[00:00:00] Speaker 04:
Case number 20-7017 et al, Lucy Kosoyan et al versus Republic of Turkey appellant.

[00:00:07] Speaker 04:
Mr. Shamil for the appellant, Ms.

[00:00:09] Speaker 04:
Birchman for the appellees.

[00:00:11] Speaker 03:
Mr. Shamil, please begin.

[00:00:13] Speaker 03:
Before you do, I apologize to everyone.

[00:00:17] Speaker 03:
I don't know what I did, but I'm back on, so please proceed.

[00:00:22] Speaker 01:
That's wonderful.

[00:00:23] Speaker 01:
I'm sure I would have not been able to figure it out either.

[00:00:26] Speaker 01:
May it please the court.

[00:00:27] Speaker 01:
Good morning.

[00:00:28] Speaker 01:
My name is Mark Schammel.

[00:00:30] Speaker 01:
I'm here on behalf of the Appellant Republic of Turkey.

[00:00:33] Speaker 02:
The district court erred in its two-pronged analysis, excuse me, in its pronged two analysis of Berkowitz when it denied Turkey's motion to dispense.

[00:00:42] Speaker 02:
The Berkowitz test is a clear analytical vehicle for dispassionate analysis of a foreign sovereign immunity claim.

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The court need not engage in any factual analysis of degree or nature of force, nor should the district court do any balancing of the alleged facts, as was done here.

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To do so is to get into the exact second guessing that Congress intentionally sought to avoid when it passed the statute and that the Supreme Court found in Goldberg.

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28 USC.

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Before President Erdogan's car had even arrived at the residence, before it even arrived at the residence, the security agents knew it was en route.

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One of the agents pulls out a machine gun and shoots every single protester because they fear they're terrorists or terrorist supporters, and they want to make the place secure for the president.

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Could there be a lawsuit for that?

[00:01:41] Speaker 02:
The answer, Your Honor, is it depends.

[00:01:44] Speaker 04:
OK, tell me why it depends.

[00:01:45] Speaker 04:
I'd really like to know whether you think there could be a lawsuit, whether there would be discretionary function immunity in that context or not.

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Tell me what it depends on.

[00:01:56] Speaker 04:
What more facts do you need?

[00:01:58] Speaker 02:
Well, I think the starting point for such an analysis, Your Honor, for any district court is to determine what is the conduct.

[00:02:05] Speaker 04:
I've just described to you what the conduct is.

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I'm going on my hypothetical, not this case.

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I'd just like an answer to that hypothetical.

[00:02:13] Speaker 02:
Correct.

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And in that hypothetical, if it's assassination, that may be a horse of a different color.

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How do I know if that's assassination?

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I've given you the description.

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I've given you exactly the facts we have.

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Assassination will be someone's label or not.

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What we do know is a machine gun was taken out and all the protesters were killed before the car arrived.

[00:02:35] Speaker 02:
Before the, I don't think that the CARS arrival is necessarily an important analysis for the court to undertake because the security function of the presidential security detail, it starts- Okay, but I'm just telling you my facts.

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So under my facts, the president's not even on site yet.

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So you say that doesn't matter, but go ahead.

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And under the court has to, under Berkovitz, start with the prong one analysis, which is- Okay, what is the prong one answer to that?

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I know how to do the analysis.

[00:03:05] Speaker 04:
I'm just trying to, I would like to get your answer on each prong of that analysis.

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On prong one, what is your answer?

[00:03:12] Speaker 02:
I believe on prong one in that situation, your honor, it sounds like it's potentially a use Coggins map, use Coggins, I apologize, I garbled that, but it's more likely discretionary function.

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It's a discretionary function.

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What is your position?

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I mean, all you're doing is saying someone might argue.

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You're saying someone might argue that it's a violation of international law or crimes against humanity, but you would still argue that it falls within the discretionary exception.

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Is that function exception?

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Is that what you just said?

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Prong one.

[00:03:43] Speaker 02:
Yes, Your Honor.

[00:03:44] Speaker 04:
I believe that- And what about prong two?

[00:03:47] Speaker 02:
Well, it's susceptible to policy analysis.

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Once we've crossed the Rubicon on prong one,

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Now we're into it.

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It has to do with national security.

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And this is a, this is a presidential security detail acting in their presidential security capacity.

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Then yes, it would be under prompt to it would be susceptible to policy analysis.

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And under the facts as your honor has laid out, I believe it's to me like you're arguing for just absolute immunity for foreign security details.

[00:04:18] Speaker 01:
No, your honor.

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No, unless they, if they, I guess, if they, if they announced that they're assassinating someone, they don't get it.

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Is that the only exception?

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No, no, your honor.

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Give me another example of when in your view, either prong one or prong two would not be satisfied if you have a presidential security detail.

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And I'm going to say the president is in the area, whether he's right there or on route.

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And I think if the president is on route or in the area, and they are, as they have been alleged in this case, acting in their role as presidential security, then the immunity is gonna be very, very hard to overcome.

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I would really like to know what your very, very hard exception, I'm really, what I'm lost from in the briefing in this case is what would have been, I mean, what actions could a foreign security detail take

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And I'm assuming the president is here in the area, so you wouldn't say if they did it two weeks before he arrived.

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He's here in the area.

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He's at the White House, but getting ready to come.

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Is there any action that they could take against American civilians that would not fall within discretionary function?

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I think that the courts have laid out the actions that would fall outside the realm of discretionary function, things such as assassination, things that are against international law, things that have to do with espionage.

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Some of those would fall outside if it was a private act.

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So just because one is a presidential security detail member, they are not given free rein to do anything anywhere in any context.

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But here, as the court- Why does the law make, yeah, no one's talking about private acts, but what's the difference between assassination and just murder of civilians?

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It's a public policy question, and it's also a issue of, assassination is against international law.

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Correct.

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And so murder in that context is really an extension of what plaintiffs have alleged here.

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Murder of innocent civilians, not contrary to international law?

[00:06:45] Speaker 02:
No.

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Well, it could be.

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But it really depends on the discretionary function of the actors.

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And so just because.

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So is murder by security details?

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of innocent civilians.

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The hypothetical is there's no provocation.

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And my view on that is the murder, which would be the death of those protesters that you're referring to as innocent civilians, is just the next level of tort that is alleged here.

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And that doesn't change the analysis.

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So suppose the facts were, as they are in this case,

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with one change.

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The protective detail members raped one of the protesters across the street, when they crossed the street.

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Is that also protected by immunity?

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I think the answer to that, Judge Wilkins, is no.

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And I think the reason of that is the initial threshold analysis is, what's the conduct?

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And here, the conduct is not, as the court found below, presidential security.

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There's no part of raping someone that is presidential security.

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And so as a threshold matter, it's not presidential security.

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So you don't have to get into the two-pronged analysis of Berkowitz.

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So mowing them down with machine gun.

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is protected by immunity, but, but raping them would not be.

[00:08:33] Speaker 02:
I think that's right.

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I think that mowing them down by machine gun could be part of presidential security.

[00:08:42] Speaker 03:
Let me ask a question.

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Let me ask a question that's closer to what I think would be the facts of this case.

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If we let it proceed and in discovery, it is

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alleged that President Erdogan and we've all watched the video that there's a conversation between him and some of his guards.

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If he said, I don't want to see these people when I come back out.

[00:09:13] Speaker 03:
Do we proceed with this case?

[00:09:16] Speaker 02:
No, Judge Anderson, we do not.

[00:09:19] Speaker 02:
Because once we've determined, and I would argue that the facts here are not very much in dispute because of those videos, once we have determined that this is presidential security and it's discretionary, we have, as the court below found, we have satisfied Berkowitz, problem one, for presidential security, for discretionary acts, and then the second part is, is it susceptible to policy analysis?

[00:09:45] Speaker 03:
All right, let me ask you this.

[00:09:46] Speaker 03:
Does it make a difference if it was not President Erdogan who gave the order to surge, but one of the top people in the presidential security team?

[00:10:02] Speaker 02:
Judge Henderson, I do not believe it does make a difference.

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And the reason is, internationally protected persons, there's a large sort of group of people that fall in that rubric.

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Obviously, the president of the sovereign nation is the top, is the tip of the spear, as it were.

[00:10:18] Speaker 02:
But there was an ambassador there.

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There were other members of the ambassadorial staff.

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There are other supervisors.

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It all still falls within that same rubric of presidential security susceptible to discretion.

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And each time a question like this comes up, I have to go back, I think, to the language of 1605A5A, which ends with, regardless of whether the discretion be abused.

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I have a backup question on this.

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This is my own ignorance of how this works.

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Is there a federal statute or regulation that defines what the scope of authority of foreign

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security details are when they're in the United States, as opposed to the U.S.

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Secret Service?

[00:11:08] Speaker 02:
Your Honor, I'm not aware of any manual or things that would prescribe the actions of the foreign security details.

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In fact, I would reference plaintiffs' expert analysis.

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What they have submitted and what Amiki have submitted to the court is they don't really even claim that

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prescribed set of rules and regulations as it relates to United States Secret Service.

[00:11:33] Speaker 04:
That's what I'm trying to figure out, right?

[00:11:34] Speaker 04:
There's certainly seems like there's rules governing the Secret Service here.

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And the question is, there must be something somewhere and maybe it's just kept confidential for reasons.

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The Secret Service is ultimately responsible for foreign dignitaries in this United States.

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And then the foreign dignitaries may bring their own details.

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And what I'm trying to figure out is what is the relationship?

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If I'm walking by and the Secret Service says she's no threat, she's just walking by pushing a baby carriage.

[00:12:13] Speaker 04:
The Foreign Service detail says we think that's a threat.

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The Foreign Service detail has the authority to attack the American civilians walking by, or do they have to?

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Because there's nothing, no active attack underway.

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Are they supposed to contact the Secret Service agent there and say, we think that person's a threat?

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Or can they do anything they want?

[00:12:38] Speaker 02:
There's nothing that I'm aware of, Your Honor, as it relates to sort of like a, it's almost like a pro hoc vichay of foreign service, presidential protection to the U.S.

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Secret Service.

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And the Department of State or the U.S.

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Secret Service that provides the security for our diplomats and our internationally protected persons, as well as assisting in the protection

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other foreign nations, they're internationally protected persons.

[00:13:09] Speaker 02:
There's nothing that says that you are essentially giving up your power, protecting your country's president or IPP person just because we're also here.

[00:13:22] Speaker 02:
There is a code section that's referenced throughout the case below, which I think is important, which is 18 USC 112.

[00:13:31] Speaker 02:
in 18 USC 112, that is the statute that deals with the protecting of foreign dignitaries.

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And that's the statute.

[00:13:39] Speaker 04:
By the Secret Service, by US law enforcement forces.

[00:13:44] Speaker 02:
Correct.

[00:13:44] Speaker 04:
That's what I'm trying to figure out.

[00:13:46] Speaker 04:
So could Congress pass a law that says if the vice president would feel more secure

[00:14:00] Speaker 04:
as long as there were no protesters within a quarter mile.

[00:14:05] Speaker 04:
Protesting upsets, even peaceful protesters upset the vice president of US.

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This is a hypothetical vice president to be clear.

[00:14:15] Speaker 04:
That hypothetical vice president says, I just feel unnerved and worried whenever I hear

[00:14:23] Speaker 04:
chance from protesters, push them all back a quarter mile.

[00:14:28] Speaker 04:
Could Congress, in authorizing the work of the Secret Service, constitutionally pass a statute like that?

[00:14:38] Speaker 02:
I think the answer to that is no.

[00:14:40] Speaker 02:
And there's a couple of reasons.

[00:14:41] Speaker 04:
I agree.

[00:14:42] Speaker 04:
I agree.

[00:14:42] Speaker 04:
I agree that that would violate the First Amendment.

[00:14:46] Speaker 04:
So can Congress set up a regime or the executive branch, can either of them constitutionally set up a regime in which foreign security details can suppress speech in a way that the Secret Service cannot?

[00:15:02] Speaker 04:
Is that constitutionally permissible for either branch to allow that scheme?

[00:15:07] Speaker 02:
I think, Your Honor, that already exists.

[00:15:10] Speaker 02:
Because when we're dealing in some of the cases that are relied on by plaintiffs, and we're dealing with it, there's a distinction between the FTCA and the FSIA as it relates to the difference between Americans and foreign sovereigns.

[00:15:24] Speaker 02:
And I see my time has exceeded, Your Honor.

[00:15:27] Speaker 03:
Go ahead.

[00:15:28] Speaker 02:
Thank you, Your Honor.

[00:15:30] Speaker 02:
I'm sorry, of course, I lost my train of thought.

[00:15:33] Speaker 04:
The question was, if Congress cannot authorize a secret service to enforce security in a manner that violates, we'll say the First Amendment here, there might be other violations too, but we'll just go with the First Amendment against peaceful protesters.

[00:15:53] Speaker 04:
And then my next, and you said, no, we all agree, no, we can't do that.

[00:15:56] Speaker 04:
The next question is, can either Congress

[00:16:01] Speaker 04:
through 112 or some other statute, or the executive branch through regulations or practices and policies authorized foreign security details to suppress speech in a way that they themselves cannot.

[00:16:15] Speaker 02:
And I appreciate your restating the question, Frank.

[00:16:19] Speaker 02:
And I think the answer is, if they had to, but I don't believe they had to.

[00:16:24] Speaker 04:
I don't know what you mean by they had to.

[00:16:26] Speaker 04:
My question is very straightforward.

[00:16:27] Speaker 04:
I think it's a yes or no constitutional question.

[00:16:29] Speaker 04:
So Congress cannot pass a law that provides for security in terms of violating the First Amendment.

[00:16:39] Speaker 04:
And the United States could not have dropped regulations that would violate the First Amendment.

[00:16:45] Speaker 04:
And so the question is, can

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either Congress or the executive branch allow foreign security details to take measures that would violate the First Amendment if done by the Secret Service?

[00:17:03] Speaker 02:
And the answer, Your Honor, is that Congress has already done so.

[00:17:07] Speaker 04:
Please point out the statute where Congress says that foreign security details can violate the First Amendment.

[00:17:13] Speaker 02:
If you give me a moment, I can, Your Honor, because what the courts have said and what the Congress has said is that because they are foreign sovereigns, they are not bound by the same restrictions to follow the United States Constitution, and in this case, DC law, as Americans are.

[00:17:34] Speaker 02:
And so Congress has already, with the Foreign Sovereign Immunity Act and with comedy and all that comes before it,

[00:17:41] Speaker 02:
They have already given foreign sovereigns, and in this case, presidential security details, the opportunity and the ability to do what they need to do, even if it violates American law.

[00:17:54] Speaker 04:
So the Foreign Sovereign Immunities Act, in your view, is that Congress can outsource constitutional violations to foreign security details?

[00:18:05] Speaker 04:
That's what it sounds like to me.

[00:18:07] Speaker 04:
I should have thought the FSIA would have to be interpreted in a way that would

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not violate the Constitution.

[00:18:13] Speaker 04:
I think the FSIA is subject to the Constitution, isn't it?

[00:18:17] Speaker 04:
It is.

[00:18:17] Speaker 04:
Congress in enacting the FSIA is still subject to the First Amendment?

[00:18:21] Speaker 02:
Congress is, Your Honor.

[00:18:23] Speaker 04:
OK.

[00:18:23] Speaker 04:
All right.

[00:18:24] Speaker 04:
And the executive branch, to the extent they're implementing policies, is subject to the First Amendment?

[00:18:30] Speaker 02:
And the executive branch is, Your Honor.

[00:18:32] Speaker 04:
But then your answer is that Congress and the executive, because a president, signed the FSIA into law authorized

[00:18:41] Speaker 04:
other foreign governmental actors to violate.

[00:18:45] Speaker 04:
It just had to outsource it to foreign details, the constitutional violations.

[00:18:50] Speaker 02:
They're not authorizing it, Your Honor, but they are permitting it under foreign sovereign immunity.

[00:18:56] Speaker 04:
All right.

[00:18:56] Speaker 00:
Can I ask a question about Section 112?

[00:19:01] Speaker 00:
The district court said that it would assume without deciding that the protesters were a violation

[00:19:09] Speaker 00:
of Section 112 because Section 112 says that two or more people cannot congregate within 100 feet of an ambassador's residence or a consular property with the intent to harass a foreign official or official guest.

[00:19:39] Speaker 00:
So the district court said that it wouldn't matter that didn't matter that even if the protesters were in violation of that statute, your brief, you argue that it does matter, or at least you saying that.

[00:19:57] Speaker 00:
that the protective detail asked them to be pushed back 100 feet.

[00:20:02] Speaker 00:
They didn't.

[00:20:04] Speaker 00:
And that kind of factored into the actions that the protective detail took.

[00:20:11] Speaker 00:
So explain to me kind of what your legal position is on Section 112 and how it's supposed to help us decide this case one way or the other.

[00:20:24] Speaker 02:
Judge Wilkins 112.

[00:20:26] Speaker 02:
I think is it is there as a guide in some ways.

[00:20:32] Speaker 02:
Metropolitan Police Department and the Uniform Secret Service from the Foreign Mission branch that were in attendance at Sheridan Circle that day.

[00:20:40] Speaker 02:
They had a legal duty to enforce 112.

[00:20:44] Speaker 02:
They should have pushed back anyone that was with 100 ft of the rest of the Turkish property.

[00:20:53] Speaker 02:
or the Turkish internationally protected peoples.

[00:20:56] Speaker 02:
And so they didn't do that.

[00:20:58] Speaker 02:
And in the presidential security function, which is what the district court here found below, and plaintiffs have made clear in over 150 references in their complaints and filings, is what was happening, a presidential security function.

[00:21:12] Speaker 02:
It's just one of those things that shows how

[00:21:16] Speaker 02:
the presidential security function was being carried out to get us to the Berkowitz analysis because they, the presidential security detail for Turkey, had to do, I don't mean had in the sense that they lose discretion, but they were using their discretion to do that thing which MPD and United States Secret Service Uniform Division were not doing.

[00:21:40] Speaker 02:
That's how I think it ties in to the analysis.

[00:21:44] Speaker 02:
I don't think it's dispositive.

[00:21:46] Speaker 02:
If Secret Service and MPD had done their job or if they don't do their job, that is somehow determinative.

[00:21:55] Speaker 04:
Can you just follow up on that?

[00:21:57] Speaker 04:
I'm sorry, you John, Judge Wilkins?

[00:21:58] Speaker 00:
Go ahead.

[00:22:00] Speaker 04:
So your view is that they have, even if they didn't consider the protesters a threat,

[00:22:09] Speaker 04:
but they got out their tape measure and found out that they were within 100 feet.

[00:22:13] Speaker 04:
They were 90 feet away from the residence.

[00:22:17] Speaker 04:
Your position is that the Fed, the foreign security detail has the legal authority to push them back the extra 10 feet.

[00:22:29] Speaker 02:
Yes.

[00:22:30] Speaker 04:
They have the authority to enforce United States law.

[00:22:33] Speaker 04:
No, it's not.

[00:22:36] Speaker 04:
They have the right to do that.

[00:22:38] Speaker 02:
Well, your honor asked if they had the authority to push them back 10 ft.

[00:22:42] Speaker 02:
And the answer to that is yes.

[00:22:43] Speaker 02:
Do they have any law enforcement authority in the United States to enforce United States law?

[00:22:48] Speaker 02:
That answer is no.

[00:22:49] Speaker 04:
Why do they get to enforce the 100 ft line?

[00:22:52] Speaker 02:
Because they're not enforcing the 100 ft line, your honor.

[00:22:54] Speaker 02:
And that's the kind of second guessing that the district court's not permitted to engage in.

[00:22:59] Speaker 02:
What they are doing is exercising their discretionary function

[00:23:03] Speaker 02:
in part as part of the presidential security detail, which is the bedrock of a national security interest for a foreign sovereign and clearly subjective, excuse me, subject to.

[00:23:17] Speaker 04:
You said you're just pushing back the 10 feet required by law, you seem to think Judge Wilkins said that was important under your theory.

[00:23:25] Speaker 04:
It's not a hundred foot line.

[00:23:27] Speaker 04:
It's just whatever they feel like the line is needed to secure their president.

[00:23:31] Speaker 04:
That's why I was curious.

[00:23:32] Speaker 04:
You seem to be, as Judge Wilkins said, relying on that hundred foot line.

[00:23:36] Speaker 04:
It sounds like you're not.

[00:23:38] Speaker 02:
I think the 100-foot line, Your Honor, is important for the analysis of the starting point.

[00:23:45] Speaker 02:
What is the conduct?

[00:23:46] Speaker 02:
What are they doing?

[00:23:47] Speaker 02:
And the fact that U.S.

[00:23:50] Speaker 02:
law enforcement, Secret Service, and NPD are not doing that is one of the factors that's rightly considered as the starting point.

[00:23:57] Speaker 02:
But once you get through that, that they are presidential security, and you factor that in,

[00:24:03] Speaker 02:
They have a discretionary function, which the court below found.

[00:24:06] Speaker 02:
Now we're on to prong two, which is, in this case, susceptible to policy analysis.

[00:24:12] Speaker 04:
I'm sorry, finish your sentence.

[00:24:15] Speaker 02:
I don't think I have anything on chart.

[00:24:17] Speaker 04:
I just have, if my colleagues will permit me, one more question.

[00:24:20] Speaker 04:
As to the McCauley incident, can you please explain to me how, since the presidential limousine had long since passed,

[00:24:29] Speaker 04:
How did the security officials going up, covering her mouth, grabbing her arm and tearing her sign up?

[00:24:35] Speaker 04:
How did that enforce security for the president?

[00:24:37] Speaker 04:
How did that make the President Erdogan safer?

[00:24:41] Speaker 02:
And I think the answer to that question, Your Honor, is that question is second guessing the discretionary function of a presidential security detail.

[00:24:50] Speaker 02:
We have to look at the McCauley incident.

[00:24:52] Speaker 04:
Can your security detail explain to me how that had anything to do with securing the safety of President Erdogan?

[00:24:59] Speaker 04:
If they can't even articulate it, then I don't think we're doing any second guessing.

[00:25:03] Speaker 04:
So I'd like to hear their articulation.

[00:25:04] Speaker 04:
I don't want to second guess it.

[00:25:05] Speaker 04:
I just want to hear it.

[00:25:07] Speaker 02:
I don't believe there's a necessity of articulating the reason.

[00:25:10] Speaker 02:
First of all, all right, with all due respect, I'm not a presidential security member.

[00:25:14] Speaker 02:
I'm not trained.

[00:25:15] Speaker 04:
I've represented many law enforcement.

[00:25:17] Speaker 04:
Your clients here, government of Turkey.

[00:25:18] Speaker 04:
So surely you must have asked, how is that relevant to security?

[00:25:26] Speaker 02:
Your honor, the question of relevance to security is there in the presidential security detail.

[00:25:30] Speaker 02:
There is a continuing course of conduct.

[00:25:33] Speaker 02:
There's as the corporal O found there's the first incident.

[00:25:36] Speaker 02:
There's a second incident.

[00:25:37] Speaker 02:
Now we're over at the ambassador at the back and that we've left the ambassador's house and we're over at the at the embassy where you have one person.

[00:25:47] Speaker 04:
And the presidential limousine is like, you said, you opened this by saying just sort of a private attack would not be protected.

[00:25:54] Speaker 04:
So there must have been some sense in which if they were just acting privately.

[00:25:58] Speaker 04:
So there must be some sense in which they thought that was necessary to keep the president safe.

[00:26:05] Speaker 02:
With all due respect, Your Honor, I want to make clear I'm not saying there was anything private that was going on that day.

[00:26:10] Speaker 04:
Am I right in thinking the world's divided into either private or protecting President Erdogan for these purposes?

[00:26:18] Speaker 02:
I think that the world is divided into either private or part of the general job of presidential security.

[00:26:25] Speaker 04:
Tell me how the general job of presidential security, how that attack on Ms.

[00:26:32] Speaker 04:
McAuley was part of the job of making President Erdogan more secure, his presence here more secure.

[00:26:40] Speaker 02:
And what I would start by saying, Your Honor, is number one, we don't second guess and have to ask that question, because it's not a question about how does it make it more secure.

[00:26:50] Speaker 04:
What if it was the next day and President Erdogan was at Dulles Airport?

[00:26:56] Speaker 04:
Could we second guess?

[00:26:57] Speaker 02:
I'm sorry, I didn't catch the beginning of your question.

[00:26:58] Speaker 04:
If it was the next day, President Erdogan is already at Dulles Airport or Andrews Air Force Base, wherever he's flying out of.

[00:27:07] Speaker 04:
Would that still be part of it?

[00:27:09] Speaker 04:
We couldn't second guess whether that was part of the security details operations.

[00:27:15] Speaker 02:
So President Erdogan is in New Orleans and the presidential security details at the embassy.

[00:27:19] Speaker 04:
Am I understanding correctly?

[00:27:22] Speaker 04:
No, I said he's at the airport flying out of Washington, D.C.

[00:27:25] Speaker 04:
He's not about to board his plane to leave Washington, D.C.

[00:27:28] Speaker 04:
I don't know if he flies into Andrews Air Force Base, if he goes in and out of Dulles.

[00:27:31] Speaker 04:
I don't know where he flew in and out of, wherever he's flying in.

[00:27:34] Speaker 04:
He's at the airport.

[00:27:36] Speaker 04:
Okay.

[00:27:37] Speaker 04:
Hasn't left D.C.

[00:27:40] Speaker 04:
Hasn't boarded the plane yet.

[00:27:42] Speaker 02:
Yes.

[00:27:43] Speaker 04:
Is the attack on Ms.

[00:27:44] Speaker 04:
McAuley at the embassy still part of the security details operations?

[00:27:48] Speaker 04:
It can't be second guess.

[00:27:49] Speaker 01:
Yes.

[00:27:51] Speaker 04:
Thank you.

[00:27:53] Speaker 03:
All right.

[00:27:53] Speaker 03:
If there are no more questions, we'll give you a couple of minutes in reply.

[00:27:57] Speaker 03:
Ms.

[00:27:57] Speaker 03:
Frischman.

[00:28:02] Speaker 05:
May it please the court.

[00:28:03] Speaker 05:
My name is Agnieszka Frischman, and I'm presenting argument today on behalf of the plaintiffs in both the Osoian and the Herd cases, which have been consolidated for the purposes of appeal.

[00:28:14] Speaker 05:
Every court to consider similar facts, and it hasn't come up very often that agents of a foreign state attack Americans in American soil, has come to the same conclusion, which is that the agents are not entitled to immunity for assaulting, bantering American citizens where

[00:28:32] Speaker 05:
and, you know, just acting on their first amendment rights.

[00:28:35] Speaker 05:
And anyone who has driven down Massachusetts Avenue any day of the week in Washington, DC, can see these types of protests on either side of the street.

[00:28:43] Speaker 05:
This is a routine part of the fabric of the District of Columbia.

[00:28:45] Speaker 05:
There are people protesting perceived injustices at the South African embassy, at the Japanese embassy, at the British embassy.

[00:28:53] Speaker 05:
The district court in this case applied exactly the test the government of Turkey asked it to apply.

[00:28:58] Speaker 05:
And it applied it correctly.

[00:29:00] Speaker 00:
It found But you say that they didn't the district court didn't apply it directly because you say that the first prong of Berkowitz wasn't satisfied, whereas the district court said that the first problem was satisfied.

[00:29:14] Speaker 00:
Right.

[00:29:16] Speaker 05:
The district court put aside the first prong and

[00:29:20] Speaker 05:
didn't reach a result on that.

[00:29:22] Speaker 05:
She held that she wasn't going to make a determination on it and found on the second prong.

[00:29:26] Speaker 05:
So our position is that it could be upheld.

[00:29:27] Speaker 05:
The decision can be upheld on prong one or prong two or both.

[00:29:31] Speaker 00:
Let's just talk about prong one for a moment.

[00:29:34] Speaker 00:
Your position is that because the district court found that the protective detail committed assaults, and assaults are a violation of district law,

[00:29:48] Speaker 00:
Um, prong one can't be satisfied, right?

[00:29:53] Speaker 05:
Yeah.

[00:29:53] Speaker 05:
Our position is that the government, the ages of the government of Turkey cannot violate local law that they are, that is not part of their discretion.

[00:30:02] Speaker 05:
They're obviously constrained by local law and that as a matter of treaty obligation and practice.

[00:30:06] Speaker 00:
So, so, so let's suppose for the sake of this question that the protesters were in violation of one 12 because they were

[00:30:16] Speaker 00:
closer than 100 feet and there were more than two of them and they were harassing foreign officials.

[00:30:31] Speaker 00:
The protective detail pushed after requesting the US law enforcement to do so and US law enforcement refusing to enforce the 100-foot boundary

[00:30:46] Speaker 00:
They went across and all they did in my hypo is they push the people back more than a hundred feet because they consider the hundred being within a hundred feet a threat.

[00:31:02] Speaker 00:
That's an assault because any unconsented touching or use of force is an assault.

[00:31:09] Speaker 00:
So is that not immune that fails the first prong of Berkowitz?

[00:31:17] Speaker 05:
Your honor, if it's an assault, I think it does.

[00:31:20] Speaker 05:
I think also that it's clear that- Well, would that be an assault?

[00:31:24] Speaker 05:
That would have to be determined under DC law.

[00:31:26] Speaker 05:
If it met all of the elements of DC law, then- They push them back.

[00:31:30] Speaker 00:
They push them back 20, 30 feet, however many feet it takes to get them more than 100 feet away.

[00:31:41] Speaker 00:
That's an assault, right?

[00:31:44] Speaker 05:
Yes.

[00:31:45] Speaker 05:
Therefore, I mean, one, first, they're not entitled to enforce DC law.

[00:31:49] Speaker 05:
That's a matter that is up to the DC police and the Secret Service.

[00:31:53] Speaker 05:
So they would be acting outside their discretion.

[00:31:55] Speaker 05:
So under the Red Lake case, they wouldn't have immunity for that.

[00:31:58] Speaker 00:
So even though Congress has specified that these people shouldn't be within 100 feet, and they feel that that's not just a violation of US law, but a danger, and they push them back, they could be held liable for doing so.

[00:32:14] Speaker 05:
I think that is very close to the fact pattern that this court considered in the Red Lake Chippewa Indian case where the FBI without authority tried to enforce the law on an Indian reservation and this court held that the FBI was not entitled to immunity for that reason because it exceeded its own authority and enforced a law where it didn't have authority to do that.

[00:32:32] Speaker 05:
And the Second Circuit decided the same thing in the CIA mail opening case where somebody exceeds their authority.

[00:32:37] Speaker 00:
and acts to, you know, well, this is enforcing laws because you feel like, you know, you want to take it upon yourself to enforce the law.

[00:32:49] Speaker 00:
They're trying to protect the president, the head of state.

[00:32:54] Speaker 00:
They can't do that.

[00:32:56] Speaker 00:
That those cases are analogous to this.

[00:33:00] Speaker 05:
If we're talking about wrong one, then I think

[00:33:04] Speaker 05:
DC criminal law does restrain the government of Turkey that is in the restatement it's in the foreign affairs manual and it's clear that that's the practice of the State Department and that foreign agents know and are told that they have to abide by local law.

[00:33:18] Speaker 05:
And it's very clear the State Department set out in the foreign affairs manual that they will enforce criminal law investigate ask for waivers.

[00:33:26] Speaker 05:
and prosecute to the fullest extent of their ability.

[00:33:29] Speaker 00:
So let's suppose one of the protesters is holding a gun, a rifle, which violates local law.

[00:33:39] Speaker 00:
And the protective detail says, go arrest that person and seize their gun.

[00:33:43] Speaker 00:
And they don't.

[00:33:47] Speaker 00:
And the protective detail goes over and tackles a person and takes away their gun.

[00:33:52] Speaker 00:
The person sues for assault.

[00:33:55] Speaker 00:
the protester and he wins?

[00:33:58] Speaker 05:
I think if that protester is sued for assault, they would lose for a number of reasons.

[00:34:04] Speaker 05:
But in this case, what we have is we have the other protesters.

[00:34:07] Speaker 05:
What happened here is you had Rukan Izik, who was walking with her child.

[00:34:11] Speaker 00:
I'm asking you, my hypo, you say that protester loses.

[00:34:19] Speaker 05:
If someone with a gun is threatening an agent

[00:34:22] Speaker 05:
Agent neutralizes.

[00:34:23] Speaker 00:
They're not threatening.

[00:34:24] Speaker 00:
They're just holding the gun.

[00:34:25] Speaker 00:
They're holding it down by their side.

[00:34:29] Speaker 00:
And they say, arrest that person and take that gun away.

[00:34:33] Speaker 00:
And the Secret Service doesn't.

[00:34:34] Speaker 00:
And they run over, and they grab the person, and they knock him down, and they take his gun away.

[00:34:40] Speaker 00:
Those are the facts.

[00:34:43] Speaker 00:
So that person sues, and the protective detail on Turkey, they're not immune?

[00:34:50] Speaker 05:
I think they are not immune, but they

[00:34:52] Speaker 05:
if put on trial would likely win on the merits.

[00:34:55] Speaker 00:
Why?

[00:34:55] Speaker 05:
I think they are not immune because they've exceeded their authority to act.

[00:35:07] Speaker 00:
So they don't have authority to knock someone down and take a gun away from them that's under 100 feet away from their head of state?

[00:35:21] Speaker 05:
I think that is something that law enforcement here and overseas, I think happened probably comes up all the time.

[00:35:29] Speaker 05:
And one of the consequences are that sometimes they're put on trial for excessive force and, and the jury will make the determination of whether that conduct was reasonable and whether it exceeds, you know, I think that I don't think there is immunity if it's an assault.

[00:35:43] Speaker 05:
I think in this case, it might not be an assault.

[00:35:47] Speaker 00:
Okay.

[00:35:49] Speaker 03:
Can I ask you what if the same thing happens in Istanbul and our president visits and the local authorities do not take a gun away from a protester that is near our embassy and the Marines guarding our embassy ask the local law enforcement authorities to help and they refuse?

[00:36:20] Speaker 05:
I think it would be the exact same thing that we just discussed and kind of one added wrinkle is that most foreign states have a blanket territorial tort exception to foreign sovereign immunity and we haven't found one where there's a similar discretionary function so that this question of discretionary function it actually doesn't come up because the states that have a territorial tort exception to immunity don't include that so

[00:36:44] Speaker 05:
This debate wouldn't come up, but the debate of whether I think our Secret Service are told that they have to obey local law.

[00:36:49] Speaker 05:
And I think if they don't, then there will be consequences.

[00:36:53] Speaker 05:
And presumably, if their conduct is reasonable, the same thing would happen as with Judge Wilkins.

[00:37:01] Speaker 03:
I'm not understanding your answer.

[00:37:03] Speaker 03:
What would happen to the Marines who left the embassy and with force either took guns away, knives away, whatever?

[00:37:12] Speaker 03:
What would happen to them in Turkey?

[00:37:15] Speaker 05:
In Turkey, it would depend on the Turkish law on sovereign immunity.

[00:37:19] Speaker 05:
And I'm not familiar with that law.

[00:37:23] Speaker 05:
But my understanding is almost no states include a discretionary function.

[00:37:27] Speaker 05:
So if there is a tort, and if that would qualify as a tort, then they could be liable under Turkish law.

[00:37:33] Speaker 05:
But I am not an expert on Turkish law of sovereign immunity.

[00:37:37] Speaker 05:
All right.

[00:37:38] Speaker 04:
The purposes of the discretionary function analysis

[00:37:43] Speaker 04:
The authority to exercise discretion has to come from somewhere.

[00:37:49] Speaker 04:
Who has to confer that discretion?

[00:37:52] Speaker 04:
Congress?

[00:37:54] Speaker 04:
Or can the executive branch through regulations?

[00:37:58] Speaker 04:
What is the source of the discretion?

[00:38:02] Speaker 04:
The source of the discretion that the Turkish security detail is on?

[00:38:05] Speaker 04:
Just on the discretionary.

[00:38:06] Speaker 04:
Let's start with the federal tort claims, which gets us out of this context.

[00:38:10] Speaker 04:
In the Federal Tort Claims Act, it would be the federal government.

[00:38:14] Speaker 04:
It can't be the executive branch because they're the ones getting sued.

[00:38:16] Speaker 04:
They can't get out of the FTCA just by passing regulations or policies that say we can violate state law, tort law, right?

[00:38:25] Speaker 04:
I guess I'm not totally understanding the question.

[00:38:27] Speaker 04:
The whole point of discretionary function is that there's some discretion that has been conferred on government officials.

[00:38:35] Speaker 04:
All right.

[00:38:36] Speaker 04:
Who has to confer that discretion?

[00:38:37] Speaker 04:
Where do we look to find that conferral of discretion?

[00:38:42] Speaker 04:
Do we look to statutes?

[00:38:45] Speaker 05:
I think you looked at statutes, regulations, and policy.

[00:38:49] Speaker 05:
Okay.

[00:38:50] Speaker 04:
What statute, regulation, or policy governs the conduct of foreign security details?

[00:38:58] Speaker 04:
What confers discretion on them?

[00:39:01] Speaker 05:
I think the outer limits of their discretion would have to be US law, federal, state, and local law.

[00:39:09] Speaker 04:
So is the question whether the Turkish government has conferred this discretion on the detail to attack protesters, or must it be conferred by US law, congressional or executive?

[00:39:25] Speaker 05:
It must be U.S.

[00:39:26] Speaker 05:
law because it's territorial.

[00:39:28] Speaker 05:
So if they're acting in the United States, it has to be U.S.

[00:39:31] Speaker 04:
law.

[00:39:31] Speaker 04:
So I'm back to asking you the same question I asked Mr. Shamel, and that is, I just, no one has told me where, is it a statute that authorizes foreign security details to

[00:39:44] Speaker 04:
take measures against Americans when they're here?

[00:39:49] Speaker 04:
Is there an executive branch, a State Department regulation, a State Department policy, a State Department manual that says something somewhere must say what they can do?

[00:40:02] Speaker 04:
Because otherwise, I shouldn't think they would have authority to do anything other than ask the Secret Service to take protective measures.

[00:40:11] Speaker 05:
My understanding is that under US law and international law, the obligation to protect the visiting head of state rests with the United States, with the host country.

[00:40:20] Speaker 05:
So it rests with the Secret Service and the Department of State.

[00:40:25] Speaker 04:
And what if he has to be conferred on foreign security details?

[00:40:30] Speaker 04:
What role do they allot to them in this process?

[00:40:33] Speaker 05:
There is nothing in the record that's been submitted by Turkey that indicates that they received any authorization to act

[00:40:40] Speaker 05:
in any manner.

[00:40:41] Speaker 05:
So nothing's in the record about.

[00:40:42] Speaker 04:
So there's nothing in the record here on any law that has conferred any discretion on these, the Turkish security detail.

[00:40:52] Speaker 05:
I don't believe so.

[00:40:53] Speaker 05:
And it's my understanding that under international and US law that duty to protect the visiting head of state rests with the Secret Service and under international law rests with the host country.

[00:41:03] Speaker 04:
Can you have a discretionary function without American law in some form conferring discretion in the first place?

[00:41:13] Speaker 05:
An interesting question.

[00:41:16] Speaker 05:
I suppose the answer may well be no.

[00:41:19] Speaker 05:
And there is no case, for example, that's applied the presumption to in the FSA context.

[00:41:26] Speaker 05:
There's no way of evaluating whether or not Turkey acted in accordance with its standard operating procedures or in accordance with any regulation or in accordance with any authority that was designated either by the

[00:41:36] Speaker 05:
State Department or their own government, because there's nothing in the record on that at all.

[00:41:41] Speaker 04:
Do you know if it's worked out on a case-by-case basis before a foreign dignitary arrives with the respective roles of their own security detail and domestic law enforcement, domestic security will be?

[00:41:56] Speaker 05:
My understanding is that it is.

[00:41:57] Speaker 05:
That's not in the record in this case, but my understanding is that that's exactly right.

[00:42:01] Speaker 00:
But didn't you?

[00:42:03] Speaker 00:
Go ahead.

[00:42:04] Speaker 00:
But then you argue below, both through your expert's testimony and your briefing, and you know, you argue in your briefing before us that we should look at kind of the State Department manual and procedures and what that allows and doesn't allow, and that that sets the boundaries for what this Turkish protective detail

[00:42:32] Speaker 00:
um, are allowed to do.

[00:42:35] Speaker 00:
I mean, hasn't that been your position throughout this litigation?

[00:42:39] Speaker 05:
Our position has been that if you go on prong one, that it's DC state law or state law or anywhere that constrains their ability act that there's no ability to violate the law.

[00:42:52] Speaker 05:
And that is in the FGCA context or countless cases that hold that.

[00:42:56] Speaker 05:
And that's okay.

[00:42:57] Speaker 00:
Let's suppose I disagree with that.

[00:42:58] Speaker 00:
We're in prong too.

[00:43:02] Speaker 05:
In prong two, we've argued that the district court did what it was exactly supposed to do, which is it followed the instruction in Galbera to the focus on the nature of the actions taken and on whether they are susceptible to policy analysis.

[00:43:13] Speaker 05:
Whereas this circuit put it in limit the nature of the actions taken rather than the status of the actors.

[00:43:19] Speaker 05:
And the district court looked at what happened, looked at the video, looked at the affidavits of arrest, the indictment, and looked at the entire record

[00:43:25] Speaker 00:
But what is the relevance of your expert testimony in all of the stuff in your briefing about State Department kind of manuals and procedures with respect to protection of, I guess, U.S.

[00:43:43] Speaker 00:
protected persons?

[00:43:45] Speaker 05:
Well, the relevance as to prong two is the court found that the objective conduct wasn't related

[00:43:51] Speaker 05:
to protecting the president.

[00:43:52] Speaker 05:
She found that they pushed through the police line, ran after the plaintiffs who were running away, shouted, I'm going to rape you, and knocked women unconscious and kicked them when they were unconscious and kicked them into seizures.

[00:44:03] Speaker 05:
And she found that that objective conduct wasn't related to the presidential protection detail.

[00:44:09] Speaker 05:
I think what our experts said was the standard operating procedure for protecting a president is to take him away and not run out and attack other people, but to coalesce around the president and remove him

[00:44:21] Speaker 05:
danger.

[00:44:22] Speaker 05:
And that didn't happen.

[00:44:23] Speaker 05:
So our expert argued that that showed there wasn't a risk.

[00:44:25] Speaker 05:
But I think the district court's decision was grounded in the objective conduct, which is she looked at the agents of Turkey who pushed past the police line.

[00:44:33] Speaker 05:
The video is very graphic where the agents pushed past the police officers and bloodied some of their noses ran across the street, ran at women who were running away, holding their children, shouting, I'm going to rape you as a woman ran across the street.

[00:44:46] Speaker 05:
And you can see her stroller

[00:44:48] Speaker 05:
capsized on the grass as she ran away when they were shouting, I'm going to rape you, you're a whore.

[00:44:52] Speaker 00:
So why isn't that a finding that they abused their discretion?

[00:44:57] Speaker 05:
That is a finding that that conduct is not objectively related to protecting friends.

[00:45:03] Speaker 05:
The discretionary function never kicks in because it cuts off at that first step.

[00:45:07] Speaker 05:
That that sort of conduct does not fall within the discretionary function at all because it's not objectively related.

[00:45:14] Speaker 05:
protecting the president.

[00:45:15] Speaker 05:
It was an out-and-out attack on First Amendment protesters.

[00:45:21] Speaker 05:
So you never get to them.

[00:45:23] Speaker 03:
Well, using the language of Berkowitz, a second part of the second prong would be this is something that Congress never intended to shield from liability.

[00:45:39] Speaker 03:
Isn't that correct?

[00:45:40] Speaker 05:
That's correct, Your Honor.

[00:45:41] Speaker 05:
All right.

[00:45:43] Speaker 05:
In fact, every court that has considered similar facts like the Hurtado case in the Ninth Circuit and the Miango case here in the District of Columbia has come out to the same result.

[00:45:53] Speaker 05:
In the Gerritsen versus Hurtado case, there was a man who was leafleting outside the Mexican embassy and the staff came out, hit him with a metal pipe and took away his leaflets.

[00:46:02] Speaker 05:
That was found not to be immune.

[00:46:03] Speaker 05:
In Miango,

[00:46:04] Speaker 05:
There was a cluster, small group of protesters that were protesting the Democratic Republic of Congo president and his security personnel beat up the protesters and beat them to a pulp.

[00:46:14] Speaker 05:
And the district court here, the District of Columbia held that conduct was not immune under prong one.

[00:46:19] Speaker 05:
And so we submit that either prong one or prong two or one or the other or both clearly show that there's no immunity in this case because the conduct was not objectively related to protecting the president.

[00:46:32] Speaker 05:
And I guess as an analogy, some of the cases that

[00:46:35] Speaker 05:
have been cited, for example, if you look at the forestry cases, the court can look and say the control burn, you could abuse your discretion to control burn, that's a discretionary function.

[00:46:45] Speaker 05:
But if the Rangers had taken a gasoline can and a match and burnt down the tractor of the logging company, the court can certainly look behind the facts and say, that's not a discretionary function.

[00:46:57] Speaker 05:
A controlled burn is a discretionary function, but arson is not.

[00:47:01] Speaker 05:
And that's really the same thing that happened here.

[00:47:03] Speaker 05:
Protecting the president is a discretionary function, but what happened here is like arson.

[00:47:08] Speaker 05:
It was an all-in-out attack on First Amendment protesters who were standing exactly where they were told to stand, on the sidewalk, holding their signs.

[00:47:16] Speaker 05:
And the Lacey McCall example is a clear example of that.

[00:47:18] Speaker 05:
This was hours later.

[00:47:19] Speaker 05:
She was chanting a pro-democracy chant outside the embassy where she was told to stand.

[00:47:24] Speaker 05:
And there's a picture in the joint appendix at 550 that shows the agents with their hands over her mouth and whipping up her signs.

[00:47:33] Speaker 05:
the district court correctly evaluated this conduct and found it wasn't rationally related to protecting the president.

[00:47:38] Speaker 00:
So with respect to the second incident, let's suppose that the district court had found or we believe that the evidence clearly shows that the protesters were in violation of section 112.

[00:47:58] Speaker 00:
What relevance does that have?

[00:48:02] Speaker 05:
I think the district court was correct that it doesn't.

[00:48:08] Speaker 00:
Why not?

[00:48:09] Speaker 00:
Why doesn't it have any relevance?

[00:48:11] Speaker 05:
It would be up to the Metropolitan Police Department to enforce 112 and determine if it applied.

[00:48:17] Speaker 05:
And it couldn't possibly apply to other plaintiffs who weren't within 100.

[00:48:24] Speaker 05:
We have plaintiffs who weren't near, like Mrs. Rukin was running away and outside the hundred foot point.

[00:48:29] Speaker 05:
Like the plaintiffs weren't a unified group that all knew each other.

[00:48:32] Speaker 05:
Some of them were back, some of them were forward, but all of the plaintiffs were attacked and beaten.

[00:48:37] Speaker 05:
And it certainly isn't the case that they were all within 100 feet or even knew each other or coordinated.

[00:48:42] Speaker 00:
But as to the plaintiffs that were within 100 feet, you're saying that the fact that they were breaking federal law has no relevance to this analysis.

[00:48:53] Speaker 05:
Well, 112 does have a carve out for First Amendment protests.

[00:48:57] Speaker 05:
So I don't think they were breaking federal law.

[00:49:03] Speaker 00:
If we find that they were, you're saying it doesn't matter.

[00:49:07] Speaker 05:
I think it does not impact the immunity determination.

[00:49:12] Speaker 00:
Okay.

[00:49:16] Speaker 00:
And that's because the protective detail, if they believe that the local law enforcement is not really enforcing local law,

[00:49:33] Speaker 00:
they can't take that into account at all as to how they protect their protectee.

[00:49:40] Speaker 05:
I think they certainly can.

[00:49:42] Speaker 05:
But what our experts said is that what would have happened in that case is you would have removed the protectee and that the appropriate response isn't to run across the street, hit women until they fall on the ground unconscious and keep kicking them while they're lying there or in a kick, knock people's teeth out as they're lying on the ground.

[00:50:00] Speaker 05:
and chase people across the street and shot obscenities at them while they're running away with their children.

[00:50:05] Speaker 05:
That there are certainly steps you could take within the law if you thought the MPD wasn't adequately doing its job.

[00:50:12] Speaker 05:
But one of those steps is not to commit assault on people who are standing exactly where the police told them to stand.

[00:50:18] Speaker 05:
And that's important to remember in this case, the plaintiffs were told to stand on the sidewalk by the MPD and that's where they stood.

[00:50:27] Speaker 03:
This, the second incident, there's no question that Erdogan was inside at that point, right?

[00:50:35] Speaker 05:
I believe he was, he arrived at his car before it started and then came out of his car and walked into the residence.

[00:50:42] Speaker 03:
Okay.

[00:50:43] Speaker 03:
But the second one where the surge came from the protective detail across the street, he was, you can't tell from the film, but he was nowhere outside.

[00:50:57] Speaker 03:
He'd left the car, or maybe we don't know, maybe he was still, but you had those gates and you had the fence.

[00:51:06] Speaker 03:
In other words, I'm just trying to figure out, there was no way the protective detail could say he was in danger, imminent danger, or any kind of danger for that matter.

[00:51:19] Speaker 05:
Well, that's what the district court concluded.

[00:51:20] Speaker 05:
And I think that's what the video shows the timestamps.

[00:51:23] Speaker 05:
I'm not sure match up quite exactly.

[00:51:25] Speaker 05:
But what seems like happened is he arrived.

[00:51:27] Speaker 05:
He was in the car.

[00:51:28] Speaker 05:
The incident started while he was in the car.

[00:51:30] Speaker 05:
He got out of the car and he walked into the residence.

[00:51:33] Speaker 03:
Right.

[00:51:35] Speaker 03:
That's why I think there's a good likelihood.

[00:51:37] Speaker 03:
He said, I don't want to see him when I come out.

[00:51:40] Speaker 03:
But OK, are there any more questions?

[00:51:44] Speaker 01:
No.

[00:51:44] Speaker 03:
OK.

[00:51:45] Speaker 03:
All right.

[00:51:48] Speaker 03:
Let's see.

[00:51:50] Speaker 03:
Mr. Shamil, why don't you take two minutes?

[00:51:53] Speaker 02:
Thank you very much, Your Honor.

[00:51:56] Speaker 02:
I'd just like to make a couple of points, if I may, in response to arguments by Pali Council.

[00:52:02] Speaker 02:
One statement was made, which is that there's nothing in the record submitted by Turkey.

[00:52:06] Speaker 02:
And I just would like to reiterate that Burton is on the plaintiff, not on Turkey.

[00:52:10] Speaker 02:
there was a misrepresentation of the law underneath, which is that somehow foreign nationals are constrained by United States law.

[00:52:18] Speaker 02:
MacArthur says otherwise.

[00:52:20] Speaker 02:
And I think there is a clear sort of meshing in plaintiff's arguments between the FTCA and the FSIA, while similar, not in any way identical.

[00:52:31] Speaker 02:
The example given about the FBI at a Native American reservation, CIA, those are all American actors.

[00:52:39] Speaker 02:
They are different than a foreign sovereign.

[00:52:41] Speaker 02:
It is different.

[00:52:42] Speaker 02:
The FTCA and the plaintiff's counsel refers to Letellier, which goes from that 1970s case in Hawaii, all talk about Americans.

[00:52:53] Speaker 02:
That's the FTCA.

[00:52:55] Speaker 02:
It's different.

[00:52:56] Speaker 02:
It's not the same.

[00:52:57] Speaker 04:
Your point is that the foreign security detail has greater authority, whether it's to enforce the federal statute's 100-foot rule or to allow a greater

[00:53:19] Speaker 04:
curtain of protection around the foreign leader than the Secret Service, for example?

[00:53:25] Speaker 04:
Not at all, Your Honor.

[00:53:27] Speaker 04:
Is discretion greater than what the Secret Service has, or is it the same?

[00:53:31] Speaker 04:
What is my comparator?

[00:53:33] Speaker 02:
The discretion is greater, but the authority, it's not a question of authority, Your Honor.

[00:53:37] Speaker 02:
They don't have authority, they have immunity.

[00:53:39] Speaker 04:
And so what the court found below, which I think is- To have a discretionary, who conferred, can you just tell me who conferred

[00:53:48] Speaker 04:
or what conferred discretion on the Turkish security detail to operate on Americans as opposed to simply securing the president by not coming, by driving away, by rushing him in?

[00:54:03] Speaker 04:
What conferred authority on them to operate on American civilians in a way that the Secret Service could not?

[00:54:15] Speaker 02:
I see I'm over my time, Your Honor.

[00:54:17] Speaker 02:
May I please respond?

[00:54:18] Speaker 02:
Of course, yes.

[00:54:19] Speaker 02:
Thank you.

[00:54:21] Speaker 02:
The authority, it comes from the common law, the international law about the relations between sovereigns and its immunity.

[00:54:32] Speaker 04:
But immunity doesn't mean you're immune from the law.

[00:54:35] Speaker 04:
It means you're immune from the courts.

[00:54:38] Speaker 04:
It means you're immune from the courts.

[00:54:40] Speaker 04:
If the State Department said, after viewing this video,

[00:54:44] Speaker 04:
get those people out of here and they may never return.

[00:54:48] Speaker 04:
They could do that, right?

[00:54:49] Speaker 02:
Yes ma'am.

[00:54:51] Speaker 04:
And you would have to comply, Turkey would have to comply with that, correct?

[00:54:55] Speaker 02:
Yes, sure.

[00:54:56] Speaker 04:
Okay, and so it's not as though that Turkey has a legally conferred by Congress or executive branch right to say, commit violations of criminal laws in this country.

[00:55:08] Speaker 04:
It's simply that they won't be hailed into our courts, correct?

[00:55:10] Speaker 04:
That's what the immunity is.

[00:55:12] Speaker 02:
Civil courts runner.

[00:55:14] Speaker 02:
I think the criminal court is entirely different analysis and what would happen here.

[00:55:19] Speaker 04:
It's a right not to be held into record doesn't mean the United States government couldn't demand reparations.

[00:55:24] Speaker 04:
It doesn't mean the United States government itself couldn't impose some sort of sanction or punishment or consequence.

[00:55:30] Speaker 04:
Correct.

[00:55:31] Speaker 02:
Correct.

[00:55:32] Speaker 04:
So you're not immune from the law, you're immune from the courts.

[00:55:36] Speaker 04:
So I'm having trouble understanding how the Foreign Sovereign Immunities Act is a source of law conferring legal discretion on the Turkish security detail to act on American civilians.

[00:55:57] Speaker 02:
I don't believe that it is a source of law allowing them to act on America.

[00:56:00] Speaker 04:
What does what gives them this discretion?

[00:56:03] Speaker 04:
What is the source of their discretion?

[00:56:06] Speaker 02:
The source of their discretion is the immunity that's conferred on them.

[00:56:10] Speaker 04:
It's a consequence.

[00:56:11] Speaker 04:
It's what happened.

[00:56:12] Speaker 04:
You know, unless you're telling me that there's a statute of regulation that says do what you want, you have immunity.

[00:56:21] Speaker 04:
which is not what the FSIA says.

[00:56:23] Speaker 04:
It just says you can't be hailed into our courts.

[00:56:26] Speaker 04:
So what is it?

[00:56:27] Speaker 04:
Is there something international?

[00:56:28] Speaker 04:
I just I'm really quite confused by this question.

[00:56:32] Speaker 02:
Right.

[00:56:32] Speaker 02:
And I think, Your Honor, it goes to the discussion that the court was having with appellees during their opportunity to discuss the case with you.

[00:56:40] Speaker 02:
What happens to Americans, it's international law.

[00:56:43] Speaker 02:
It's comedy.

[00:56:44] Speaker 02:
It's the discretion between nations.

[00:56:47] Speaker 02:
Your Honor has very accurately identified the other avenues that are available to plaintiffs to avail themselves.

[00:56:53] Speaker 04:
Can you probably make an international law statute

[00:56:58] Speaker 04:
cases recognizing the authority of foreign security details, not to just secure their person by driving away, by not coming at all if there's a security risk, by rushing him into the building, but instead to reach out and attack local civilians, maybe for good reasons, maybe for bad reasons.

[00:57:20] Speaker 02:
And in that scenario, I would refer your honor to two things, the statute that we've been discussing and the Berkovitz test.

[00:57:28] Speaker 04:
Berkovitz is simply a test for immunity from court.

[00:57:32] Speaker 04:
It's not a source of discretion.

[00:57:34] Speaker 04:
The discretion always comes from some other positive source of law.

[00:57:39] Speaker 04:
There's something else that confers discretion on our federal agencies to act.

[00:57:42] Speaker 04:
They have no organic statutes.

[00:57:44] Speaker 04:
That's what we do under the FTCA.

[00:57:46] Speaker 04:
And so what was the first statute you've been talking about?

[00:57:50] Speaker 04:
Is that 128?

[00:57:50] Speaker 04:
I'm sorry.

[00:57:53] Speaker 04:
Go ahead.

[00:57:55] Speaker 04:
Sorry.

[00:57:56] Speaker 02:
And I'm sorry, it may be on my end.

[00:57:59] Speaker 02:
Some of the words I'm missing, Your Honor, said.

[00:58:01] Speaker 02:
The statute I'm referring to is the original statute we were discussing, 28 USC 1605, which talks about how you make the determination.

[00:58:10] Speaker 02:
Because there's no, I'm not aware of, and I'd be happy to brief.

[00:58:13] Speaker 04:
We're back to saying the Foreign Sovereign Immunities Act is the source of positive law for not, no.

[00:58:20] Speaker 04:
It's just, I get your argument that if you meet discretionary function, what that statute says is you can't be held into our courts, at least civilly.

[00:58:28] Speaker 04:
I understand that.

[00:58:29] Speaker ?:
Okay.

[00:58:30] Speaker 04:
I'm just, I'm not aware of any, I'd always thought there was some source of positive law that conferred discretion on governmental actors that we could look to.

[00:58:40] Speaker 04:
So we would know what the scope of the security detail or security details generally authority is in the United States.

[00:58:48] Speaker 02:
And what I'd ask the court is perhaps that's something that we could do further briefing on.

[00:58:53] Speaker 02:
But my sense is it has to do with the treaties that go between nations for the protection of internationally protected people or internationally protected persons.

[00:59:04] Speaker 02:
So that's why I was referring to the discussion Your Honor was having earlier about Judge Henderson's example of what happens to the Marines that rush out of the embassy to protect an American president in Istanbul.

[00:59:16] Speaker 02:
Right?

[00:59:17] Speaker 02:
That that's where that that that discretion comes from.

[00:59:21] Speaker 02:
We go to Istanbul, we Americans go to Istanbul and our president and our Secret Service and our Marines, they're given discretion to protect our president.

[00:59:30] Speaker 02:
And so when the president of another nation like Turkey comes here, we involve them.

[00:59:36] Speaker 04:
Is it true that the Marines can leave the embassy grounds?

[00:59:39] Speaker 04:
They're a military force.

[00:59:41] Speaker 04:
I thought if they left embassy grounds without authorization, they would be invading the other country.

[00:59:46] Speaker 04:
I'm not talking about CSU, I'm talking about the Marines at the embassy.

[00:59:50] Speaker 02:
I only mentioned the Marines, Your Honor, because I think that was in Judge Henderson's.

[00:59:54] Speaker 04:
Right, but I wouldn't assume lightly that our Marines can leave their location and go into the territory of a foreign country to attack people.

[01:00:05] Speaker 03:
What happened to Benghazi?

[01:00:07] Speaker 03:
I thought Benghazi when the locals were either nowhere around or completely failed to help.

[01:00:17] Speaker 02:
The answer is, I don't know that, Your Honor, as it relates to Marines, but to keep it more sort of in line with where we are with presidential security, if our presidential security, United States Secret Service or United States Department of State, which are tasked in many of the same regards as the Secret Service, were to rush out of our embassy or the residents

[01:00:38] Speaker 02:
and take the actions akin to this.

[01:00:41] Speaker 02:
We would, under international law, demand that that discretion for their actions enable them to have the immunity that Turkey has here in this case.

[01:00:50] Speaker 02:
But Your Honor is absolutely correct that if there was a Turkish national who claimed that they were hurt in that or that they had been injured in some way and they had suffered a tort, there would be an opportunity for them, as Your Honor points out,

[01:01:06] Speaker 02:
through bilateral negotiations between countries, through other means.

[01:01:11] Speaker 02:
It's not in the civil courts.

[01:01:14] Speaker 04:
It sounded like you said earlier, and this would make perfect sense to me, that before a foreign dignitary arrives, there's negotiations.

[01:01:25] Speaker 04:
between the United States government and the foreign government on what kind of security and security jail they bring with them and what their role is.

[01:01:36] Speaker 04:
But no one has put that in, what was arranged in advance in this case, no one's put that into the record.

[01:01:44] Speaker 04:
And it seems to me that would be the likely source, would define sort of the meets and bounds of what the discretion is that the foreign security detail

[01:01:53] Speaker 04:
had, but that hasn't been put into the record.

[01:01:57] Speaker 02:
I think in this record, your honor, I'd like to cite, if I may, to the Joint Appendix.

[01:02:02] Speaker 02:
The district court found had the facts of these cases.

[01:02:04] Speaker 04:
What page on the Joint Appendix?

[01:02:07] Speaker 02:
It is JA455, your honor.

[01:02:11] Speaker 02:
Had the facts of these cases differed slightly, the court's decision as a defendant Turkey sovereign immunity may have differed as well.

[01:02:18] Speaker 02:
The Turkish security forces had the discretion to protect their president.

[01:02:24] Speaker 02:
And the court was correct in its initial threshold matter.

[01:02:29] Speaker 02:
It was correct in its Berkovitz prong one analysis.

[01:02:33] Speaker 02:
And it was mostly there on the prong two analysis.

[01:02:36] Speaker 02:
The problem is the court erred by adding in this sort of violent acts or degree situation where the court went on to say,

[01:02:46] Speaker 02:
the Turkish and this is J. A 455.

[01:02:49] Speaker 02:
The Turkish security forces had the discretion to protect their president, but they only had the discretion to air to some degree.

[01:02:57] Speaker 02:
And that absolutely captures the problem below with the district court, which is a district court is entering into exactly the type of second guessing that gobbled said they cannot do.

[01:03:11] Speaker 02:
District courts, there are 700 of them across the country.

[01:03:14] Speaker 02:
Each district court cannot engage in an analysis of what is, is it excessive or not excessive?

[01:03:21] Speaker 02:
Is it abusive discretion?

[01:03:24] Speaker 02:
Because the reality is, I don't know why I started talking louder, I apologize.

[01:03:29] Speaker 02:
The reality is that when we start down that road, we are bringing international relations to a screeching halt.

[01:03:41] Speaker 02:
There is nothing more susceptible to policy analysis and national security.

[01:03:45] Speaker 02:
There's nothing more important in a single sort of point to national security than the head of state and the protection of that head of state and what that means in international relations.

[01:03:59] Speaker 02:
And so the problem becomes Congress allows an abuse of discretion to be tolerated, but the district court

[01:04:09] Speaker 02:
aired and they thought it was just too much.

[01:04:12] Speaker 02:
And that's not what the statute says.

[01:04:14] Speaker 02:
The discretionary function, regardless of whether discretion be abused.

[01:04:18] Speaker 02:
That's the end of the analysis.

[01:04:21] Speaker 03:
All right.

[01:04:22] Speaker 03:
Do you have any more questions, Judge Millett?

[01:04:24] Speaker 03:
No.

[01:04:25] Speaker 03:
Thank you.

[01:04:26] Speaker 03:
Judge Wilkins?

[01:04:27] Speaker 02:
No.

[01:04:28] Speaker 03:
All right.

[01:04:28] Speaker 03:
Well, thank you, counsel both.

[01:04:30] Speaker 03:
And your case is submitted.