[00:00:01] Speaker 00: Case number 15-7024 at L. Rivkev Livnat, individually, and as personal representative of the estate of Ben Yosef Livnat at L Appellants versus Palestinian Authority, AKA the Palestinian Interim Self-Government Authority. [00:00:16] Speaker 00: Ms. [00:00:16] Speaker 00: Weber for the appellants, Mr. Berger for the appellee. [00:00:22] Speaker 02: Good morning. [00:00:24] Speaker 05: Good morning, Your Honors, and may it please the Court. [00:00:26] Speaker 05: I'd like to begin by addressing the Second Circuit's recent decision in Sokolao, because I think it provides a useful framework here. [00:00:33] Speaker 05: Like the court below, the Second Circuit took a federal statute designed to provide justice for American citizens harmed by international acts of terrorism and left it unenforceable in the very class of cases for which it was intended. [00:00:46] Speaker 05: And as a threshold matter, these decisions are wrong because the PA does not have due process rights. [00:00:51] Speaker 05: But even more fundamentally, these courts incorrectly applied limitations on the power of the states [00:00:57] Speaker 05: and apply them to the power of the federal government, which is particularly inappropriate in this case and in ATA cases, where the federal interests in national security and foreign relations are invoked, interests that are far beyond the scope of the state's authority. [00:01:13] Speaker 04: And so the- Are you expressing, are you talking now first about the question of whether due process applies at all? [00:01:20] Speaker 04: Yeah, Your Honor. [00:01:21] Speaker 04: There's three parts to your argument. [00:01:22] Speaker 04: Number one is due process apply. [00:01:23] Speaker 04: Number two, if it does, [00:01:25] Speaker 04: Is it general registration number three, is it specific? [00:01:29] Speaker 04: Would you make it clear as you're going along which one you're talking about? [00:01:31] Speaker 05: Yes, absolutely, Your Honor, and I apologize for not doing that. [00:01:34] Speaker 05: So it's true that we first argued that the PA is not entitled to do process rates as a foreign government under this Court's holding in price. [00:01:41] Speaker 05: And I'd like to return to that a little bit later, if I may. [00:01:44] Speaker 05: I was just pointing to the Court's attention to [00:01:47] Speaker 05: that the court's holding on specific jurisdiction is particularly inappropriate in light of the fact that it applied 14th Amendment case law to this Fifth Amendment case. [00:01:59] Speaker 04: Well, no. [00:02:00] Speaker 04: All right. [00:02:00] Speaker 04: Since you wanted to start that way, let's assume there's due process of laws. [00:02:07] Speaker 04: I know you argue against that. [00:02:09] Speaker 04: Right. [00:02:11] Speaker 04: Which do you think is your strongest argument [00:02:19] Speaker 04: What is your response? [00:02:20] Speaker 05: Right. [00:02:22] Speaker 05: We think the clearest path is under specific jurisdiction, and that's because you have the federal interests at stake here in protecting U.S. [00:02:29] Speaker 05: nationals is at its apex. [00:02:31] Speaker 05: And when balanced against the burden on the PA, and to be clear, the PA has never argued that it would be unfair for it to defend [00:02:38] Speaker 05: itself in the United States. [00:02:39] Speaker 05: It has lawyers. [00:02:41] Speaker 05: It receives billions of dollars in aid from the United States. [00:02:44] Speaker 05: There's not really a fairness argument there. [00:02:46] Speaker 05: But when you balance those interests and also consider the nature of the tort, which is terrorism, you know, and while... But this case doesn't look anything like Calder, right? [00:02:54] Speaker 02: I mean, you don't have anything like Calder here. [00:02:58] Speaker 02: And that's kind of a marker we have to follow, isn't it, for specific jurisdiction here? [00:03:04] Speaker 05: So I have two responses to that. [00:03:05] Speaker 05: First, Calder again involved the power of the states to haul an out-of-state defendant into court. [00:03:10] Speaker 02: And by the way, no one's recognized your 14th Amendment, 15th Amendment due process. [00:03:16] Speaker 02: Distinction. [00:03:17] Speaker 02: It's clever, it's interesting. [00:03:20] Speaker 02: We'll make for great law review articles, but we would be making new law here. [00:03:25] Speaker 02: So just tell me why Calder doesn't point us in a very different direction than where you're pointing us on specific jurisdiction. [00:03:36] Speaker 02: Or is your argument that you have to come up with a different type of specific jurisdiction under the Fifth Amendment than the Fourteenth Amendment? [00:03:41] Speaker 02: Does it rest on that? [00:03:42] Speaker 05: It doesn't completely rest on that, although that's certainly and I would know there are other courts that have recognized the distinction when it's a fifth amendment case. [00:03:49] Speaker 05: But to your point, there are Calder like aspects of this case in that. [00:03:54] Speaker 05: Like Calder, the tort of terrorism, like libel, it's not a localized harm. [00:03:59] Speaker 05: It's a harm intended to a greater audience. [00:04:01] Speaker 05: It's intended to have ripple effects to a broader audience. [00:04:04] Speaker 05: And so just as the harm in Calder wasn't solely in the writing of the article, the harm was experienced when people read the article. [00:04:13] Speaker 02: But you don't have any evidence that this attack [00:04:17] Speaker 02: was part of this strategy to affect U.S. [00:04:21] Speaker 02: public opinion or foreign policy strategy. [00:04:25] Speaker 02: You made a very conclusory allegation, but there's no evidence that this attack has been linked to changing the United States public opinion or foreign policy, and that seems to me that's very different than Calder. [00:04:38] Speaker 05: Well, we have an allegation that we supported with an expert declaration from Professor Atticott, and to be clear, this case was dismissed at the motion to dismiss... But am I maybe wrong? [00:04:47] Speaker 02: Professor Atticott didn't say anything about this specific attack. [00:04:52] Speaker 05: Professor Atticott discussed how this attack was part of the larger PA policy and practice of using acts of terrorism to influence in part the policy. [00:05:00] Speaker 02: He said this specific attack? [00:05:02] Speaker 05: He talked about the general practice of encouraging and facilitating acts of terrorism. [00:05:06] Speaker 05: He did not talk about this specific terrorist act. [00:05:09] Speaker 02: That's what I'm talking about. [00:05:10] Speaker 05: But in our complaint, we do allege this specific attack was part of the larger pattern of facilitating terrorism was a goal and part of influencing United States policy. [00:05:19] Speaker 01: Your complaint doesn't allege that. [00:05:22] Speaker 01: this attack was done knowingly targeting U.S. [00:05:25] Speaker 01: citizens or residents, right? [00:05:27] Speaker 05: It does not. [00:05:28] Speaker 05: And under our theory of specific jurisdiction, that's not required. [00:05:33] Speaker 01: It's enough for Congress... But that makes this case a lot different than in Wally, right? [00:05:40] Speaker 01: It's different from Walden, but it's different from Walden in another... Not Walden in Wally v. Bin Laden. [00:05:47] Speaker 05: It is different from the money in that respect. [00:05:49] Speaker 05: But to be clear, the ATA wasn't intended to address only attacks on US embassies. [00:05:54] Speaker 05: It was intended to protect, provide justice for any American national injured by an act of international terrorism. [00:06:01] Speaker 05: And it's well within the power of the federal government to protect. [00:06:04] Speaker 05: And it's, in fact, the federal government's responsibility to protect US nationals wherever they may travel. [00:06:09] Speaker 05: And that's really different from. [00:06:10] Speaker 02: But the Congress doesn't have the ability through legislation, no matter how, no matter the intent, [00:06:16] Speaker 02: to alter the Constitution? [00:06:19] Speaker 02: No, it does not. [00:06:22] Speaker 02: So Congress may very well have intended a broad sweep in the ATA, which it did, but that doesn't address the issue before us, which is, what does the due process clause mean here? [00:06:34] Speaker 05: Congress, of course, cannot override the Constitution. [00:06:37] Speaker 05: However, if the Court is going to look to the Constitution to largely [00:06:41] Speaker 05: leave a legislative statute ineffective, which is what's happened here, I think it's critical that the court consider the federal interests involved in these cases. [00:06:51] Speaker 02: Ineffective. [00:06:51] Speaker 02: That's a bit of an overstatement, right? [00:06:53] Speaker 02: The ATA is not ineffective. [00:06:55] Speaker 05: Ineffective in the paradigmatic cases for which it was intended. [00:06:58] Speaker 05: When the Congress passed the ATA, the record was filled with references to the Leon Klinghoffer case, which was the American national killed by the PLO. [00:07:06] Speaker 05: That was forefront in Congress's mind in passing this. [00:07:09] Speaker 05: And so to then turn around and say, well, you can't actually use the ATA to bring the PA or the PLO to justice is [00:07:16] Speaker 05: is a big statement. [00:07:18] Speaker 04: Can I take you back for a moment, because I'd like to go sequentially. [00:07:23] Speaker 04: Your first argument, of course, is that due process doesn't apply at all based on price, right? [00:07:29] Speaker 04: That's correct. [00:07:29] Speaker 04: Before we even get into, I admire the fact that you said your specific jurisdiction argument was stronger than the general, but we haven't gotten to that unless we say due process apply. [00:07:44] Speaker 04: price suggests that the PA should be regarded the same as a foreign state that is recognized, right? [00:07:57] Speaker 05: That's correct. [00:07:59] Speaker 04: Isn't it fair to say that price, are there any other cases in which a state, an organization, a political organization [00:08:12] Speaker 04: that is short of a recognized state or a state of the United States or a wholly owned subsidiary of a state. [00:08:22] Speaker 04: Is there any case holding that a group of people are not entitled to due process other than the ones that fall in that category? [00:08:30] Speaker 05: Well, there are cases involving the PA's predecessor, the Palestinian Information Office. [00:08:36] Speaker 04: Well, those cases are arguably obviated by other PA's. [00:08:41] Speaker 05: Well, they have not been overruled. [00:08:42] Speaker 04: The DCU... Explicitly. [00:08:44] Speaker 04: Explicitly, right. [00:08:45] Speaker 04: But there are no recent cases. [00:08:47] Speaker 04: Well, I wouldn't know... So wouldn't it be fair then to describe price as an exception? [00:08:53] Speaker 04: It's an exception to the general due process doctrine that if a group of people [00:09:08] Speaker 04: jurisdiction. [00:09:09] Speaker 04: And the only exception are the states of the United States or territories with sovereignty or foreign sovereigns recognized as sovereigns. [00:09:22] Speaker 05: Well, I mean, the territories like Puerto Rico and Virgin Islands are not sovereign, and yet the courts... Well, they are for some purposes. [00:09:28] Speaker 04: For some purposes, but the Supreme Court recently held that for purposes of double jeopardy... The Supreme Court cases are all over the lot on that, on the Virgin Islands. [00:09:37] Speaker 05: I think what might be most relevant in terms of recent case law is this court's recent, or not recent anymore, but 2001 decision in National Council of Resistance of Iran, in which case there were organizations that did not have due process in that case, but the court noted that if the organizations interacted and were treated, interacted with the U.S. [00:09:55] Speaker 05: as if it were a foreign government... That was all dictated. [00:09:59] Speaker 02: And more recently, we have Tomazoo, right? [00:10:01] Speaker 02: And that was only a per curiam judgment. [00:10:03] Speaker 02: But it was clearly based on the notion that there were due process rights. [00:10:07] Speaker 05: It was assumed. [00:10:07] Speaker 05: But in the district court, the plaintiffs in Tomazoo conceded or argued that the defendant, this alleged government, was an unincorporated group of individuals. [00:10:21] Speaker 05: It did not pursue the line that it was a government. [00:10:23] Speaker 05: So the issue was not even raised there. [00:10:25] Speaker 04: The PA not only doesn't have sovereignty, [00:10:33] Speaker 04: limitations, does it? [00:10:36] Speaker 04: I was trying to understand exactly the scope of the writ, the political writ of the PA. [00:10:45] Speaker 04: And it's a little confusing, isn't it? [00:10:47] Speaker 05: Well, the PA, and I see I'm going into my rebuttal time, but I'd like to answer. [00:10:52] Speaker 05: The PA does have territorial authority over the West Bank and the Gaza Strip. [00:10:57] Speaker 04: But are there all these settlements which are not... Well, it's non-sovereign authority. [00:11:03] Speaker 04: And then there's a, indeed, there's a whole slew of territory next to the Jordan River in which the PA does not have authority. [00:11:14] Speaker 02: And did you say they didn't have sovereign authority? [00:11:17] Speaker 05: That's right. [00:11:17] Speaker 05: The PA is not a sovereign. [00:11:19] Speaker 05: But to get back to price... It doesn't even have political authority in a clear... Well, it does have... It is the official governing authority of the West Bank and Gaza Strip under the Oslo Accords. [00:11:29] Speaker 05: But to get back to this court's decision in price, there's nothing in price that restricts the holding to only sovereign governments. [00:11:35] Speaker 05: That's an exception. [00:11:36] Speaker 02: What is... What animates price? [00:11:38] Speaker 02: What is the principle [00:11:40] Speaker 02: that we take away from price beyond the fact that Libya is not a person. [00:11:46] Speaker 02: Beyond that, what's the principle behind that? [00:11:47] Speaker 05: So prices holding was animated by a couple of factors which apply equally here. [00:11:52] Speaker 05: First, the due process clause is meant to protect the individual liberty interest against the government, not one government against another government, because there's plenty of recourse for governments in the international arena. [00:12:03] Speaker 05: And indeed the PA takes advantage of those. [00:12:05] Speaker 05: It's signatory to 39 treaties, it has [00:12:07] Speaker 05: It participates in the U.N. [00:12:08] Speaker 05: It has a diplomatic presence here. [00:12:10] Speaker 05: All of those factors apply. [00:12:13] Speaker 02: So it's government? [00:12:13] Speaker 05: It acts as a government, so it doesn't need the protection of our Constitution. [00:12:16] Speaker 02: So does ISIS get due process rights? [00:12:19] Speaker 05: If ISIS holds itself out to be a government, and would like the advantages of being a government, then it also has the responsibilities, which it should not be cloaked with due process protections under our Constitution. [00:12:31] Speaker 04: Suppose an organization appears in Nigeria. [00:12:38] Speaker 04: and it occupies a certain measure of territory, and it asserts political authority, should that be treated like a state? [00:12:47] Speaker 05: If that organization holds itself out to be a foreign government and an aspiring state, then there's no reason it shouldn't. [00:12:52] Speaker 04: Well, that happens all the time. [00:12:53] Speaker 04: Your suggestion is, any time there's an insurgent that gains hold of some property and asserts political authority, it is equivalent to a state. [00:13:04] Speaker 05: If it holds itself out that way, it should be treated as a state. [00:13:07] Speaker 05: There's no reason to grant it. [00:13:08] Speaker 04: My question is yes. [00:13:09] Speaker 05: Yes, it shouldn't be granted protection under a constitution. [00:13:11] Speaker 04: That's an enormous, enormous expansion of price, is it not? [00:13:15] Speaker 04: And has awesome implications with respect to a confused world where there is often a group, a political group that gains control of an area of territory of a country and asserts a rebellion. [00:13:31] Speaker 04: And once they're sued, your view is they have no due process. [00:13:36] Speaker 04: That's how we, they're treated the same as the state. [00:13:39] Speaker 05: Well, it certainly makes sense under Price. [00:13:41] Speaker 05: I mean, in Price as well, this court reasoned that if we grant due process rights to a foreign government, then that could restrict U.S. [00:13:47] Speaker 05: ability to freeze assets and post sanctions. [00:13:49] Speaker 04: You're on my ear. [00:13:50] Speaker 04: Yes. [00:13:50] Speaker 04: The answer to my question is any group that asserts political authority in some segment of territory somewhere in the world is treated like a state. [00:14:01] Speaker 05: For the purposes of the Constitution, yes. [00:14:02] Speaker 05: Now, Congress has the legislative, it might come up with a legislative solution if it wishes to provide protection for those foreign actors. [00:14:11] Speaker 05: But I also want to note, in this case, it's clear there's no dispute that the PA is a foreign government. [00:14:15] Speaker 05: And so if the court wished to take a narrower approach, saying we look at sort of the functional test of if they are acting like the government, if they're administering services, the territory, the container. [00:14:23] Speaker 01: So are you contending that the PA is a juridical equal to the US? [00:14:28] Speaker 05: It certainly behaves like one and is treated like one by the United States, with the exception of recognizing it as sovereign. [00:14:34] Speaker 02: You don't see it as a foreign aid. [00:14:35] Speaker 02: That's a pretty big exception, isn't it? [00:14:37] Speaker 05: But if you compare, the case law really breaks down between, are you like a government or like a private actor? [00:14:42] Speaker 05: Private actors are not getting billions of dollars in aid from the foreign government, are not signatories to international treaties, don't participate in the UN. [00:14:49] Speaker 04: Incidentally, the fact that it gets all that money from the foreign government [00:14:54] Speaker 04: I don't think it does. [00:14:59] Speaker 05: I know the PA makes a lot about how that shows that the U.S. [00:15:01] Speaker 05: interest is in supporting the PA, but the definitive U.S. [00:15:04] Speaker 05: interest here are the words of the ATA. [00:15:07] Speaker 05: It's not, you know, an assortment of quotes that one can collect from various administration officials. [00:15:11] Speaker 04: Well, the ATA doesn't explicitly address this issue. [00:15:15] Speaker 05: Well, it addresses those who engage in international terrorism. [00:15:18] Speaker 05: It was designed in mind to address Palestinian terrorism, and so it's clearly meant to address this type of situation. [00:15:26] Speaker 02: Can I go back to something you said about price? [00:15:28] Speaker 02: I'm still struggling with why it is that a state does not get due process protections. [00:15:36] Speaker 02: What's the thinking behind that? [00:15:38] Speaker 02: The word in the 14th Amendment and the 15th Amendment is person. [00:15:44] Speaker 02: If you're a person, you get due process protections. [00:15:46] Speaker 05: And that extends to corporations because they're often treated as persons. [00:15:50] Speaker 05: But a government doesn't have an individual liberty interest that needs to be protected against another government. [00:15:55] Speaker 05: And the court also noted that, you know... So how far does that go? [00:15:59] Speaker 02: So right now we're talking about personal jurisdiction, the protection that comes to an entity under personal jurisdiction. [00:16:10] Speaker 02: But that's not the only element of the due process clause. [00:16:13] Speaker 02: How far does that go, this lack of the due process clause applying to other states? [00:16:19] Speaker 02: How far does that go? [00:16:19] Speaker 02: What's the limit on that? [00:16:21] Speaker 05: Well, they're not considered persons, so they simply aren't entitled to due process protections. [00:16:26] Speaker 02: At all. [00:16:27] Speaker 02: We're just talking about personal jurisdiction here, but you're saying at all. [00:16:29] Speaker 05: I'm sorry, due process protections. [00:16:31] Speaker 05: That being said, there are courts that have held in the context of municipalities or even the federal government that even if a litigant doesn't have... No due process protection. [00:16:39] Speaker 02: No due process protections at all. [00:16:41] Speaker 02: Again, the context here is personal jurisdiction. [00:16:43] Speaker 05: Well, certainly there would need to be a legislative hook for personal jurisdiction. [00:16:46] Speaker 05: And there is one here. [00:16:47] Speaker 05: There's a long-arm statute. [00:16:48] Speaker 02: There are other parts to due process clause besides the jurisdiction. [00:16:51] Speaker 02: And that's what I'm getting at right now. [00:16:52] Speaker 02: And I'm just trying to understand, what are the limits? [00:16:56] Speaker 02: A state is here and they don't get the cross-examined witnesses? [00:16:59] Speaker 05: What's the... So the courts have held that once a state is here, or another party that doesn't have due process rights, there's still an issue of fundamental fairness. [00:17:10] Speaker 05: The rules of court still apply, because those apply to all litigants, regardless of whether they're people under the due process clause or not. [00:17:16] Speaker 02: And that's not captured in the... What you're saying is there's fundamental fairness concerns beyond the due process clause? [00:17:22] Speaker 05: that are derived from the due process clause, but apply even to those without due process rights, because they govern the conduct of United States courtrooms. [00:17:31] Speaker 04: Isn't the answer to Judge Griffith's question about price, which is a good question, the key that limits [00:17:50] Speaker 04: That's right. [00:17:52] Speaker 05: It is. [00:17:54] Speaker 05: That if we don't grant the United States of the Union, which are part of our constitutional fabric due process rights, why would we grant them to foreign governments? [00:18:01] Speaker 02: I understand that. [00:18:01] Speaker 02: But the point is the states don't have liberty interests that need to be protected in the courts. [00:18:05] Speaker 02: They can protect them elsewhere? [00:18:07] Speaker 05: Is that the idea? [00:18:10] Speaker 05: that they are sovereign within their own territory, but when it comes – it's motivated largely by federalism concerns. [00:18:17] Speaker 05: We don't want one state encroaching on the power of another state. [00:18:21] Speaker 05: But the price, the concern about sort of what's left if we take away due process rights from a foreign state, in some ways, that's a question that's already occurred, right? [00:18:31] Speaker 05: So a foreign state currently doesn't have due process rights. [00:18:34] Speaker 05: And yet we don't see, largely because Congress has decided to step in and grant sovereign immunity in most cases, not all. [00:18:42] Speaker 05: But we don't see states being treated very unfairly in the courtrooms. [00:18:45] Speaker 05: We don't see a run on, you know, [00:18:48] Speaker 05: their rights, their courts, there's nothing unfair happening. [00:18:50] Speaker 05: And so it's really, it's kind of the tail wagging the dog. [00:18:55] Speaker 05: The concerns aren't really playing out and shouldn't animate us granting constitutional rights to an entity that historically hasn't had them. [00:19:02] Speaker 05: And the reasoning of price applies just as clearly too. [00:19:06] Speaker 02: Great. [00:19:07] Speaker 02: We'll give you back time. [00:19:08] Speaker 02: Thank you. [00:19:08] Speaker 02: Thank you. [00:19:12] Speaker 02: Mr. Berger, good morning. [00:19:13] Speaker 03: Good morning. [00:19:14] Speaker 03: May it please the Court, Mitchell Berger for the Palestinian Authority. [00:19:17] Speaker 03: I have planned to proceed sequentially, as Judge Silverman suggested, but I'd also like to address the Court's questions. [00:19:23] Speaker 03: I think most of them fall into the due process realm. [00:19:26] Speaker 03: So I'll start there, because we too have four elements, due process, general jurisdiction, specific jurisdiction, jurisdictional discovery. [00:19:35] Speaker 03: One of the points that Appellant keeps making is that this is an issue of first impression in the circuit. [00:19:40] Speaker 03: It's decidedly not. [00:19:42] Speaker 03: Every case that they cited as an exception actually stands for the rule of price. [00:19:47] Speaker 03: So for example, the Palestinian Information Office case in which Judge Silberman sat on the panel actually extended due process to the foreign mission of the Palestinian government, even though, as Judge Silberman noted in his concurrence, it was undisputed in that case [00:20:04] Speaker 03: that the Palestine mission to the United States had privileges and immunities under United States law. [00:20:10] Speaker 03: That gets to your question, Judge Griffith, about the animating principle of price. [00:20:15] Speaker 03: When all is said and done, [00:20:17] Speaker 03: The conclusion about juridical equality is that there's a bundle of rights that defines juridical equality. [00:20:23] Speaker 03: Whatever the Palestinian government has, both in 1988, when the Palestine Information Office case was decided, and today, that bundle of rights falls short of sovereignty. [00:20:34] Speaker 03: It's the same point that would apply to a instrumentality of a foreign government. [00:20:41] Speaker 03: It has certain rights, under certain circumstances an instrumentality of a foreign government can claim immunity under the Foreign Sovereign Immunities Act, but it's not enough to equal juridical equality. [00:20:51] Speaker 04: So what is the key to your argument? [00:20:55] Speaker 04: U.S. [00:20:57] Speaker 04: recognition? [00:20:58] Speaker 04: Is that the key? [00:20:59] Speaker 03: It is that U.S. [00:21:00] Speaker 03: recognition equals certain consequences. [00:21:03] Speaker 03: So, yes, the premise. [00:21:05] Speaker 03: Due process, of course, is a status-based one. [00:21:07] Speaker 04: So, as your point, if there was not recognition of a foreign entity, putting aside what that entity is, it would not have sovereignty. [00:21:17] Speaker 03: Correct. [00:21:17] Speaker 03: And I think the National Council case stands for exactly that proposition. [00:21:21] Speaker 03: Is that North Korea doesn't have sovereignty? [00:21:23] Speaker 03: Yes, that's a good question. [00:21:25] Speaker 03: Does North Korea have sovereignty? [00:21:27] Speaker 03: Yeah. [00:21:27] Speaker 03: It certainly is a member of the United Nations, the United States. [00:21:31] Speaker 02: We don't recognize China for a long time, didn't recognize the Soviet Union. [00:21:36] Speaker 04: And Russia was not recognized until 1933. [00:21:37] Speaker 03: My answer to that would be, of course, in terms of premises on which we all can agree is that the executive has sole authority on this. [00:21:45] Speaker 03: The fact that North Korea is designated as a state sponsor of terrorism by the State Department as it is, which suggests that for these purposes, North Korea is a state unlike Palestine. [00:21:55] Speaker 03: The interesting thing is, this is an anti-terrorism act case. [00:21:58] Speaker 04: No, wait a minute. [00:21:59] Speaker 04: Stop for a second. [00:22:08] Speaker 04: prior to recognition. [00:22:09] Speaker 04: Cuba, North Korea, these are all states, are they not? [00:22:16] Speaker 04: Notwithstanding the fact that at the time they were not recognized by the United States. [00:22:21] Speaker 03: I think you're proving my point with your question, Judge Silverman. [00:22:25] Speaker 04: I thought I would make it hard for you. [00:22:27] Speaker 04: I'll have to rephrase that. [00:22:28] Speaker 03: All of the law on sovereign immunity, which turns on recognition as of the date the lawsuit is brought, there is a fair number of cases dealing with Russia that say, wait a minute, during a time when it was an unrecognized regime, they wouldn't have been entitled to sovereignty, but yet this lawsuit has been brought out. [00:22:50] Speaker 04: or not. [00:22:51] Speaker 04: And we see a number of cases where there was no [00:22:57] Speaker 04: were, in fact, states. [00:22:59] Speaker 03: So what I would say is yes to your question with this explanation, if I may, which is that its recognition is the first part of the equation. [00:23:08] Speaker 03: It's what recognition equals. [00:23:09] Speaker 03: Recognition equals comity, and it equals sovereign immunity. [00:23:13] Speaker 04: So is it a fair way to describe it? [00:23:15] Speaker 04: Recognition is a factor to be considered, but it cannot be decisive, because there are circumstances in which the government, the United States government, does not recognize [00:23:23] Speaker 04: a foreign state, and yet it would be a foreign state for purposes of the jurisdiction. [00:23:29] Speaker 03: No, I wouldn't go that far, with all due respect. [00:23:31] Speaker 03: I think what I'm talking about is that recognition is what sovereignty means. [00:23:35] Speaker 03: It is sovereignty that is the test under price, and it was explicated in the cases that followed. [00:23:41] Speaker 03: Let me give you what I think. [00:23:42] Speaker 04: In World War II, we continued to recognize the Dutch government in exile. [00:23:48] Speaker 04: Was that a state? [00:23:49] Speaker 03: It was a government in exile, not a state, for purposes. [00:23:55] Speaker 04: In other words, a state was the state occupied by Germany. [00:23:58] Speaker 03: No, I don't think so. [00:23:59] Speaker 03: I think it was the question is... It was one or the other. [00:24:02] Speaker 03: Well, it is probably one or the other, and I don't really know the answer to the Court's question, but I also don't think it drives the result here, because what I do think drives the result is... All I'm suggesting is that although recognition may be a factor, it cannot be decisive. [00:24:15] Speaker 03: But I have not found in any of the cases any factor other than sovereignty. [00:24:21] Speaker 02: You know, if we were to go, you're not saying we will. [00:24:24] Speaker 02: We have to write an opinion, right? [00:24:26] Speaker 02: And price is the precedent we have to follow. [00:24:29] Speaker 02: And we would have to say something more than, you know, the PA doesn't look like Libya. [00:24:34] Speaker 02: Right? [00:24:35] Speaker 02: Because that's all we know so far. [00:24:38] Speaker 02: We're trying to get at what is the principle that governs price. [00:24:42] Speaker 02: And in your briefing, I thought your suggestion was that recognition by the executive is an indispensable element of that. [00:24:50] Speaker 02: And yet, that can't be the case if we're going to allow North Korea, Cuba, China, if we're going to acknowledge, and the Soviet Union were states [00:25:01] Speaker 02: were sovereigns without recognition by the executive branch. [00:25:05] Speaker 03: I guess I would like to come back to the premise of your question. [00:25:08] Speaker 03: First of all, I think our argument is not recognition. [00:25:10] Speaker 03: Our argument has always been sovereignty. [00:25:12] Speaker 03: Recognition is the test in the United States for sovereignty. [00:25:17] Speaker 03: Every case that has politics. [00:25:18] Speaker 02: So you're saying, OK. [00:25:20] Speaker 02: So if there is no recognition by the United States, then there is no sovereignty? [00:25:24] Speaker 03: Not in a United States court, and that's all that matters for present purposes. [00:25:28] Speaker 03: So for example, in the TMR case. [00:25:30] Speaker 02: And so the cases are then China would not be, would not, China would have due process, before recognition, China would have due process rights. [00:25:40] Speaker 03: It's a binary world. [00:25:42] Speaker 03: Either there's sovereignty and immunity, and you fit within the construct of the Foreign Sovereign Immunities Act. [00:25:48] Speaker 03: I mean, if the court is looking to explicate a rule, I do think the binary explanation is the one that works, which is if you are a state, [00:25:56] Speaker 03: as defined under the Foreign Sovereign Immunities Act, then, of course, you're not a person, for purposes of the Due Process Clause, under Price. [00:26:03] Speaker 03: You then get the protections of the Foreign Sovereign Immunities Act, which is functionally a set of safeguards that works like due process. [00:26:11] Speaker 04: If you are not a foreign state, which in the United States depends upon the recognition... So you're saying the Constitution depends on the existence of the Foreign Sovereign Immunities Act. [00:26:20] Speaker 03: No, I think it depends on what the definition of a person is, and I think it's within the pen stroke of the President of the United States to declare somebody not a person if they recognize a foreign state. [00:26:31] Speaker 01: So if the administration got upset with, let's say, Sweden and said, we're no longer recognizing Sweden, and here's an executive order to that effect, [00:26:43] Speaker 01: then all of a sudden Sweden is a person. [00:26:46] Speaker 03: It becomes a person for purposes of the due process clause. [00:26:49] Speaker 03: It doesn't matter whether Sweden operates like a government. [00:26:51] Speaker 03: TMR, this court's decision on TMR, which immediately applied price set, we reject use of the core functions test for determining due process. [00:27:00] Speaker 03: It doesn't matter if you look, walk, and talk like a government. [00:27:03] Speaker 02: That certainly is a convenient way for administration by the court, but where's the law that supports that? [00:27:10] Speaker 02: to show us the case that says that. [00:27:12] Speaker 03: I think there are four cases that stand for it, and it goes back to Judge Silverman's question. [00:27:16] Speaker 02: None of them say it, though, right? [00:27:17] Speaker 02: You said they stand for it. [00:27:20] Speaker 03: Excuse me, I apologize. [00:27:22] Speaker 03: I think they all stand for the same proposition. [00:27:24] Speaker 03: And Roe Marm, on which Judge Silverman sat on the panel, is the most current explication of the price rule. [00:27:30] Speaker 03: And it, too, speaks in terms of foreign sovereign. [00:27:35] Speaker 03: Our position is quite clear. [00:27:38] Speaker 03: Sovereignty is what matters. [00:27:39] Speaker 03: To Judge Wilkins' question, sovereignty is recognition in the United States of the executive, as we know from the Zip-A-Dot. [00:27:45] Speaker 02: Is that the definition? [00:27:46] Speaker 02: Now, that's your argument about sovereignty, but where is law that tells us that an indispensable element of sovereignty is recognition by the executive? [00:27:56] Speaker 03: So I think in several cases, if I could, Judge Griffith. [00:27:58] Speaker 03: First of all, in Price itself, why he talks about sovereignty and why it uses the conclusion of juridical equality is that it says with sovereignty comes a level playing field of international rights. [00:28:10] Speaker 03: Comedy is extended. [00:28:12] Speaker 03: There are rights to be able to deal state to state in resolving problems. [00:28:17] Speaker 02: Libya could not have done that had it not been recognized by the United States. [00:28:21] Speaker 02: We're talking about recognition by the United States. [00:28:23] Speaker 02: We're one player in the international field. [00:28:26] Speaker 02: The Palestinian Authority has lots of relationships with lots of different countries. [00:28:31] Speaker 02: They just don't have recognition by ours. [00:28:33] Speaker 03: And I think you've put your finger on it, Your Honor, which is all that matters for purposes of the due process clause for this case and cases like them is what is the recognition status in the courts of the United States. [00:28:45] Speaker 03: It doesn't matter that Palestine is recognized by more than a hundred other countries worldwide as sovereign because the United States doesn't recognize them. [00:28:54] Speaker 03: The upshot of recognition by the executive is we wouldn't be standing here today because the anti-terrorism act. [00:29:00] Speaker 04: So if we recognize a government with respect to a nation and the government is in exile, [00:29:10] Speaker 04: It has no connection with the territory in question. [00:29:16] Speaker 04: It's in exile, but it still has a recognition. [00:29:20] Speaker 04: Then it is a state for purposes of price. [00:29:23] Speaker 03: What I would do is tweak your question by giving you this answer. [00:29:26] Speaker 04: Wait a minute. [00:29:27] Speaker 04: Just answer my question. [00:29:28] Speaker 03: No tweaks. [00:29:30] Speaker 03: The answer is if the United States treats the government in exile as a sovereign, then it is outside the ambit of due process and in the ambit of the Foreign Sovereign Immunities Act. [00:29:41] Speaker 03: And the National Council case says exactly that. [00:29:44] Speaker 03: It says we are dealing with the purported self-proclaimed government in exile. [00:29:52] Speaker 03: And the argument by the United States government in the National Council case was that due process doesn't extend. [00:29:59] Speaker 03: This court said, that's ridiculous. [00:30:02] Speaker 03: Just because they call themselves a government, just because they claim they are the government in exile, [00:30:07] Speaker 03: doesn't matter unless there is, and this is the court's words in National Council, the relationship of two sovereigns. [00:30:13] Speaker 03: Again, to Judge Griffith's question, the test is sovereignty, and all that matters in a United States court is whether the United States recognizes them as a sovereign. [00:30:23] Speaker 02: So to your hypothesis... And again, your authority for that, that last point, that the only thing that matters is recognition by the executive, what case do I redefine that? [00:30:32] Speaker 03: The treatment as a sovereign is what I'm using as a cognate for recognition by the U.S. [00:30:38] Speaker 03: executive. [00:30:38] Speaker 03: Zivotovsky is the case, of course, came out of this court that says the executive branch. [00:30:43] Speaker 02: Yeah, I know it came out of this court. [00:30:44] Speaker 03: I was aware of that. [00:30:46] Speaker 02: It came out of this court with a thud. [00:30:50] Speaker 04: That was unfair. [00:30:52] Speaker 03: Zivotovsky is the case. [00:30:54] Speaker 03: And, by the way, adopted by the Second Circuit of Sakhalin, that Zivotosky is what drives the answer to the question, that Zivotosky recognizes, to Judge Wilkins' question, that it is up to the executive to decide how we treat these powers and whether they're regarded as sovereign or not. [00:31:11] Speaker 03: And because it is up to the executive alone, it really doesn't matter what the United Nations does. [00:31:16] Speaker 03: Believe me, I'd be thrilled if recognition by the 100 other countries of the past had already mattered here. [00:31:21] Speaker 04: Because you don't have a limited time. [00:31:23] Speaker 04: Let's go to the due process. [00:31:24] Speaker 04: Inquiry, both general and specific. [00:31:28] Speaker 04: Do you agree with Appellant that her stronger argument is specific jurisdiction? [00:31:35] Speaker 03: On a relative basis, I think it's stronger because I think the general jurisdiction argument is a slam dunk. [00:31:40] Speaker 04: Because you think at home is the key there. [00:31:44] Speaker 03: I think there's no doubt that it's the key there. [00:31:46] Speaker 03: And again, I don't think this is an issue of first impression. [00:31:48] Speaker 03: The Mwane decision, if it means anything, is that due process applies. [00:31:53] Speaker 03: And that 14th Amendment due process, jurisdictional due process tests governing a 5th Amendment terrorist attack, it would be upsetting everything that Moany held to hold to the contrary. [00:32:05] Speaker 04: What about the argument that the 5th Amendment somehow is broader in conceptual as opposed to just geographical terms than the 14th? [00:32:15] Speaker 03: I think I like Judge Griffith's answer to that one, which is that is water well under the bridge. [00:32:21] Speaker 03: This court in the SEC versus Bilzerian case held that other than the geographic scope, there is no difference between the 14th and the Fifth Amendment. [00:32:31] Speaker 03: The Second Circuit in Sokola said, and it would apply equally here, we'd have to undo an awful lot of law. [00:32:36] Speaker 04: The Eleventh Circuit has a different view, doesn't it? [00:32:38] Speaker 04: The Eleventh Circuit has a view that somehow, under the Fifth Amendment, the test is reasonable. [00:32:43] Speaker 03: I think your honor is referring to the BCCI case, the Republican Panama case. [00:32:48] Speaker 03: That one, I don't think I'll say it's ancient history, but I think law has moved on quite a bit since then. [00:32:55] Speaker 03: I don't think there's really any dispute that Walden and Daimler provide the current tests. [00:33:01] Speaker 04: So let's go to Walden, the specific jurisdiction, okay? [00:33:05] Speaker 03: So on specific jurisdiction, again, I think Moany gives you the result. [00:33:09] Speaker 03: Moany was a specific jurisdiction case. [00:33:12] Speaker 03: It was, and I think this was Judge Griffith's question at the outset, it was a case where this court led with the conclusion that what was pled there. [00:33:19] Speaker 03: was an ongoing conspiracy to attack the United States. [00:33:23] Speaker 03: In retrospect, of course, those facts were proven to be true, because it talked about al-Qaeda's war against the United States. [00:33:29] Speaker 03: There's nothing close to that in the complaint here. [00:33:32] Speaker 03: Now I'll do a little bit of ancient history. [00:33:34] Speaker 03: Their causation theory. [00:33:35] Speaker 04: What about their argument in the specific jurisdiction? [00:33:38] Speaker 04: You focus on the defendant's relationship to the forum, and here we should look to national interest, and therefore we should look at the ATA. [00:33:49] Speaker 04: The ATA is the key expression of national interest and therefore [00:33:55] Speaker 04: We should see that as reflecting a support for specific jurisdiction in this case. [00:34:02] Speaker 03: Well, it's not a monochromatic national interest. [00:34:06] Speaker 03: The ATA is certainly relevant to national interest. [00:34:08] Speaker 03: But in this area of the law, as this court knows far better than I do, national interest is expressed by Congress bump up against the Constitution every day of the week. [00:34:17] Speaker 03: And it's why this court has spent so much time and everything ranging from the military commissions [00:34:21] Speaker 03: to cases like this to try to figure out where, when legislative intent bumps up against the Constitution, something is limited. [00:34:29] Speaker 03: But here, it's easier, because the United States, not only in the statement of interest in the Sokolo case, but in the Bernstein v. Kerry brief, in this court said, wait a minute. [00:34:39] Speaker 03: It's not a one-sided battle. [00:34:41] Speaker 03: The Palestinian Authority of the modern era, which is what we're dealing with here. [00:34:44] Speaker 03: Forget Klingon, but that's ancient history. [00:34:46] Speaker 03: The Palestinian Authority of the modern era is a partner for peace with the United States in the Middle East, an important stabilizing force. [00:34:53] Speaker 03: And that is an important national interest that gets folded into the Walden test. [00:34:57] Speaker 03: And oh, by the way, also precludes the kind of imaginative declaration from Professor Attaquat, which is rooted in ancient history. [00:35:04] Speaker 03: It talks about events that stopped in 2004 when Yasser Arafat died. [00:35:09] Speaker 03: This is a 2011 terrorist attack. [00:35:12] Speaker 03: As Your Honor knows from other things in the past, in foreign policy, seven years is light years. [00:35:17] Speaker 03: And when the plaintiffs are rooted in the Yasser Arafat era, but we're talking about national interests of today. [00:35:25] Speaker 03: Does the PA have a relationship with Hamas? [00:35:28] Speaker 03: Does the PA have a relationship with Hamas? [00:35:30] Speaker 03: I think the answer to that is they do have a relationship. [00:35:32] Speaker 03: It's a terrible one. [00:35:34] Speaker 04: But they're fused, aren't they not? [00:35:36] Speaker 03: No, they're not. [00:35:37] Speaker 03: Quite the opposite. [00:35:38] Speaker 03: Not only is Hamas not part of the Palestinian government, but United States aid to Palestine, which the Palace Council talked about, by legislation is cut off if Hamas ever joins a government with the current Fatah policy that is running the Palestinian Authority. [00:35:53] Speaker 03: So the answer on that is decidedly no. [00:35:56] Speaker 03: I think, Your Honor, you're probably aware from the newspapers that the municipal elections in Palestine have just been suspended by a court, and Hamas is claiming that this is an effort to keep Hamas out of the government. [00:36:07] Speaker 03: Hamas is not in the government. [00:36:09] Speaker 03: Part of the reason why the Palestinian Authority... If Hamas were in the government, would your case be different? [00:36:14] Speaker 03: I don't think my case would be different. [00:36:15] Speaker 03: I think the national interests might be judged differently. [00:36:18] Speaker 04: So wouldn't that change your case? [00:36:20] Speaker 03: Well, my case is based on the current statement of the U.S. [00:36:23] Speaker 03: government. [00:36:23] Speaker 04: I understand, but going forward, would it change your case? [00:36:25] Speaker 03: If hypothetically the United States government said, A, Hamas has entered the government, and B, as a result of that, we no longer regard the Palestinian Authority as the close friend that we do, yes, my case would be different, but that's of course not our case. [00:36:39] Speaker 03: I'm happy to address any of the remaining questions the Court may have. [00:36:43] Speaker 03: I don't think I got sequentially beyond number one, maybe a little bit to number three, but of course I'm here to assist the Court in any way. [00:36:52] Speaker 02: Thank you very much. [00:37:00] Speaker 05: I want to follow up on a couple of points. [00:37:02] Speaker 05: First, the Court is right that there is nothing in price that points to a sovereignty or government recognition test. [00:37:09] Speaker 05: Instead, Price talks about a number of factors that animate when a foreign government... First of all, even just looking at the language of Price, the court says that it's holding extends to, quote, an actual foreign government. [00:37:20] Speaker 05: It doesn't say only one that's sovereign. [00:37:22] Speaker 05: That's an exception. [00:37:23] Speaker 05: The PA is trying to read into it. [00:37:24] Speaker 05: But more than that, the reasoning of price, if you go through each factor, the text of the due process clause, the history, the tradition, the policy, all of those apply here. [00:37:33] Speaker 05: And if the court is uncomfortable with a broader test saying that when a government declares itself a government, we treat it as one for purposes of due process... If I start a government in a small country in Africa, [00:37:47] Speaker 04: with 100,000 persons, and I have a geographical area, under your view, I'm a state. [00:37:55] Speaker 05: Not that you're a state, but that you're not entitled to do process rates because you carry on an international arena as a government. [00:38:01] Speaker 04: Any government, therefore, is equivalent under, is covered by price. [00:38:06] Speaker 04: Any government, whatever the size of the government. [00:38:10] Speaker 05: We believe that's the case, but if the court wishes to... Women, no, you believe that. [00:38:14] Speaker 04: That's your rule. [00:38:15] Speaker 05: Yes, because they interact in the international arena as a government. [00:38:18] Speaker 05: They shouldn't, they don't need to protect themselves. [00:38:21] Speaker 04: Why would ISIL be covered as a state? [00:38:25] Speaker 05: Not as a state, but as a self-proclaimed government, there's no reason we need to cloak ISIS or ISIL in constitutional protections. [00:38:33] Speaker 04: So the answer is, so ISIL went on to have due process. [00:38:36] Speaker 05: No, we don't believe that ISIS should have due process rights. [00:38:39] Speaker 05: It doesn't have a liberty, an individual private actor liberty interest against the United States. [00:38:44] Speaker 05: However, if the court wished to rule more narrowly, it could go through the reasoning of price. [00:38:48] Speaker 05: The PA satisfies all of it, because it conducts itself like a foreign government. [00:38:52] Speaker 05: It interacts with the United States as a foreign government. [00:38:56] Speaker 05: Whereas ISIS probably would not meet that test. [00:38:58] Speaker 05: So that's a narrower grounds for finding that price applies here. [00:39:03] Speaker 05: I would just note on the issue of sovereignty as well. [00:39:07] Speaker 05: We know that this test of, you know, if you're sovereign, you don't have due process rights, but if you don't have sovereignty, it can't be right because the Foreign Sovereign Immunity Act, under that act, Congress can withdraw, it can abrogate sovereignty in certain circumstances, and under the PA's argument, [00:39:23] Speaker 05: Congress withdraws sovereignty for certain types of cases from a state, does that mean they suddenly get due process rights? [00:39:30] Speaker 05: The applicability of whether you're a person for purposes of the Constitution can't depend on an act of Congress. [00:39:36] Speaker 04: We've really narrowly construed price to limit it to states that have sovereignty, right? [00:39:45] Speaker 05: That's right. [00:39:46] Speaker 05: And there's nothing in price that suggests such a limitation. [00:39:48] Speaker 05: Again, it talks about actual, yes. [00:39:50] Speaker 04: Well, as a practical matter, the court has limited, right? [00:39:53] Speaker 05: Oh, has limited. [00:39:54] Speaker 05: Yeah. [00:39:54] Speaker 05: I don't believe that's the case. [00:39:56] Speaker 05: GSS and TMR are about whether a state instrumentality, which I'm just mentioning because other PAs noted that as limitation. [00:40:02] Speaker 04: But if you see price as an exception to the general jurisdictional jurisprudence, [00:40:09] Speaker 04: than that it would be limited to a state that has sovereignty. [00:40:17] Speaker 04: What incidentally, would Libya now today have the same status? [00:40:25] Speaker 05: Libya as a government would, even though Congress has abrogated or had in the past abrogated sovereignty. [00:40:32] Speaker 04: What happens with a failed state? [00:40:35] Speaker 05: If, again, you can hold them against the price factors and say, [00:40:41] Speaker 05: You know, are they interacting in the international arena? [00:40:43] Speaker 05: Do they have other forms for redress? [00:40:44] Speaker 05: Are they a member of the ICC, like the PA? [00:40:47] Speaker 05: Or you can say, if this entity is holding itself out as a government of a state, it's an aspiring service... But you know, your theory is it's holding itself out as a government. [00:40:56] Speaker 04: That's enough. [00:40:57] Speaker 05: It is. [00:40:57] Speaker 05: It is. [00:40:57] Speaker 04: It doesn't have to have a state. [00:40:59] Speaker 04: It doesn't have to have a territory. [00:41:00] Speaker 05: That's right. [00:41:01] Speaker 04: Is that correct? [00:41:02] Speaker 04: It doesn't have to have territory. [00:41:03] Speaker 05: That is correct. [00:41:05] Speaker 04: Now you can argue that a government has... Now you're taking price and broadening enormously. [00:41:09] Speaker 05: Well, you can say that... [00:41:11] Speaker 05: Government, by definition, tends to have a territory. [00:41:15] Speaker 04: Any organization claiming to be a government would normally claim to have... I could have 25 judges and be a new government somewhere in Africa. [00:41:22] Speaker 05: Again, if this test, you know, we believe that this is the best standard, because if you're holding yourself out to any government, there's privileges that come with that, there's responsibilities. [00:41:30] Speaker 05: But again, you can go through the steps of price, and it applies to the PA, but it would not apply to ISIS, because ISIS is not a member of 39 treaties, it's not acting, it doesn't have a diplomatic presence. [00:41:41] Speaker 05: To jump back to the, if there is your process, this is a jurisdiction point. [00:41:46] Speaker 04: What's your best argument there? [00:41:48] Speaker 05: Our best argument, look at the Supreme Court case in Jay McIntyre. [00:41:52] Speaker 05: The Supreme Court talks about the liberty interest in due process, it's not in a vacuum, it's in relation to the authority of the sovereign. [00:41:59] Speaker 05: And here, the authority of the sovereign is the federal power, and the federal power, not the state's, [00:42:03] Speaker 05: has the power and the responsibility to protect its citizens. [00:42:07] Speaker 05: States don't have to worry that, you know, if a citizen has to sue in Georgia instead of Nevada, that it's not going to be treated fairly. [00:42:12] Speaker 05: Whereas here, the U.S. [00:42:14] Speaker 05: does have to worry that U.S. [00:42:15] Speaker 05: nationals harmed in international acts of terror have no forum if the U.S. [00:42:18] Speaker 04: doesn't provide it. [00:42:19] Speaker 04: But for civil jurisdiction, you have to look at the particular facts in this case, right? [00:42:23] Speaker 05: That's right, but in any ATA case, so our case has additional facts that would bolster our specific jurisdiction argument, namely that the PA's policy was designed to influence the United States. [00:42:33] Speaker 04: But on that, your contention is almost diaphanous. [00:42:38] Speaker 04: All you have is this professor at St. [00:42:40] Speaker 04: Mary's College, is it? [00:42:41] Speaker 05: But again, this was decided on a motion to dismiss. [00:42:44] Speaker 05: We asked for jurisdictional discovery. [00:42:46] Speaker 05: It was denied. [00:42:47] Speaker 05: Furthermore, we allege in the complaint that this was part of a PA policy or practice of trying to influence... Do you think the allegation alone gets you... Well, no, but the allegation's related to the substance of our claim, and so it's intertwined with substantive issues. [00:43:00] Speaker 05: And under the case law, the court should have deferred ruling. [00:43:02] Speaker 05: At the very least, should have deferred ruling on this until the substantive issues [00:43:05] Speaker 04: We did have a chance to find evidence, to present evidence, showing exactly how the PA intends... Well, don't you have to have more than what you had initially to show the connection between the defendant and the forum? [00:43:19] Speaker 05: Well, again, under the Fifth Amendment, no. [00:43:22] Speaker 04: I mean, well, the connection, first of all, is... You have to have a connection, right, between the defendant and the forum? [00:43:27] Speaker 04: And your answer is no, not under the Fifth Amendment. [00:43:30] Speaker 05: Under the Fifth Amendment, it's enough here, given that the nature of the tort is terrorism, and that the U.S. [00:43:35] Speaker 04: interest is so strong... What is your standard under the Fifth Amendment? [00:43:38] Speaker 05: In this case, [00:43:39] Speaker 04: No, no. [00:43:40] Speaker 04: What's your general standard on the Fifth Amendment? [00:43:42] Speaker 04: You say the Fifth Amendment is going to have a more relaxed standard than the 14th. [00:43:45] Speaker 05: It's not even that it's more, it's just you balance the federal interest and taking into account the federal authority, you consider the nature of the tort, which... Okay, now federal authority, we give millions and millions of dollars to the PA. [00:43:57] Speaker 04: So why is it in the federal interest to have a lawsuit against the PA that we just take the federal money and divert it to a plaintiff? [00:44:07] Speaker 05: Because the definitive statement of U.S. [00:44:09] Speaker 05: policy on this is the text of the ATA. [00:44:11] Speaker 05: I mean, there's other... Well, no, there's not. [00:44:13] Speaker 04: There's U.S. [00:44:13] Speaker 04: policy also in the executive branch, too, isn't there? [00:44:16] Speaker 04: And that was a... wasn't that an issue in the case that Judge Griffiths referred to earlier? [00:44:23] Speaker 05: But there's contradictions. [00:44:24] Speaker 05: So without authority, I mean, if you're going to listen, if you're going to give decisive weight to various statements of administrative officials, administration officials, well, in the past, Secretary Rice said that the PA should defend these lawsuits. [00:44:37] Speaker 05: And so there have been inconsistent messages on that. [00:44:41] Speaker 05: And to be clear, it's not even that they're inconsistent. [00:44:42] Speaker 05: The US most recently, in Sokolo, weighed in about the size of the bonds and not about the underlying merits of whether the PA should answer in court. [00:44:50] Speaker 05: They took no position on that and haven't taken a position on that. [00:44:53] Speaker 05: And so I think the definitive statement here really is the text of the ATA, which was passed by Congress, signed by the President, that's the statement of U.S. [00:45:01] Speaker 05: policy here. [00:45:01] Speaker 05: If there are no further questions, I will thank the court for its attention. [00:45:07] Speaker 02: Thank you. [00:45:07] Speaker 02: Thank you very much. [00:45:08] Speaker 02: The case is submitted.