.

[00:27:24] Speaker 02:
And candidly, even if they weren't authorized.

[00:27:28] Speaker 00:
But confined simulated burial.

[00:27:30] Speaker 02:
Well, simulated burial, no, that was not one of them, Your Honor.

[00:27:35] Speaker 02:
You're 100% right.

[00:27:36] Speaker 00:
Okay, but there are allegations of simulated burial.

[00:27:38] Speaker 00:
Why is that not outside the scope of agency for the MCA?

[00:27:41] Speaker 02:
Well, it brings us right back to the ratification concept that Your Honor talked about earlier.

[00:27:46] Speaker 02:
You know, they want to pin the scope of that which was authorized exclusively to that which was taken by the CIA as proposed techniques, put in front of the DOJ, and the DOJ in turn says, yes, these work, no, these don't work, the insect won, that didn't work, so on and so forth.

[00:28:05] Speaker 02:
But in this particular instance, they were there.

[00:28:09] Speaker 02:
They were in the room.

[00:28:11] Speaker 02:
They controlled the situation.

[00:28:15] Speaker 02:
That's why it matters in this particular instance.

[00:28:18] Speaker 02:
So while I recognize it doesn't fall within the four corners of that which the DOJ said was okay, and that was really at the core of Mr. Yu's case in Padilla, the fact of the matter is that the concept of torture has been thrown around an awful lot by Mr. Zabaiti here.

[00:28:37] Speaker 02:
The techniques that were deployed on him

[00:28:40] Speaker 02:
in almost every instance, were not torture based upon that which was approved by the DOJ.

[00:28:46] Speaker 02:
And with respect to those couple that may have exceeded those very bounds, Your Honor, the CIA was right there to say, nothing.

[00:28:57] Speaker 02:
Nothing to contravene.

[00:28:58] Speaker 02:
You shouldn't have done that.

[00:29:00] Speaker 02:
Absolutely nothing.

[00:29:02] Speaker 00:
So in that case, the CIA would have ratified acts that they allege are torture.

[00:29:06] Speaker 02:
Absolutely.

[00:29:07] Speaker 02:
That's exactly.

[00:29:09] Speaker 02:
And if it did happen as they say it happened, and that's a whole different issue, then yes, absolutely, that is my client's position on that subject.

[00:29:17] Speaker 02:
And this particular statute, again, it talks about, at least in its legislative history, why this came about.

[00:29:26] Speaker 02:
It came about because of my clients.

[00:29:28] Speaker 02:
The DOJ memo.

[00:29:30] Speaker 02:
Well, the DOJ memo specifically identified that it was gonna be my clients that served as the interrogators here.

[00:29:38] Speaker 02:
That's actual authority.

[00:29:40] Speaker 02:
There's perhaps not a better manifestation of actual authority than they were identified in the very memo from the DOJ in terms of that which was going to transpire on a going forward basis.

[00:29:53] Speaker 02:
And once again, we're talking here about an enemy combatant.

[00:29:57] Speaker 02:
And I'm not suggesting it's a good idea for torture of an enemy combatant.

[00:30:02] Speaker 02:
But this is not a US citizen, so cases like Hamdi and whatnot, inapplicable here.

[00:30:08] Speaker 02:
This is a situation where they had a guy, this was the war on terror and the CIA, and it came down from a pond high, including from Vice President Dick Cheney.

[00:30:18] Speaker 02:
We have to figure out what's coming next.

[00:30:21] Speaker 02:
And that's what my clients did.

[00:30:23] Speaker 02:
And now what they seek to do is have them hold the bag for it.

[00:30:27] Speaker 02:
And there's all kinds of different basis.

[00:30:30] Speaker 02:
from which this court could affirm what the district court did.

[00:30:33] Speaker 02:
It's not just the MCA.

[00:30:35] Speaker 02:
It's derivative sovereign immunity.

[00:30:37] Speaker 02:
It's the political question doctrine.

[00:30:39] Speaker 02:
It's all detailed in the, I apologize, the many pages of briefing that we provided to you.

[00:30:44] Speaker 02:
And it's not my point today to continue with that.

[00:30:46] Speaker 02:
So unless you have any further questions, I see my time is up.

[00:30:49] Speaker 02:
Thank you, counsel.

[00:30:50] Speaker 02:
Thank you.

[00:30:59] Speaker 03:
I'll be very brief and I thank the court for its indulgence in the extra two minutes.

[00:31:04] Speaker 03:
I want to come back to this idea of ratification.

[00:31:06] Speaker 03:
I know you've been thinking hard about it, Judge Johnstone.

[00:31:11] Speaker 03:
Ratification was not argued below.

[00:31:13] Speaker 03:
I don't think it was argued even on the briefing here.

[00:31:16] Speaker 03:
It might create after the fact vicarious liability.

[00:31:21] Speaker 03:
It does not retroactively change the status of the defendants from independent contractor to agent.

[00:31:29] Speaker 03:
And it therefore should not impact the agency analysis.

[00:31:34] Speaker 00:
Another... On the facts, do you contest any of the facts that the CIA was actively supervising throughout?

[00:31:43] Speaker 00:
Was at least there set aside the legal import of that?

[00:31:46] Speaker 03:
We concede that there were CIA representatives there, but the fact arguments that my colleague just made are contrary to what was alleged in the complaint.

[00:31:56] Speaker 03:
That's unacceptable on a Rule 12 disposition.

[00:32:00] Speaker 00:
So... Whether they controlled.

[00:32:02] Speaker 03:
The factual dispute right and whether they controlled I think is answered at least in part by reference to the OLC memo that they're holding up as authority.

[00:32:15] Speaker 03:
That's part of the supplemental excerpts of record page one of that document says that the only people with access to the detainee during the interrogations.

[00:32:24] Speaker 03:
are going to be these two contractors.

[00:32:28] Speaker 03:
And we allege in the complaint, as part of our acquiescence argument, that the CIA was there, there were government representatives there, they knew what was going on, they failed to stop it.

[00:32:41] Speaker 03:
How can I ask you the federal government ratify acts of torture which are prohibited as you use Kogan's norm?

[00:32:53] Speaker 03:
And I think another important reference is the Convention Against Torture to which we are a party.

[00:33:00] Speaker 03:
requires state's parties to provide a forum for remedies of its violations and to strip jurisdiction, as my colleagues have proposed, would be incompatible with our commitment.

[00:33:18] Speaker 01:
Thank you.

[00:33:18] Speaker 01:
All right.

[00:33:18] Speaker 01:
Thank you, Council.

[00:33:19] Speaker 01:
Thank you to both of you for your briefing and argument.

[00:33:21] Speaker 01:
This matter is submitted.

[00:33:23] Speaker 01:
And this particular panel is adjourned.

[00:33:26] Speaker 01:
It's been a great sitting with you guys.