[00:00:00] Speaker 00: Case number 19-7121, Darius Radmanesh, appellant versus Islamic Republic of Iran and Iranian Islamic Revolutionary Guard Corps. [00:00:10] Speaker 00: Mr. Yanof, for the appellant, Ms. [00:00:12] Speaker 00: Al-Qadi, appointed amicus curiae. [00:00:20] Speaker 01: May it please the court. [00:00:22] Speaker 01: My name is Mike Yanof and I represent the appellant, Darius Radmanesh. [00:00:27] Speaker 01: This case is about protecting an American from Iran's brutal treatment of anyone it disagrees with or wants to intimidate. [00:00:36] Speaker 01: The very purpose of Section 1605A, the terrorism exception to immunity in the FSIA, is to provide Americans abroad protections and make sure they are treated outside of America under well-established bounds of international law. [00:00:54] Speaker 01: creates a cause of action for that very purpose. [00:00:58] Speaker 01: The court takes the alleged facts as true, given Iran's failure to appear and the default judgment proceeding. [00:01:06] Speaker 01: These facts include Rod Monash and his family from the outset of Khomeini's takeover in 1979, being held as prisoners in their own home and being told that they were not going- Has he been held hostage within the terms of the statute? [00:01:23] Speaker 01: He has been held hostage, Your Honor. [00:01:25] Speaker 01: Admittedly, that's a closer call than torture, but he has been held hostage. [00:01:31] Speaker 01: His family was held hostage during that time period. [00:01:34] Speaker 02: Never mind his family. [00:01:36] Speaker 02: Now, he's the plaintiff here, right? [00:01:40] Speaker 01: Yes, Your Honor. [00:01:41] Speaker 02: Okay. [00:01:42] Speaker 02: Now, when is he held hostage? [00:01:45] Speaker 01: He was, well, if we're moving past the family when he was conscripted into the military and we're not making the argument. [00:01:54] Speaker 02: Being conscripted into the military is not being held hostage, is it? [00:01:58] Speaker 01: It's not, we're not making that argument. [00:02:00] Speaker 02: Okay, let's leave that subject behind us then. [00:02:02] Speaker 02: When has he been held hostage? [00:02:05] Speaker 01: Yeah, you're held hostage, your honor, when you are, one, not allowed to leave, you're detained. [00:02:12] Speaker 02: What does the statute say being held hostage means? [00:02:15] Speaker 01: It's detained with a threat to kill or continue to detain and compelling that person to do or refrain from doing an explicit or implicit condition or release of the hostage. [00:02:31] Speaker 02: What was the time here when he was held hostage in that sense is to say he's somebody's under their [00:02:39] Speaker 02: It was under custody and control and they're doing it to extract the performance of some other act by him or some other person. [00:02:47] Speaker 01: Yes. [00:02:47] Speaker 01: So the killer be killed order is by itself, both torture and hostage taking. [00:02:55] Speaker 01: It is requiring him to commit an act in order to not just escape, but in order to live. [00:03:05] Speaker 02: Forget about the torture claim on that killer be killed. [00:03:10] Speaker 02: They did not say if you kill him, we're going to turn you loose, didn't it? [00:03:15] Speaker 02: They didn't make the killing of the Iraqi a condition of his freedom, assuming they're holding him at that point. [00:03:26] Speaker 02: They didn't make the killing of the Iraqi condition of his freedom, didn't they? [00:03:30] Speaker 01: That's true. [00:03:32] Speaker 02: So then is it hostage-taking within the meaning of the statute? [00:03:36] Speaker 01: It is because what they did was they came up even short of releasing. [00:03:42] Speaker 01: Kill or be killed is, we're not even telling you we're going to release you as a result of this, but you will die because we're holding you at gunpoint if you don't commit what is effectively a war crime. [00:03:55] Speaker 01: Killing somebody in their sleep who's not engaged is a war crime under the Geneva Convention. [00:04:00] Speaker 01: and so it's even short of we will release you. [00:04:03] Speaker 01: It's you don't survive this moment unless you commit this war crime. [00:04:09] Speaker 03: It's actually not a war crime to kill members of hostile forces in an armed conflict when they're not actively fighting. [00:04:22] Speaker 03: You have to accept a surrender, but you can kill [00:04:26] Speaker 03: you can kill members of hostile forces when they're sleeping. [00:04:31] Speaker 03: And it's a horrible thing, but that's a lawful act under the laws of war. [00:04:39] Speaker 01: Yeah, and that's the only reason I say arguably, it is an outrageous act. [00:04:48] Speaker 03: It's not arguable under the laws of war. [00:04:52] Speaker 01: Fair enough, Judge Katz, it's fair enough. [00:04:55] Speaker 01: Fair enough. [00:04:57] Speaker 01: But to place Rod Monash in that position at gunpoint is far beyond, it's most akin, if I'm to compare it to something, to Russian roulette. [00:05:12] Speaker 02: That may be, but nonetheless, it's not something where he's being held in custody amounting to the hostage taking on a condition that he perform an act. [00:05:23] Speaker 02: And you can't explain what is going to be killed. [00:05:25] Speaker 02: That takes it out of the range of hostage taking, doesn't it? [00:05:28] Speaker 02: Cause hostage taking involves holding somebody conditional to the performance of an act by themselves or a third person or non-performing. [00:05:38] Speaker 01: Your point is a fair point. [00:05:40] Speaker 02: He shot and killed him. [00:05:41] Speaker 02: He didn't get it. [00:05:42] Speaker 02: If he was in custody then, which of course is, that's not actually necessarily the case, but if he were, he wasn't released when he killed him, right? [00:05:53] Speaker 01: It true. [00:05:54] Speaker 01: He was not released as a result. [00:05:55] Speaker 02: Doesn't that prove that this is not. [00:05:58] Speaker 01: Well, admittedly, the hostage taking is a much closer call than torture is because there's certainly not an explicit condition of release tied to it. [00:06:15] Speaker 01: What we're arguing is that it's an implicit, if you don't do this, you're not going to be released. [00:06:22] Speaker 01: And then backing up to his family, I do believe that's relevant because [00:06:28] Speaker 01: You can be prisoners in your own home, they were, and you can be hostages in your own home, even though it is from his dad, not him directly. [00:06:39] Speaker 01: So I think all of those in totality are are hostage taking but admittedly that's a much closer call than torture. [00:06:47] Speaker 01: Torture is not a close call because you need an act by a government official that's undisputed here. [00:06:56] Speaker 01: Certainly after he was conscripted, that's undisputed, who suffers severe mental or physical pain or suffering. [00:07:04] Speaker 01: And third, it's intentionally inflicted, meaning it's not just a broad order in the context of military. [00:07:10] Speaker 01: It's not just a broad order. [00:07:11] Speaker 01: This court said in price that that is a non-exhaustive list as to the intent element. [00:07:19] Speaker 01: The first element's undisputed. [00:07:21] Speaker 01: Amicus and the district court kind of gloss over the third element, the intent element, particularly in the kill or be killed order. [00:07:30] Speaker 01: The kill or be killed order alone establishes intent. [00:07:35] Speaker 01: This was not a broad order to his entire troop. [00:07:38] Speaker 01: or to the Iranian military in general to go do these things. [00:07:43] Speaker 01: He was pulled aside, told he was going to be an American martyr in this mission, and then he was told, at gunpoint, go kill this sleeping Iraqi soldier. [00:07:56] Speaker 01: That is intent. [00:07:57] Speaker 01: He was singled out, and he was told to do this on his own. [00:08:00] Speaker 02: Maybe intent, but is it torture? [00:08:01] Speaker 01: It is torture. [00:08:04] Speaker 02: It's a terrible thing, but is it torture within the meaning of the statute? [00:08:08] Speaker 01: It is torture, your honor. [00:08:10] Speaker 01: It's torture because it fits within what this court says is universal condemnation. [00:08:19] Speaker 01: War crime aside, it is universally condemned to force a soldier at gunpoint to go kill somebody else. [00:08:28] Speaker 03: Suppose you have a group of soldiers in the field [00:08:36] Speaker 03: and they come across a uniformed member of the enemy who's sleeping and the commander says to one of the people in the group, go kill that enemy soldier. [00:08:56] Speaker 03: Is that anything other than what just unfortunately happens in war as a matter of course? [00:09:06] Speaker 01: Not necessarily. [00:09:08] Speaker 01: It wouldn't necessarily satisfy the intent element or the severity element because it's simply an order. [00:09:20] Speaker 01: There's no punishment associated with it. [00:09:23] Speaker 01: You're not told at gunpoint. [00:09:24] Speaker 01: It's not a kill or be killed. [00:09:26] Speaker 03: In the middle of combat, if a soldier disobeys a lawful order, [00:09:34] Speaker 03: lots of very harsh things can happen to them. [00:09:38] Speaker 03: So they're making the or be killed part of this explicit doesn't seem like a big step from normal wartime horrors. [00:09:52] Speaker 01: Well, it certainly does if you refuse to obey the order, because if you believe the order to be true, [00:09:59] Speaker 01: that then you will die as a result. [00:10:02] Speaker 01: That there are consequences is a fact of fighting in the military and a fact of being at war, no doubt. [00:10:09] Speaker 01: But to hold a gun to somebody and say, go kill him is implicitly, if not expressly saying kill or you will be killed. [00:10:19] Speaker 01: It is worse than a form of Russian roulette, which is torture. [00:10:24] Speaker 02: Well, statutory term of mental pain [00:10:30] Speaker 02: Suffering refers to prolonged—excuse me, I'm having trouble focusing—harm caused by or resulting from. [00:10:39] Speaker 02: What's the prolonged harm that makes this sent fit within the torture definition in the statute? [00:10:48] Speaker 01: Well, it's prolonged harm resulting not prolonged torture. [00:10:53] Speaker 01: So the totality of the torture or the length of time that he is tortured is not what the prolonged focuses on. [00:11:02] Speaker 01: It's the prolonged harm resulting. [00:11:04] Speaker 01: That's a damages element. [00:11:05] Speaker 02: If we use it as broadly as you seem to be, then torture becomes anything that has happened to him that might be bothering him for a long time. [00:11:17] Speaker 02: Can that possibly be what that statute means? [00:11:20] Speaker 01: That's definitely not what it means. [00:11:22] Speaker 01: It says this court defined it in price as an act of universal condemnation. [00:11:29] Speaker 01: And a killer being killed is an act of universal condemnation. [00:11:31] Speaker 02: That's a different element. [00:11:33] Speaker 02: Here we're looking at subsection B. Or I'm asking about subsection B. What's the prolonged harm here that fits it within the mental element? [00:11:45] Speaker 01: Well, the harm is to put anyone in the position of murder or be murdered, kill or be killed is a psychological game that is far beyond any bounds of appropriateness. [00:12:03] Speaker 01: It wouldn't be appropriate if the American military did it, Iranian military, any military in this world to hold one of your soldiers at gunpoint and say, kill or be killed. [00:12:14] Speaker 06: So you have thrown out the phrase universally condemned. [00:12:19] Speaker 06: And is that with reference to the kill or be killed order? [00:12:26] Speaker 01: Yes. [00:12:27] Speaker 06: And what do you cite as authority that this is universally condemned? [00:12:37] Speaker 01: I don't have something this outrageous. [00:12:41] Speaker 01: What I have are the the Scipio cases and the Mahinovic cases, which we've cited one out of the district court in DC and the other out of US district court in northern district of Georgia, which cite requiring someone to play the Russian roulette as included within the acts that. [00:13:01] Speaker 06: Okay, so you have two district court cases and that's it? [00:13:05] Speaker 01: Yes, I don't have a case talking about kill or be killed orders. [00:13:10] Speaker 06: Well, I thought you might have a citation to an international convention, et cetera, in response to the points that Judge Katz's questions were making. [00:13:23] Speaker 06: Don't you have to overcome that in order for your client to fall within the statutory definitions? [00:13:31] Speaker 01: I don't think so because Russian roulette is not near as severe as kill or be killed. [00:13:39] Speaker 01: Russian roulette only impacts the individual. [00:13:40] Speaker 06: According to what? [00:13:42] Speaker 06: Two district court judges. [00:13:43] Speaker 06: I'm just trying to understand this. [00:13:44] Speaker 06: I mean, they may be correct, but I'm just saying that's all the authority you have. [00:13:49] Speaker 01: It is. [00:13:50] Speaker 06: And the international conventions and the law of war have not gone that far, at least explicitly. [00:14:00] Speaker 01: Yeah, I don't have cases saying that a kill or be killed order is not that either. [00:14:06] Speaker 01: I don't have either one. [00:14:08] Speaker 06: Well, that's what I'm trying to understand. [00:14:09] Speaker 06: What do you need to show? [00:14:12] Speaker 06: And we have a series of cases, including an understanding of why these provisions are construed narrowly. [00:14:27] Speaker 06: It seems to me that means [00:14:30] Speaker 06: that you have to come forth with something. [00:14:34] Speaker 06: And with all due respect, judges may disagree on whether there is a statutory violation, as our cases indicate, where we reverse the district court judge. [00:14:52] Speaker 01: That's true, Your Honor, and that's why it's a de novo review. [00:14:56] Speaker 01: It's not abuse of discretion. [00:14:57] Speaker 01: It's a de novo review on the law and on whether it's severe enough, and that's what this court openly has to determine. [00:15:04] Speaker 02: Well, it's not severe enough, it's they're harming up in this case. [00:15:09] Speaker 02: Do they come within the [00:15:10] Speaker 02: statutory terms on that. [00:15:13] Speaker 02: If you do not succeed on the kill or be killed incident, is there anything else here that comes within the statute's definitions of torture? [00:15:24] Speaker 01: Well, I think the totality of the family treatment and everything else, if the single act of kill or be killed. [00:15:32] Speaker 02: The family treatment. [00:15:34] Speaker 02: You have to have something about how he is tortured to come within the statute. [00:15:40] Speaker 01: Well, that's true. [00:15:41] Speaker 01: That's true. [00:15:42] Speaker 01: But that's true. [00:15:46] Speaker 01: But but he's a he's in the household. [00:15:48] Speaker 01: So it's true, Your Honor. [00:15:51] Speaker 02: What else do you have that would indicate an incident or incidents in which this plaintiff is tortured? [00:15:58] Speaker 01: The killer be killed or order. [00:16:00] Speaker 02: Aside from that killer be killed, if you don't if you don't succeed on that, is there another incident that comes to the statutory definition? [00:16:09] Speaker 01: I don't think any of the other incidents by themselves would constitute torture. [00:16:13] Speaker 01: I do not believe that. [00:16:14] Speaker 03: Are you abandoning the claim based on the beating? [00:16:18] Speaker 01: I think the beating gives good context for how he and his family were treated since 1979. [00:16:28] Speaker 01: It's relevant for that. [00:16:30] Speaker 01: It's certainly relevant for damages. [00:16:32] Speaker 03: But it's not enough by itself. [00:16:34] Speaker 01: I don't think it's enough by itself. [00:16:36] Speaker 01: And it's debatable whether some of that's by Iranian officials specifically, admittedly. [00:16:43] Speaker 06: OK, yeah. [00:16:46] Speaker 06: All right. [00:16:52] Speaker 06: Why don't we hear from appointed amicus? [00:16:56] Speaker 04: Thank you, Your Honor. [00:16:57] Speaker 04: Erica Hashimoto from the Georgetown Law Center. [00:17:01] Speaker 04: And with the court's permission, [00:17:03] Speaker 04: A third year law student, Dialla Al-Khadi, will be representing Amicus. [00:17:09] Speaker 06: Thank you very much. [00:17:10] Speaker 06: We appreciate your assistance to the court. [00:17:17] Speaker 06: Yes, Amicus? [00:17:20] Speaker 05: Your honor, and may it please the court. [00:17:22] Speaker 05: Mr. Rodman-Walsh has looked through unspeakable circumstances during his time in Iran. [00:17:27] Speaker 05: Circumstances that no- Sorry, can you speak up? [00:17:30] Speaker 02: I'm not hearing you very well. [00:17:34] Speaker 05: Mr. Rodmanash has lived through unspeakable circumstances during his time in Iran, circumstances that no individual, let alone a teenager, should endure. [00:17:44] Speaker 05: But even taken as true, those circumstances do not meet the limited exceptions that Congress has set out in bringing suits against foreign states. [00:17:53] Speaker 05: As the Supreme Court reiterated just two days ago, the terms torture and hostage-taking have been defined explicitly and with precision. [00:18:02] Speaker 05: And Mr. Radmanash has not met his burden that Iran's conduct fits either definition. [00:18:09] Speaker 05: Mr. Radmanash was required to establish three elements with respect to torture, custody, severity, and purpose. [00:18:18] Speaker 05: His allegations that he was tortured before he was conscripted failed because he cites no authority to suggest that the monitoring or prohibition on international travel [00:18:30] Speaker 05: meet the custody prong within the meaning of torture. [00:18:35] Speaker 05: Off to severity, this court has repeatedly made clear that suffering alone is insufficient. [00:18:41] Speaker 05: The acts must be extreme, deliberate, unusually cruel, and not the unforeseen or unavoidable incident of some legitimate end. [00:18:49] Speaker 03: So can I ask you about the beating? [00:18:55] Speaker 03: Is there any, can you imagine any circumstance in which the government sends out a group of thugs to beat someone up? [00:19:11] Speaker 03: They don't take him into traditional custody. [00:19:13] Speaker 03: They just go beat him up and they don't use any torture implements. [00:19:17] Speaker 03: They just punch him and kick him. [00:19:20] Speaker 03: Is there any beating on those set of facts [00:19:24] Speaker 03: that would constitute torture? [00:19:28] Speaker 03: Suppose they just beat him completely senseless. [00:19:30] Speaker 03: Wouldn't that be torture? [00:19:33] Speaker 05: No, Your Honor, because this court in price has held that not all police brutality and not every instance of excessive force will meet the definition of torture. [00:19:45] Speaker 05: But in addition, it has to be done for a purpose that's delineated in the statute. [00:19:50] Speaker 03: Well, let's just talk about severity for a minute. [00:19:55] Speaker 03: So we said in price that sustained and systematic beatings can count. [00:20:03] Speaker 03: And we also said that the key determinant is the degree of pain that's inflicted. [00:20:11] Speaker 03: So I would think if particularly the latter point would imply that you could have a one-time beating that is severe enough to [00:20:19] Speaker 03: amount to torture. [00:20:23] Speaker 05: Your honor, this court in Simpson one remanded to the district court where the plaintiff was beaten, interrogated, and threatened with death, finding that that was insufficient to meet the severity requirement of torture. [00:20:38] Speaker 05: So in the hypothetical that you suggest, that would still not meet the severity requirement. [00:20:44] Speaker 05: In fact, in most cases that the district court has looked at with respect to severity, it has found a pattern of abuse, including being kept in stress positions, hung from the ceiling, repeatedly denied medical treatment. [00:21:00] Speaker 05: And so even in that hypothetical, we don't believe that that would meet the severity requirement that the torture section requires. [00:21:13] Speaker 05: Mr. Rodmanish also fails to establish that Euron acted with one of the purposes that the torture definition contemplates. [00:21:21] Speaker 05: Similarly, Euron did not take Mr. Rodmanish hostage because he was not held captive for the purpose of enticing any third party action. [00:21:30] Speaker 05: As this court in Christ held, detention for the purpose of moral symbolism is not hostage taking. [00:21:39] Speaker 05: Mr. Rodmanish's experiences are awful and harrowing. [00:21:43] Speaker 05: But the reason that the Foreign Sovereign Immunity Act exists is to ensure that unless the act rise to the level of universal condemnation, they will not bring foreign governments within the jurisdiction of US courts. [00:22:04] Speaker 05: And if the court has no further questions, this court should affirm. [00:22:11] Speaker 06: Any further questions? [00:22:13] Speaker 02: further. [00:22:14] Speaker 06: All right, thank you, counsel. [00:22:16] Speaker 06: Amicus. [00:22:19] Speaker 06: All right. [00:22:19] Speaker 06: So, counsel for Pelham. [00:22:28] Speaker 01: Thank you, your honor. [00:22:30] Speaker 01: As to the severity element, it can be tempting to look at the cases just against Iran. [00:22:37] Speaker 01: They're well [00:22:38] Speaker 01: well noted and documented throughout numerous courts, the Asada case, Scipio, Frankel, Kilburn, Maradi, cases involving kidnapping, murder, genital electrocution, solitary confinement with no purpose at all, not tied to a rational imprisonment. [00:22:56] Speaker 01: It can be easy to look at the extremely high bar that Iran has set for severity and torture [00:23:04] Speaker 01: including of Americans and say, well, this one's not quite as bad as the others. [00:23:12] Speaker 01: And the problem is it rewards Iran for setting their own bar so high for torturing Americans who happen to be in their country or not even in their country when it's Hamas or others that kidnap them. [00:23:25] Speaker 01: And they've set the bar so high that to fall short of that is something less than torture. [00:23:32] Speaker 01: The kill or be killed order is as severe of psychological and mental torture as you can have. [00:23:43] Speaker 01: It is far beyond Russian roulette. [00:23:47] Speaker 01: It's not play a game and you may get killed. [00:23:50] Speaker 01: It is kill or be killed. [00:23:52] Speaker 01: It is forcing someone who is unwilling to do so to go murder somebody. [00:23:56] Speaker 01: If that order had been to the Iranian soldiers in general, it undoubtedly would not satisfy torture because it wouldn't satisfy the intent element. [00:24:06] Speaker 01: But the kill or be killed order at gunpoint by itself is not only severe, but it also satisfies the intent. [00:24:15] Speaker 01: What that is worth and whether that it prolongs harm in such a way that it is worth x dollar amount is a damages question, which remains to be determined by the district court. [00:24:28] Speaker 01: I'd ask that the court reverse and render default judgment. [00:24:32] Speaker 06: Thank you. [00:24:33] Speaker 06: We'll take the case under advisement.