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Case number 17-5207, Basin Al-Talani and L. Appellant versus.

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Thank you, Ron.

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Good morning, members of the panel.

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May it please the court?

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I'm Martin McMahan.

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I haven't been up here in a while, so forgive me if I violate some appellate advocacy protocols.

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I have a good friend and mentor, Jake Stein, and I sought his advice on how to approach this appeal, or oral argument, anyway.

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And he said, basically, don't repeat the arguments in the briefs.

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Make a couple of points, and then open it up for discourse and discussion on some vital issues like touch and concern test or political question doctor.

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So if there's one point I can leave you with before we go off on discussions,

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is that there are policies that these defendants have financed, encouraged, promoted in the occupied territories.

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These policies are anathema to core American values.

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Number one, these folks don't like paying income taxes, and I regret that because yesterday I sent a substantial check to the IRS,

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These donors take tax write-offs for purchasing military hardware.

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And the 501C3s every year file fraudulent 990s.

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That's their annual return.

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They tell their donors that all the money.

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Mr. McMahon, this is not criminal prosecution.

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Can you give us, as specifically as you can, your statement of the claim

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that you're asserting that you believe does not raise a non-justiciable political question.

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Yes, Your Honor.

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The conduct begins on U.S.

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soil.

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These individuals raise funds, their purposes.

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What's the legal claim that you're referring to?

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I'm sorry?

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The legal claim that you are referring to.

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Well, under ATS, financing extradition killings, financing ethnic cleansing, financing

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genocide, war crimes.

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And they raise money.

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They send that funds overseas.

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They violate the Money Laundering Act, both America and Israel.

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And they finance violence in the occupied territories.

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And the monies are used to maim and murder Palestinian civilians.

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And some of the claims in this case, Your Honor, concern extrajudicial killings that these defendants have financed.

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And your allegations of intent and or knowledge that the funds are going to that end, the most specific allegations that you have, are where in your complaint?

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Well, in the proceedings below, we prepared a memorandum of opposition.

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If you look at page seven,

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Israeli Ambassador Mark Ginsburg.

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I'm talking about in the complaint, a paragraph in the complaint, because as I understand it, this case is at the pleadings.

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Well, Your Honor, we alleged throughout the complaint that the funds were sent overseas to accomplish these criminal acts.

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There's also a section in the complaint that details why these defendants were on knowledge.

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Havertz, the New York Times of Israel, started publishing articles in 1990 about this.

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And there are other references to four government reports from the Israeli government official reports about the theft of property, about maiming and murdering Palestinians.

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I have the Spiegel data research report here published by Israel.

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Forged deeds and a number of settlements.

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Also, there's a reference to firing ranges established on these settlements.

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Firing ranges and sniper schools

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are routine expenditures for these settlements.

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Where does the money come from?

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Right here on U.S.

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soil.

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And that should satisfy the touching concern test, although I don't think the court really addressed that issue.

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Does that answer your question, Your Honor?

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not very specifically, you argue that your claim does not require any determination or rely on a determination of the legality or not of the settlements.

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Is that because you believe the determination has already been made that they are unlawful and you're relying on that?

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Or because you think even if it were the case that they were lawful, your claim nonetheless is viable?

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Yes, Your Honor.

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You probably read the complaint.

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In the complaint, I forget which page it is, but we laid out five pages showing that for 40, 45 years or so, 10 American presidents, eight secretaries of state have declared them to be illegal, and they are the main reason why there isn't peace in the OPT.

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But whether or not the settlements are legal or not, because we said in our complaint, we don't want that relief, we don't need that relief,

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Let me ask you this, Your Honor.

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Extrajudicial killings, the lead plaintiff claims, his brother-in-law and his sister were murdered literally by Israeli settlers living next door to his home.

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Now, what do extrajudicial killings, he owns a home and a property, by the way, what do extrajudicial killings have to do with the legality of settlements?

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Murder and genocide and ethnic cleansing have nothing to do with who owns a particular piece of dirt in the occupied territories.

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What is your cause of action under the Torture Victim Protection Act?

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Well, we have American citizens, Your Honor.

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I think there are at least three, perhaps four.

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Their property worth a couple of million dollars has been literally stolen by the settlers.

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And the Spiegel data report, which we reference in the complaint, references how it's done, forged deeds.

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The folks in America send over money to pay professional foragers to come up with deeds, the Palestinian property, which are complete forgeries.

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So that's how the properties are illegally taken.

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Your TVPA claim is against American defendants?

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Your TVPA claim is against American defendants?

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Yes, Your Honor.

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Under our circuit precedent, the TVPA suits don't run against private U.S.

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actors?

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Well, I wasn't aware of that, Your Honor.

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We have complained that the American citizens who are plaintiffs who have lost property

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can focus on terrorism practiced overseas by these entities.

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International terrorism, defined under 1829-39C, means you're promoting violence overseas, and you're trying to intimidate a civilian population.

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So that's our theory under that statute, Your Honor.

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They're promoting international terrorism.

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But I was not aware of that case, if you have that for me.

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Would you agree that count four, which is the trespass, makes it necessary for us to decide who owns the property?

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There's two views on that.

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Every one of our plaintiffs under cause of action four have deeds.

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Most of them are in Hebrew.

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We decided through our due diligence that we couldn't file it just as plainly good faith unless they had deeds.

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But again, a court can decide, I think, with expert opinions from our side, but with deeds that Mr. Smith does indeed own that property and no longer owns the property because it's now a military barracks or it's now a Jewish-only highway or a Jewish-only school.

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So I think a competent trial judge

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can, in the pre-trial conference, whittle claims down, perhaps, and say, I'm not going to allow those to sign up proof, but I'll allow four claimants to testify that they're probably, that they owned it, was basically trespassed upon and converted by these defendants.

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I'll allow that to go forward.

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I don't think we're at that stage yet, Your Honor.

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So a claim of murder or a claim of fraudulent taking of property is not alone enough to bring a case under the alien tort statute.

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Your allegations are that

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These actions were done with an effort to obliterate a people.

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They were done on the basis of nationality or religion or ethnicity or all of the above.

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And that's what makes them in violation of the ATS.

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Extrajudicial killings, Your Honor.

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Ethnic cleansing.

[00:10:29] Speaker 02:
Well, extrajudicial killings, a wrongful death is an extrajudicial killing.

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It doesn't necessarily rise to the level of a violation of the law of nations.

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A core human rights violation action will under the Alien Tort Statute.

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So I'm asking you to help us by

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explaining why individual conduct, individual actions that you've alleged, what is it that brings them from what under American law would be a state law property claim or a state law wrongful death claim into the alien tort statute.

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Well, Your Honor, sprinkled throughout our lawsuit are all the newspaper reports, whether in Israel or here, or the government reports that confirm what has been going on in the OPT, including an extradition of killings.

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So the folks here in America

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collecting money for alleged transmission of funds to Israel proper, which is a complete lie and misrepresentation.

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They'd go to the OPT to fund settlements.

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So when those folks knowingly send money overseas, and they travel to the, at your expense by the way, they travel to the OPT, and they see there are no Palestinians left anymore.

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Gee, I wonder why that occurred.

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So I think, Your Honor, these folks have the intention to rid the West Bank of all non-Jews.

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They've done a very good job.

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400,000 Palestinians no longer live in the OPT.

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49,000 homes have been confiscated.

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Your decision in Simon versus Republic of Hungary says confiscation of homes, systematic confiscation of homes, is genocide.

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So I think there are valid claims that we advance under the ATS, which are war crimes, which violate the law of nations and our constitution.

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There are circumstances and have been over the several decades covered by your complaint in which Israelis could lawfully obtain permission to settle in various places in the West Bank.

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And there are also situations in which they are alleged to have done so unlawfully.

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So the fact that somebody could arrive in an area and say there are no Palestinians here, how have you alleged that person is supposed to know that the existence of

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Israeli Jews rather than Palestinians in a particular place is the result of war crimes crimes against humanity genocide and the like Is that that's the basis on which you're asserting that there's knowledge is somebody going there and saying where are the Palestinians?

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You can take time to answer you may take the time to answer I

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I believe that when, let's face it, not all Jewish settlers are terrorists.

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Not all Jewish settlers have stolen Palestinian property.

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We don't allege that in the lawsuit.

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But there's a group of violent, belligerent settlers that take target practice every morning and kill Palestinians.

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That's our complaint for lead plaintiff Ali Al-Tanini.

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He lost a brother and a sister-in-law because these folks take target practice.

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Now, in terms of your question, if they come upon a piece of property, there's an American plaintiff, Linda Katib.

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She has six parcels of property.

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Well, she hires a lawyer over there, which is detailed in the lawsuit.

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And he comes back and says, you don't own those anymore.

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Why?

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Because Palestinian, I mean Jewish settlers have taken them over.

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So I don't know, I'm not complaining about all Jewish settlers and I'm not saying that we require a determination that settlements are legal or not.

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We do not.

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We require that those folks who are promoting violence here in America, collecting $2 billion a year in an annual money laundering scheme, and that's being sent overseas to promote violence, which violates Mr. President Clinton's executive order and President Bush's executive order.

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They know what they're doing, Your Honor.

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They visit the settlements every year at your taxpayer expense.

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And they see there are no more Palestinians here.

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All right.

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Thank you.

[00:15:05] Speaker 05:
So I do have my three-minute rebuttal time.

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You have one minute left.

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We'll give you some more time.

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Thank you.

[00:15:12] Speaker 06:
Mr. Pullen.

[00:15:44] Speaker 01:
and Elliot Abrams.

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The appellants in this case have forfeited any claim on appeal that the district court heard in its application of the political question doctrine.

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Despite this court's instruction in its April 12th order that all issues and arguments must be raised by appellants in the opening brief, the appellants did not present any argument that the district court misapplied the political question doctrine.

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Instead,

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In the event that the court decides to overlook the forfeiture, the district court's judgment was correct.

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My concern is, why do you think the political question doctrine is at play?

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They are making straight statutory claims.

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Whether you agree with them or not, whether there's a cause of action, it's a different question.

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And we have said, the Supreme Court has made it clear in Zlatowski,

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which wound its way up, they made it very clear, statutory or constitutional claim, that's what courts do.

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And the district court's concerns under the umbrella of political question have nothing to do with the resolution of the statutory claims.

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Statutory claims can be addressed right or wrong, there is or is not a cause of action.

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And we have a lot of opinions in this court in recent years

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others as well, with Zivotosti being the principal point.

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We don't go to the political question doctrine as an expedient to avoid statutory questions that may seem messy.

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We decide them.

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That's what we're here for.

[00:17:46] Speaker 01:
Well, I think just the fact that there is

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said in Al-Shifa override the Article III.

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Does Al-Shifa somehow overturn Zivotosky?

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No, but I think... Well, then let's talk about Zivotosky, Horany, Rawls, other such cases.

[00:18:10] Speaker 01:
Certainly, I mean, Zivotosky involved... Military targeting.

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That's a lot different from what we're talking about here.

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I'm sorry, Al-Shifa did, yes.

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But when the court looks at whether there's a political question, as Baker instructs and Zipytosky carries that analysis forward, the court looks at the questions presented in terms of the history of the management by the political branches,

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It looks at the... No, no, that's really backwards.

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I thought what Zivotosky was trying to straighten our heads on that.

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If there's a statutory claim, it isn't whether it's right or wrong.

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If the party coming in says, I'm resting my claim on, here are the statutes that I think are in play,

[00:19:01] Speaker 03:
The court then considers whether there's a cause of action.

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That's the first thing.

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And then if there is, we proceed to decide the statutory claim.

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We don't say, oh, well, you know, this is kind of a messy political thing.

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And so maybe someone in the executive branch will be agitated or Congress might be agitated.

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If there is a statute that is claimed to be in play, it's our job to decide

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the alleged cause of action under that statute.

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I don't think Zlatowski is... You can always find, let me make my point this way, you can always find political messy situations in cases of this sort.

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And that's not a reason to run to the political question doctrine.

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You decide it under the statute.

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And it's a pretty straightforward exercise here under ATS and under the torture victim statute.

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There are a lot of claims, and that may make it seem hard, but it's really pretty straightforward.

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They're resting on a couple of things where the claim is going to be very hard, but it's very straightforward how to work your way through it.

[00:20:03] Speaker 01:
They either have it or they don't.

[00:20:08] Speaker 01:
The political question doctrine here is implicated in a few different ways.

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One, adjudicating the rights and liabilities of the Palestinian and Israeli people with respect to settlements thrust the judiciary into a foreign relations matter that the executive has been trying to actively resolve for years and does so in a manner that would constrain policy discretion.

[00:20:31] Speaker 03:
No, the other way to look at it is, sir, ma'am, what's your claim on the ATS?

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Genocide.

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The stuff you're talking about is all irrelevant.

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Genocide.

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Okay, let's assume that that violates the law of nation.

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Now, what's your claim with respect to that?

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Do you have enough to stay in court?

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Are you stating the cause of action?

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If there's enough to keep you there, we're going to get rid of it on summary judgment?

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Or what?

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That's the way you proceed.

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They are resting on statutes that are on the books,

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And there's at least a plausible suggestion.

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It may be nothing more than their way to try and stay in court.

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But it's there, and we're supposed to decide it.

[00:21:15] Speaker 01:
Well, with respect, I don't think merely the invocation of a statute avoids the application of the political question doctrine.

[00:21:23] Speaker 01:
We need to look at the type of claim that is being presented, what

[00:21:30] Speaker 03:
But if those claims don't arise under ATS, the answer is you haven't stated a cause of action.

[00:21:37] Speaker 03:
Not political question, if you haven't stated a cause of action.

[00:21:40] Speaker 01:
The Supreme Court has cautioned that ATS cases especially have grave risks of interfering with foreign policy.

[00:21:49] Speaker 03:
Yeah, which is why, counsel, that's my whole point, which is why the Supreme Court has narrowed ATS down to almost nothing.

[00:21:56] Speaker 03:
But that's where they want to go.

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So that means they got a really hard road, big hill to climb.

[00:22:03] Speaker 03:
It's not a reason to run to the political question doctrine when they're putting themselves in a place where the cause of action is very hard to show.

[00:22:14] Speaker 02:
Go ahead.

[00:22:15] Speaker 03:
I'm sorry.

[00:22:16] Speaker 02:
I was just going to say, Mr. Pum, just to sort of

[00:22:20] Speaker 02:
I think give you a clearer case maybe than this one of what might be behind some of the

[00:22:29] Speaker 02:
efforts on the courts to confine the political question doctrine to its proper place where it really does deal with conflicts between the branches or matters that are constitutionally allocated to another branch.

[00:22:42] Speaker 02:
If there were U.S.

[00:22:46] Speaker 02:
teachers working in the occupied territories and they were captured and tortured,

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would they have a claim under the ATS?

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And the fact that they are there in a very contentious place where sovereignty is under dispute and maybe who the peacekeepers are around the university where the professors are, it wouldn't prevent the court, wouldn't render that a political question.

[00:23:13] Speaker 02:
The fact that it's happening in and maybe even infused with the passions of

[00:23:19] Speaker 02:
this long-standing dispute, there would still be an ATS claim, would there not?

[00:23:30] Speaker 01:
What's important to do here is look at the claims that the plaintiffs have raised and the types of questions that they ask the court to make in their complaint.

[00:23:43] Speaker 01:
They say that settlement expansion necessarily entails ethnic cleansing.

[00:23:50] Speaker 01:
They try and hold Mr. Abrams liable for genocide and crimes against humanity,

[00:23:57] Speaker 01:
testifying to Congress that Palestinians are the root cause of violence.

[00:24:02] Speaker 01:
They say that some of the donors have financed the Gaza invasions during which Israeli military forces murdered approximately 3,500 civilians.

[00:24:12] Speaker 01:
and that the corporate defendants participated in war crimes by participating in the condemnation and demolishment of 49,000 Palestinian homes.

[00:24:24] Speaker 01:
All of these questions and the way they're presented, asking the district court to draw big picture conclusions with respect to settlements, all invite the court to essentially pick a side in this very sensitive

[00:24:38] Speaker 01:
international foreign policy area.

[00:24:42] Speaker 03:
Not if the court stays within the framework of ATS.

[00:24:46] Speaker 01:
That's what we do.

[00:24:47] Speaker 03:
That's what we're paid to do.

[00:24:49] Speaker 03:
That's what we're appointed to do.

[00:24:50] Speaker 03:
The fact that parties make large noisy messy claims

[00:24:55] Speaker 03:
doesn't mean that we're unable to stay within the framework of a statute.

[00:25:00] Speaker 03:
That's why I asked, what's the claim that, I was curious, what are their allegations to support the claim under the Torture Victim Protection Act?

[00:25:08] Speaker 03:
Because I know what that requires.

[00:25:11] Speaker 03:
I didn't hear an answer that was helpful, and that may be the way it gets addressed in the district court.

[00:25:17] Speaker 03:
That's what we do.

[00:25:19] Speaker 03:
The fact that a party makes a lot of noisy claims along the way,

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doesn't take us away from the statutory claim that's before us.

[00:25:30] Speaker 03:
We don't have to decide all of the things that parties say purportedly in support of a statutory claim, which we would say are irrelevant.

[00:25:45] Speaker 01:
Certainly I see that I've gone over my time.

[00:25:48] Speaker 06:
Well, let me ask you a question about Al-Shifa and the defendants here who are, they're not defendants, but the actions in challenge that were taken by Israeli military.

[00:26:02] Speaker 01:
Yes.

[00:26:03] Speaker 06:
Can you address that under Al-Shifa?

[00:26:05] Speaker 01:
Yes, the plaintiffs have brought several claims that expressly touch on actions taken by the Israeli armed forces.

[00:26:17] Speaker 01:
They claim that simply... We know what they claim.

[00:26:22] Speaker 06:
How does that fit under al-Shifa?

[00:26:24] Speaker 06:
Is that your position?

[00:26:26] Speaker 01:
Well, I think in light of the significant

[00:26:35] Speaker 01:
military and political support that the United States provides to Israel, a determination by a court that Israel is involved in long-standing patterns of genocide and crimes against humanity, specifically through its military, which again the United States provides support for.

[00:26:55] Speaker 01:
calls into question and passes judgment on the wisdom of United States foreign policy with respect to Israel.

[00:27:05] Speaker 01:
And this court has said repeatedly that the courts are not a forum for reconsidering the wisdom of discretionary foreign policy choices by the United States.

[00:27:16] Speaker 01:
And so those claims do that, I think, very directly.

[00:27:20] Speaker 02:
You're clearly right that there are many statements and requests that are made in the plaintiff's pleading that do butt up against foreign policy determinations made by the United States over the years.

[00:27:36] Speaker 02:
It's a very broad complaint with lots and lots of factual allegations and is it your position that if some of the allegations are that

[00:27:46] Speaker 02:
rogue settlers, unaffiliated with the Israeli government, were killing Palestinians, were fraudulently taking their homes, and were motivated by a genocidal desire to eliminate all the Palestinians in the area.

[00:28:04] Speaker 02:
Would that be covered by the political question doctrine?

[00:28:07] Speaker 01:
I think it would, to the extent that the government has determined... Well, it's a little difficult to say what if there were a different case presented, because we've looked at the complaint that the plaintiffs have filed, but the government has determined that the adjudication of this case interferes with its conduct of foreign affairs, specifically...

[00:28:34] Speaker 01:
In one way, because the government's long-standing policy, which the Supreme Court acknowledged in Zlatowski, is that the appropriate approach to resolution of the Palestinian-Israeli conflict is through direct negotiation between the parties involved, and that there can't be a solution imposed from an outside party on them.

[00:28:56] Speaker 01:
And determining the rights and liabilities of the Palestinian and Israeli people with respect to these lands very much constrains the scope of executive discretion to achieve that negotiated settlement.

[00:29:13] Speaker 02:
So you didn't have an answer for my question except that you think that's not what's been alleged.

[00:29:18] Speaker 01:
Yes, and I think it could still interfere in that way if the way the complaint is drafted calls on a court to determine rights to land in this area where sovereignty is hotly disputed.

[00:29:34] Speaker 02:
And I just have one more question, which is the position of the United States.

[00:29:37] Speaker 02:
As you know, the appellants spent a lot of their brief talking about whether the United States was required to file a statement of interest or not, and the United States did file.

[00:29:50] Speaker 02:
a brief, is that the position of the United States government, is that the State Department's position in this matter, or is that the position of the litigating arm in the Justice Department?

[00:30:02] Speaker 01:
No, so the plaintiffs are operating under mistaken impression.

[00:30:05] Speaker 01:
I understand that.

[00:30:06] Speaker 02:
I'm just asking you a question about the position that you're representing here.

[00:30:10] Speaker 01:
Have you consulted with the State Department?

[00:30:12] Speaker 01:
So I represent the position of the United States government, of which the State Department is a part.

[00:30:16] Speaker 01:
Exactly.

[00:30:17] Speaker 01:
There is a routine process for gathering the views of interested agencies.

[00:30:23] Speaker 01:
The normal practice was followed here.

[00:30:24] Speaker 01:
The government was a party to the litigation.

[00:30:27] Speaker 01:
In those cases, it expresses its views through its filings made by the Department of Justice.

[00:30:32] Speaker 01:
There's nothing suspect or out of the ordinary about that.

[00:30:34] Speaker 01:
Thank you.

[00:30:35] Speaker 01:
Thank you very much.

[00:30:47] Speaker 04:
Thank you, Your Honors.

[00:30:48] Speaker 04:
I want to pick up on some of the questions that were asked by the members of the panel.

[00:30:53] Speaker 04:
Judge Edwards, I think it has been made clear in the case law from this court and from the Supreme Court that political question really has to be judged on a case by case basis.

[00:31:07] Speaker 04:
Generalities

[00:31:08] Speaker 04:
don't advance the cause, and particularly it's the case that the mere presence of what is alleged to be a statutory claim doesn't take it out of the political question realm if the attributes under Baker v. Carr

[00:31:25] Speaker 04:
are present, any one of which will create a non-justiciable political question.

[00:31:30] Speaker 04:
And this court has said, both in Al-Shifa and in the Jaber case in which Judge Pillard was on the panel only last year, that an ATS claim doesn't immunize

[00:31:43] Speaker 04:
a case from political question analysis.

[00:31:47] Speaker 04:
Now in this case, I think the court needs to look at the pleaded, because that's what we have.

[00:31:53] Speaker 04:
And as my friend from the government said, it's not really appropriate for the court to kind of rewrite the pleading and say, well, hypothetically, if this were just pleaded as a wrongful death case, would that be justiciable?

[00:32:08] Speaker 04:
Because the plaintiffs quite deliberately didn't do that.

[00:32:10] Speaker 04:
This, by the way, is the second amended complaint.

[00:32:13] Speaker 04:
And then asked for permission to amend below.

[00:32:17] Speaker 04:
So this is their considered effort.

[00:32:19] Speaker 04:
And their considered effort is to make a pleading that is entirely wrapped up in what they call the settlement enterprise.

[00:32:28] Speaker 04:
That is a phrase that is repeated again and again.

[00:32:31] Speaker 04:
And the settlement enterprise is a policy of a close ally, Israel.

[00:32:36] Speaker 04:
And often, as they themselves, again, plead,

[00:32:39] Speaker 04:
intertwined with the activities of the IDF, the Israeli military, which gets billions of dollars a year in aid from this country for its activities.

[00:32:51] Speaker 04:
And at one point in the complaint, the plaintiffs even slip away from the settlement enterprise and actually go so far

[00:32:58] Speaker 04:
on page JA 91 in the Joint Appendix, where they're talking about settlement and expansion activities, they say in footnote 127, commitment to the Zionist enterprise.

[00:33:11] Speaker 04:
So I think the court should be clear, and the plaintiffs are clear, this is an attack on the state of Israel and a major policy.

[00:33:21] Speaker 04:
That policy can be judged to be right or wrong.

[00:33:25] Speaker 04:
The plaintiffs have a grievance that many feel to be a legitimate one, but it is a political grievance.

[00:33:32] Speaker 03:
It hinges... Counsel, I mean, I think you're missing my point, or maybe it's not to your advantage to get it.

[00:33:39] Speaker 03:
I'm old school, you know, so I hear you like, so what?

[00:33:44] Speaker 03:
My point is this.

[00:33:46] Speaker 03:
They're coming into court as plaintiffs.

[00:33:49] Speaker 03:
They've got to rest on something.

[00:33:51] Speaker 03:
They have to have a cause of action.

[00:33:53] Speaker 03:
They've got to have jurisdiction and a cause of action.

[00:33:56] Speaker 03:
They chose their causes of action.

[00:33:58] Speaker 03:
Torture Victim Protection Act, political question doctrine.

[00:34:02] Speaker 03:
All of the stuff you're talking about, as I hear you say it, is like, so what?

[00:34:06] Speaker 03:
Those are their policy concerns about what's going on in the world.

[00:34:10] Speaker 03:
And they're unhappy about some things, maybe justly, maybe not so.

[00:34:15] Speaker 03:
I'm very limited role here as a judge

[00:34:19] Speaker 03:
Where's your cause of action?

[00:34:20] Speaker 03:
ATS?

[00:34:21] Speaker 03:
How do you make it out?

[00:34:23] Speaker 03:
Don't tell me why you're unhappy with the world.

[00:34:25] Speaker 03:
Tell me how you make out a cause of action under ATS.

[00:34:29] Speaker 03:
That's what we do.

[00:34:30] Speaker 03:
And all of what you've said is like, so what?

[00:34:33] Speaker 03:
They've still got to make out a cause of action under ATS, and ATS is really narrow.

[00:34:40] Speaker 03:
And they address all what you're talking about.

[00:34:44] Speaker 03:
A judge would just say, it doesn't work.

[00:34:46] Speaker 03:
Go away.

[00:34:47] Speaker 03:
I'm dismissing on that.

[00:34:48] Speaker 03:
You have anything else, and then we go through it.

[00:34:51] Speaker 03:
That's what we do.

[00:34:52] Speaker 04:
Judge, I know that's your view.

[00:34:55] Speaker 04:
No, it's the Supreme Court's view.

[00:34:57] Speaker 04:
Well, that's fairly important.

[00:35:00] Speaker 04:
No, but I think in all fairness, the Supreme Court has taken a very different view on two things which are related but separate.

[00:35:09] Speaker 04:
They clearly have narrowed the APS to the vanishing point.

[00:35:13] Speaker 04:
We can agree on that, and we can probably therefore all agree that if this complaint were justiciable, the odds are high that it would be dismissed.

[00:35:22] Speaker 04:
But the Supreme Court has also told us in Baker v. Carr and its progeny when they've addressed political question issues, and when this court has addressed political question issues, that you don't even get to whether it states the cause of action.

[00:35:35] Speaker 04:
if it's non-justiciable.

[00:35:37] Speaker 04:
And here, as Judge Pillard I think intimated in some of her questions, it's non-justiciable because, as Judge Chutkin said below, this complaint is inextricably linked to basic policy decisions that the United States

[00:35:54] Speaker 04:
government has said, and I've heard it again today from my friend, are policy decisions.

[00:36:01] Speaker 04:
The settlements are a very delicate diplomatic issue.

[00:36:04] Speaker 04:
The United States has expressed views on them in different times.

[00:36:09] Speaker 03:
Justiciability, I mean, I hear what you're saying.

[00:36:11] Speaker 03:
Justiciability doesn't become an issue if the purported cause of action isn't anything that we can hear.

[00:36:20] Speaker 03:
If it doesn't raise anything, the fact that a party comes into court

[00:36:25] Speaker 03:
with world grievances doesn't go anywhere unless they can put it somewhere.

[00:36:32] Speaker 03:
And so the justiciability notion that you're talking about, I think when you read the cases carefully, it's only when you have a conflict with the cause of action and Congress has attempted to get into the business of the other branch.

[00:36:52] Speaker 03:
And we're talking about that kind of a situation.

[00:36:55] Speaker 03:
But if a party just comes in with complaints, and they're resting on a statute, and we look at the statute, and we look at the complaint, and we say, there's no cause of action here.

[00:37:06] Speaker 03:
Justiciability is irrelevant.

[00:37:08] Speaker 04:
Let me give a very poignant example involving someone who went to law school a few years ahead of me.

[00:37:15] Speaker 04:
Jennifer Harbury stood in front of this court arguing in person for the murder of her husband.

[00:37:21] Speaker 04:
That was clearly would have been an actionable claim, but this court held it was non-justiciable.

[00:37:27] Speaker 04:
Why?

[00:37:28] Speaker 04:
Because of the political overlay of the fact that the CIA was alleged to have been involved in the torture and murder of her husband.

[00:37:36] Speaker 04:
That was terrible.

[00:37:38] Speaker 04:
In the Schneider case, the Chilean dictatorship murdered somebody.

[00:37:44] Speaker 04:
You nonetheless held it to be non-justiciable.

[00:37:47] Speaker 03:
Yeah, but remember what you started out by saying.

[00:37:49] Speaker 03:
It was an actionable claim.

[00:37:51] Speaker 03:
That's right.

[00:37:51] Speaker 03:
I get that.

[00:37:52] Speaker 04:
Wrongful death is actionable.

[00:37:53] Speaker 03:
That's right.

[00:37:54] Speaker 03:
An actionable claim.

[00:37:55] Speaker 03:
And nonetheless.

[00:37:57] Speaker 03:
That's what we're looking to see in the first instance to decide whether we're going to worry about

[00:38:02] Speaker 03:
But does it involve a political question?

[00:38:05] Speaker 04:
My point was that the wrongful death of Ms.

[00:38:10] Speaker 04:
Harbury's husband would certainly, in other contexts, been an actionable claim.

[00:38:16] Speaker 04:
But you decided that you weren't going to even decide whether it was an actionable claim.

[00:38:21] Speaker 04:
because it was non-justiciable.

[00:38:23] Speaker 04:
And my point, therefore, is it's not enough to have a cause of action, whether denominated under the ATS, or denominated under the common law, or denominated under some other body of law, if it is non-justiciable.

[00:38:38] Speaker 04:
And that is really important.

[00:38:40] Speaker 04:
When Congress wants to create causes of action in this sort of area, it passes statutes like the Anti-Terrorism Act.

[00:38:48] Speaker 04:
with a U.S.

[00:38:50] Speaker 03:
citizen.

[00:38:50] Speaker 03:
Did you see what we said in Harani?

[00:38:53] Speaker 03:
Pardon?

[00:38:53] Speaker 03:
Did you see what we said in Harani in response to what you're saying?

[00:38:57] Speaker 03:
It's like, yeah, we get involved in stuff that

[00:39:00] Speaker 03:
involves the kinds of questions that you now want to put all in the political.

[00:39:03] Speaker 03:
And we said, no.

[00:39:05] Speaker 03:
We're not going to do it.

[00:39:07] Speaker 04:
We're not going to do it that way.

[00:39:08] Speaker 04:
And if Congress directs you to do it in something like the ATA or in the very limited circumstances of the ATS and the claim does not have this additional political overlay, of course, you do your job.

[00:39:23] Speaker 04:
But you don't do your job over time, and I apologize.

[00:39:27] Speaker 04:
your job or rather you do do your job, but sometimes your job is to say, no, we can't decide this because we're in an area now that is committed to executive discretion.

[00:39:39] Speaker 04:
We're in an area where there is no judicially discoverable standard.

[00:39:44] Speaker 04:
We're in an area, particularly here, factor three under Baker v. Carr, where there is an initial policy determination to be made.

[00:39:53] Speaker 04:
in order to get open the door to all the rest of it.

[00:39:56] Speaker 04:
And that initial policy determination has to do with the legality of the settlements.

[00:40:02] Speaker 02:
But the plaintiffs have disclaimed that.

[00:40:04] Speaker 02:
They say many contradictory things.

[00:40:08] Speaker 02:
I understand that.

[00:40:09] Speaker 02:
But the standard of review for us is take the pleadings in the light most favorable to the plaintiff.

[00:40:18] Speaker 02:
And so if they're saying contradictory characterizations,

[00:40:22] Speaker 02:
One of their characterizations of at least some of their claims is it doesn't matter whether the settlements are completely lawful.

[00:40:30] Speaker 02:
If they're lawful, they're saying there's still allegations of wrongful conduct.

[00:40:35] Speaker 02:
What about my hypothetical with American professor working in the West Bank tortured?

[00:40:42] Speaker 02:
Cause of action or political question?

[00:40:45] Speaker 04:
have to look at all the facts and circumstances as pleaded, Your Honor.

[00:40:50] Speaker 04:
And again, I said I don't really think it's appropriate for the court to rewrite the complaint to maybe get it over the line.

[00:40:56] Speaker 02:
Of course it's not.

[00:40:57] Speaker 02:
I agree with you.

[00:40:58] Speaker 02:
I agree with you.

[00:40:59] Speaker 02:
But I'm just trying to probe the scope of your position.

[00:41:02] Speaker 02:
OK.

[00:41:03] Speaker 04:
Take an example.

[00:41:04] Speaker 04:
Here's a settlement.

[00:41:05] Speaker 04:
And the settler sees somebody there who thinks the settler is menacing that settlement or the settler's family.

[00:41:13] Speaker 04:
The settler may be right or wrong.

[00:41:15] Speaker 04:
The settler may be much too quick on the trigger because of ideological passions.

[00:41:20] Speaker 04:
He pulls the gun.

[00:41:22] Speaker 04:
He says it's self-defense.

[00:41:25] Speaker 04:
The family of the person who's killed says this is a violent settler out to destroy Palestinians.

[00:41:33] Speaker 04:
The court can't determine that without that initial factor three determination, making a policy decision.

[00:41:41] Speaker 04:
Is this settler here in the first place?

[00:41:43] Speaker 04:
Is he defending his property, or is he

[00:41:46] Speaker 04:
wrongfully stealing someone else's property and then taking violent action against the victim of his theft.

[00:41:55] Speaker 04:
That gets you to the political question.

[00:41:57] Speaker 04:
I'm way over time and I will subside unless there are further questions from the court.

[00:42:02] Speaker 06:
Does Mr. McMahon have... Okay.

[00:42:09] Speaker 05:
I actually reserved three, Your Honor, but... Or you used them.

[00:42:13] Speaker 05:
I'm sorry?

[00:42:14] Speaker 05:
You used them.

[00:42:16] Speaker 05:
You used the three minutes.

[00:42:17] Speaker 05:
Because I was addressing the judge's question.

[00:42:20] Speaker 05:
One of the things I didn't get to say to you folks is that there's a terrible precedent that this court has set.

[00:42:29] Speaker 05:
This court has held that a statement of interest filed by the Justice Department under the Westfall Act

[00:42:36] Speaker 05:
is the equivalent of a declaration of interest filed by the State Department.

[00:42:41] Speaker 05:
The State Department has the requisite expertise, the Justice Department doesn't.

[00:42:45] Speaker 05:
The mission of the Justice Department is to enforce criminal laws, not to issue a date that the court made was inciting the Simon case

[00:42:54] Speaker 05:
Court concluded, gee, in Simon, there was no declaration of interest filed.

[00:42:58] Speaker 05:
She's distinguishing my cases.

[00:43:01] Speaker 05:
Actually, there were 74 pages filed by the State Department in the Simon case discussing the foreign policy concerns.

[00:43:11] Speaker 05:
The other thing about settlements and illegality, she relies on Judge Bates' opinion in Doe versus Israel.

[00:43:18] Speaker 05:
He concluded the only reason he has to decide whether Israeli settlements are legal is because the plaintiffs have brought a RICO claim.

[00:43:27] Speaker 05:
There is no RICO claim that we have brought.

[00:43:31] Speaker 05:
I would also like to conclude that in terms of self-defense, Palestinians

[00:43:40] Speaker 05:
All right, wake up one morning.

[00:43:42] Speaker 05:
The olive groves are in settlements.

[00:43:45] Speaker 05:
They can't go in because it's a military enclave.

[00:43:48] Speaker 05:
At 2 a.m., they try to sneak in and get some olives.

[00:43:52] Speaker 05:
They're not attacking a settlement, as the testimony will reveal.

[00:43:56] Speaker 05:
They're trying to live off the products of an olive grove.

[00:44:00] Speaker 05:
That's all.

[00:44:01] Speaker 05:
So, I know this is a very difficult case, but dangerous precedent would be set if you allow that case to be enshrined as relevant case law in the Plunka Question Doctrine.

[00:44:17] Speaker 05:
Now, what do I see?

[00:44:18] Speaker 05:
Affirmance that the Act of State Doctrine doesn't apply.

[00:44:21] Speaker 05:
Number two,

[00:44:23] Speaker 05:
affirmance with respect to Abrams.

[00:44:25] Speaker 05:
We can sue him for 22 years.

[00:44:28] Speaker 05:
The eight years when he was a government employee, we can't sue him for.

[00:44:32] Speaker 05:
And I'm not sure whether the Justice Department even, you know, briefed that issue in terms of a reversal.

[00:44:38] Speaker 05:
But there are some things that this Court did, and I'd like you to affirm that.

[00:44:42] Speaker 05:
Obviously, reverse the ruling on the political question.

[00:44:47] Speaker 06:
Thank you.