[00:00:06] Speaker 03:
Good morning, everyone.

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All right, Judge Callahan, who is appearing by video, Judge Bress and I welcome all of you to the U.S.

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Court of Appeals for the Ninth Circuit here in our San Francisco courthouse.

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We welcome you and look forward to hearing your argument today.

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Just to go over a housekeeping matter, as you know, 20 minutes have been allotted for each side to present your arguments.

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The appellant should let me know before you start your argument how much time you would aspirationally

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like to reserve for rebuttal.

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I'll try to help you keep track of time, but please be responsible for your own time as well.

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When your 20 minutes is up, if one of us is asking a question and would like to continue the discussion, then by all means, please finish answering the question.

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All right, when you're ready, please approach the lecture.

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The case is Defense for Children in National Palestine versus Joseph Biden et al.

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Good morning, your honors.

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Katherine Gallagher for plaintiff appellants, and I'm going to reserve four minutes for rebuttal.

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May it please the court?

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This case asks whether the executive branch can tell the judiciary it must stand aside, powerless, while the executive violates binding law simply because the case involves foreign affairs.

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Plaintiffs here, Palestinian human rights organizations, Palestinian Americans, Palestinians in Gaza, all of whom have suffered incalculable loss to their families, including the death of more than 230 people collectively.

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They come to this court to enforce the profound legal duty to prevent and not further what is recognized as the most serious of crimes.

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Here, an unfolding genocide in Gaza that has led to mass death, destruction, starvation, and displacement.

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This genocide has been enabled by a massive flow of lethal U.S.

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munitions that has continued despite the clear warning that genocide is occurring.

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The text of the Constitution, foundational principles of separation of powers,

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and case law from Marbury through Zivotovsky make clear the political question doctrine requires that the judiciary

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review claims that executive officials have breached specific legal obligations enshrined in and approved by the political branches in the Genocide Convention, domestic criminal law, and customary international law, including in cases that involve foreign policy.

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First, let me ask you this, and of course, I start with the premise that there's no question that what

[00:03:06] Speaker 03:
has happened and what is happening is heartbreaking beyond belief, but isn't the law really

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dictate exactly what you said we can't do, which is essentially to step aside and defer to the foreign policy choices of the political branches?

[00:03:23] Speaker 04:
Your Honor, respectfully, we believe no.

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The case law is very clear, and I would highlight especially the Zivotovsky two cases, which I think really set the framework for this court to examine the question before it.

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In Zivotovsky one,

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The Supreme Court went back to foundational principles of separation of powers.

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It looked to see whether there was a legal question at issue, and it found that there was a question whether a statute or a law has been violated.

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It was not a case involving a discretionary executive branch decision.

[00:04:02] Speaker 02:
Well, Ms.

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Gallagher, I'm assuming you think that Zivitofsky 1 is your best case.

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Is that correct?

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I think it's looking at Zivitofsky 1 and then the instructions in Zivitofsky 2 to find a textual commitment, Judge Callahan, in the Constitution for the specific foreign policy powers that the executive is

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saying it has.

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And there, had the Supreme Court thought that a general invocation of foreign policy was sufficient, it would not have done the discriminating textual analysis that it did to locate the recognition power in Article 2.

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Well, let me ask you this, though.

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You frame your claims as requiring only a legal determination, similar to that in Sivakoski 1.

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But if we were to rule that the president and his executives were complicit in genocide, wouldn't we necessarily be second guessing their balancing of the needs of an ally, regional stability and protection for civilians?

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Your Honor, what this case presents is a clear allegation, a well-planned allegation, of violations of binding law.

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The duty to prevent genocide and aiding and abetting genocide.

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Those are clearly established in law.

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And so what we are asking is what the court did back in the founding era in the cases like Little versus Barem or

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the charming Betsy or even what the court did in the most sensitive moments of this country in the prize cases of assessing the legality of a naval blockade during the Civil War or the post 9-11 cases, a moment when this country had been attacked and was at a moment of crisis.

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And four times in four years,

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The Supreme Court said to the executive branch exactly what we're asking this court to say now, that when there is a clear legal duty, including one coming from a treaty that the United States is bound to, like it was in Hamdan,

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to the Geneva Conventions and here, the Genocide Conventions, the court has a role and a responsibility, a responsibility to assess executive conduct against binding law.

[00:06:25] Speaker 01:
Do you think it's enough just to identify a possible legal question?

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Is that all you need to claim to get around the political question doctrine?

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I think when you have a binding legal obligation, that puts you into the box of whether you're looking at discretionary executive decision-making or whether you're looking at a binding legal obligation.

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And Japan Welling makes very clear

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that it is those discretionary decisions, policy-making decisions, value judgments that the courts cannot and should not look at.

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Right.

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I mean, the court has said that, but I don't think they've said that just because you identify a legal question that that's enough to avoid the political question doctrine.

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I think respectfully, Your Honor, that in Sifatowsky, where the Court of Appeals, the D.C.

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Court of Appeals had looked and said, wow, we have a politically fraught issue here.

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The status of Jerusalem, political, we can't touch that.

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The Supreme Court looked and said, no, there is a violation alleged of a statute.

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And when you have a violation of a statute, of the constitution, of a treaty, it is in

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the purview of the judiciary.

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To follow up on that point, counsel, can you address Corey?

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Why doesn't that provide the answer in this particular case?

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Because there the plaintiffs were not allowed to sue

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Caterpillar, and we set the decision as to whether to grant military aid to Israel is a political decision, and that's inherently entangled with conducting foreign policy.

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How do you get around that?

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I can appreciate that at first review.

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Quarry v. Caterpillar, like it did for the district court, can give this court some pause, but there are at least four reasons why this case is different than Quarry v. Caterpillar.

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There, the US conduct was not directly at issue.

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There was no allegation in that case that the US conduct violated binding international law.

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The US conduct that was in the background of that case was exactly

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the discretionary kinds of policy decision-making.

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It was a generic foreign aid package, which the State Department, the Executive Branch, can do and does every day without judicial review.

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where it crosses a line and where the military support that is being given.

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And here, I want to be very clear, we are only challenging the military assistance being sent to Israel for use in furtherance of the genocide.

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So the military assistance being used in Gaza in bombing raids that are killing civilians.

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Well, let me push back on that, though.

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The relief that you're seeking.

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Articulate what that is because it seems that the relief you're seeking is extraordinary and is different than the type of relief that from some of the cases that you're citing in your brief.

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So tell me exactly what if look at look at what your complaint says and the relief you're asking for and then tell me why that doesn't in and of itself distinguish you from some of those cases.

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Your Honor, we are seeking two forms of relief.

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And as Center for Biological Diversity v. Mattis requires, this court should assess separately our claim for a declaratory relief and our claim for injunctive relief and a declaratory judgment that defendants are aiding and abetting or otherwise failing to prevent genocide.

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in violation of the law is a legal determination.

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And that is one, again, that we believe the court could make.

[00:10:17] Speaker 01:
And it would then be up to the- By that logic, you could turn any claim into a legal claim.

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Any claim can be recast as a declaratory judgment claim.

[00:10:25] Speaker 01:
And that would then have the courts essentially running the United States military.

[00:10:31] Speaker 04:
Well, there are cases, Your Honor, where the courts have issued injunctions, many cases against executive conduct, where there is overreach.

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And I would point, Your Honors, to Sierra Club, where the Trump administration took money that was allocated for one function and moved it over for another function.

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And the court there said, we're not making a value judgment about the movement of that funding.

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What we are saying is the movement of that funding violates a appropriation statute.

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So I do think it is the job of the judiciary under Article 3, as mandated since the time of Marbury, to actually put

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a check on executive conduct and to serve as a review to make sure that any course of conduct complies with the law.

[00:11:25] Speaker 01:
And I want to just- By this logic, could somebody file a competing lawsuit that alleges that the United States support providing aid to Gaza itself violates some international law or norm?

[00:11:38] Speaker 01:
And that would be justiciable as well?

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that, Your Honor, if that were a well-pled case, supported as our case is by an 85-page complaint with expert declarations from Holocaust and genocide scholars who have- But don't you think it would be a little bit problematic, to say the least, to have the courts trying to sift through competing claims about what role the United States should play in an ongoing military conflict?

[00:12:07] Speaker 04:
Your Honor, I want to just distinguish one point here, and that's that our claims are actually claims of genocide.

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So we are not looking at claims of war crimes or whether or not the United States is supporting war crimes.

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We are looking at whether the United States is aiding and abetting complicit in genocide.

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So that has a different application than the Geneva Conventions, which could apply in times of war.

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only in the Genocide Convention in times of war or in times of peace.

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So here, reviewing executive conduct, whether it is aiding and abetting the specific intent to destroy and hold or impart a people, we do think that is one of the most serious obligations on the executive and it is the responsibility of the court

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to review that conduct against clearly established definitions of genocide, of complicity in genocide.

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This is a violation that has been recognized as actionable under the Alien Tort Statute.

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It has been codified in our criminal code.

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So there is no question that if the facts support a finding,

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And here we have both the duty to prevent, which is a serious risk of genocide, and we have complicity in genocide.

[00:13:28] Speaker 03:
Were there genocide allegations in cases like Corey and Altamimi as well?

[00:13:32] Speaker 04:
There were not allegations, I don't believe, in quarry of genocide.

[00:13:38] Speaker 04:
There were, and the El Tamimi case is very much on point with this one, Your Honor.

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In the El Tamimi case, the DC Court of Appeals did the kind of discerning

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analysis to decide whether or not the factual Claims fell in the box of something that should be reserved to the executive like the status of the Palestinian disputed territories it recognized that is a a recognition of sovereignty that is for the executive so in that case it found it it couldn't even decide the predicate for a war crimes case because it would be tied up with the nature of

[00:14:22] Speaker 04:
an occupation or not an occupation, versus what the DC court found in El Tamimi, genocide, a clear definition, judicially manageable standards, and a history of this crime being adjudicated in courts.

[00:14:38] Speaker 03:
So this is much- I think what's really significant in El Tamimi is that we did the exacting search of claim by claim, as you said, but

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There, the claim that the Israeli settlers were committing genocide were allowed to go forward.

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because the plaintiffs had waived any theory of liability that's based on the IDF's conduct.

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So the DC Circuit said that, well, that claim is not a political question because in answering that claim, we wouldn't have to really directly contradict any foreign policy choices.

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So how do we address your claims without directly condemning the foreign policy choices of the political branches?

[00:15:24] Speaker 04:
Your Honor, as an initial matter, I do not think that aiding and abetting genocide, which is the conduct that the executive branch is alleged to be committing, the defendants in this case are alleged to be committing, can ever be a policy choice.

[00:15:40] Speaker 04:
It violates the law.

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It exceeds their constitutional powers.

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So that is a different predicate to the case of El Tamimi as a threshold matter.

[00:15:49] Speaker 02:
If you look at what Judge White, excuse me, if you look at what Judge White talked about, it would seem that he did express certainly sympathy for your situation and seemed to feel that there was some factual support for what you were alleging, yet he ultimately fell down on the side of that this was non-judicial.

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What do we make of, did he make findings that somehow survive his determination of that this is a political question?

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What do we do about that?

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We had an evidentiary hearing in that case in support of the preliminary injunction, and he heard testimony from plaintiffs and from an expert.

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So he did make some initial findings, but he dismissed the case.

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What I would say is Judge White's decision did not engage at all with the Zivotovsky framework, with cases like El Tamimi, with cases like El Shamari.

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and it adopted wholesale the analysis in Quarry, which the last points I was going to make about that case, that case, like the Saldana case, predate Zivotovsky, and they reflect a more accepting view

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of the executive that any time the magic words foreign policy are said, the case becomes a political question.

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The Supreme Court made very clear in Zivotovsky that is not the case.

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A politically fraught case does not mean a political question.

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And so I think here, I would urge the court to engage with that more searching inquiry.

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Look at the enemy combatant cases, which Judge White also did not engage with.

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Youngstown, which made very clear that there is no plenary power for the executive whenever foreign policy is invoked.

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What we've seen is time and time and time again from the founding to the present.

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The Supreme Court has made clear the political question doctrine is narrow, and the executive must be bound by law.

[00:18:08] Speaker 01:
I don't think there's any case that's enjoying the president from doing some of the things that you're asking us to do, right, to halt the military assistance, to change the financing, to change the weapons, to do things in the United Nations.

[00:18:22] Speaker 01:
I mean, this is not really comparable in any way to Zbitovsky, to my mind.

[00:18:26] Speaker 04:
Your Honor, what I would focus on at this point in terms of relief that we're seeking is really to stop sending weapons that are being used in Gaza in furtherance of a genocide, because that conduct constitutes aiding and abetting.

[00:18:42] Speaker 04:
It is practical assistance that has a substantial effect on the commission of genocide.

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And while there may not be a case on all fours with this case, and respectfully, thankfully, there haven't been allegations that the United States

[00:18:56] Speaker 04:
the president of the United States is aiding and abetting genocide before.

[00:19:00] Speaker 04:
There are cases that show at times of war, I go back to the founding era cases of Little v. Barame, and particularly the four enemy combatant cases at a moment when the executive branch was

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was requiring in its mind all the powers that it could to stave off a terrorist attack.

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And so it said we need military commissions.

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We need to be able to hold people

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without charge and not have the involvement of the courts.

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And the Supreme Court made very clear that even in moments of crisis like that, the executive is still bound by law.

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And I would note that in Hamdan, while finding that the military commissions as constructed by the executive exceeded what the Geneva Conventions required,

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I did promise to help you manage your time.

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I will stop as I answer this question.

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The court sent it back, and it said fix the military commissions.

[00:20:02] Speaker 04:
So I think there are ways, and we would defer in large part to the expertise of the State Department who can trace where the weapons are going, how they're being used, and I think the expert declaration of Josh Paul

[00:20:14] Speaker 04:
A former State Department official is very instructive in terms of what the State Department could be doing to make this a very manageable remedy.

[00:20:23] Speaker 04:
Thank you.

[00:20:24] Speaker 04:
Thank you, Council.

[00:20:56] Speaker 03:
Good morning.

[00:20:57] Speaker 00:
Sorry, did I?

[00:20:58] Speaker 00:
Am I on?

[00:20:58] Speaker 00:
Okay, good morning.

[00:20:59] Speaker 00:
May it please the court, Max Obali, for the government?

[00:21:02] Speaker 00:
Since Hamas attacked Israel on October 7th, the United States has worked to ensure Israel's long-term security, ameliorate the humanitarian crisis in Gaza, secure the release of all hostages, prevent the conflict with Hamas from escalating into a wider regional war, and obtain a just and durable peace.

[00:21:20] Speaker 00:
A court cannot second guess how the executive branch pursues these goals, but that is what plaintiffs seek.

[00:21:26] Speaker 00:
Plaintiffs face two claims, complicity in and failure to prevent genocide.

[00:21:30] Speaker 00:
And one of those claims focuses on acts and the other on omissions, but they rely on the same theory, that the president, the secretary of state, and the secretary of defense were wrong to offer unconditional support to Israel and to reject calls for a ceasefire.

[00:21:43] Speaker 00:
The acts and omissions that plaintiffs point to in order to prove those claims lie at the core of the executive branch's discretion to conduct foreign policy.

[00:21:51] Speaker 00:
So to establish their claims, plaintiffs alleged that the defendants voiced support for Israel's security and right to self-defense, including as early as October 7th, failed to call for a ceasefire before Israel had degraded Hamas's ability to launch another attack,

[00:22:05] Speaker 00:
vetoed UN ceasefire resolutions, refused to impose conditions on military aid, deployed military resources to the region, and allegedly collected and shared battlefield intelligence.

[00:22:17] Speaker 00:
Under this circuit's binding precedent, those sorts of questions are not suitable for judicial resolution.

[00:22:22] Speaker 02:
Well, would there be anything here?

[00:22:25] Speaker 02:
Mr. Baldy, I think Judge Bress sort of alleged to, well, what if the Israelis had brought a similar suit?

[00:22:33] Speaker 02:
Let's say, hypothetically, the suit had been brought by supporters of Israel seeking an injunction requiring the president to send more aid and support to Israel.

[00:22:45] Speaker 02:
Would the outcome be the same in that case?

[00:22:47] Speaker 02:
Yes, Your Honor.

[00:22:48] Speaker 02:
In this case?

[00:22:49] Speaker 00:
Yes, Your Honor, the outcome would be the same.

[00:22:51] Speaker 00:
The decision about whether to grant military aid to a foreign nation is a political decision.

[00:22:56] Speaker 00:
It's inherently entangled with the conduct of foreign relations.

[00:22:59] Speaker 00:
That's what this court held inquiry.

[00:23:01] Speaker 00:
And whether it's more or less aid, whether it's conditional aid or unconditional aid, a court can't make those decisions.

[00:23:08] Speaker 00:
Those are decisions committed to the executive branch.

[00:23:10] Speaker 00:
I would point out as well that Corey survives Zipotovsky, I think this case would come out the same way under Zipotovsky, but Corey survives Zipotovsky and the way we know that is that Saldana, which was argued and decided after Zipotovsky, Zipotovsky came down in March of 2012, Saldana was argued in June of 2012 and decided in December 2012, Zipotovsky won.

[00:23:31] Speaker 00:
Saldana expressly embraced the holding of Corey and it applied it to that case and so that continues to be binding law of the circuit and I don't think there's there's any way around that and the types of allegations that plaintiffs have made require court to second-guess that.

[00:23:49] Speaker 00:
The core of their claim about supplying weapons and military aid, at least as pleaded in the complaint, is that the United States has supplied these things without conditions.

[00:24:01] Speaker 00:
The idea that a court could decide what conditions are appropriate in negotiations over supplying or delivering military aid to an ally is just beyond judicial competence.

[00:24:10] Speaker 00:
I'd also note that

[00:24:11] Speaker 00:
In the hearing before the district court, this is in the volume two of the record at page 43, the plaintiffs conceded that the United States could supply some weapons to Israel.

[00:24:21] Speaker 00:
They specifically referenced Iron Dome, but not all weapons and under all conditions.

[00:24:26] Speaker 00:
And what they suggested was that the district court could hold some sort of hearing where it would, I guess, make lists of prohibited and permissible weapons and issue an injunction deciding what aid could be delivered.

[00:24:37] Speaker 00:
And that's just, that's not something that the court is capable of doing.

[00:24:41] Speaker 03:
That would involve a lot of discovery below.

[00:24:43] Speaker 03:
Let me ask you this, counsel, because I thought there was an alternative argument made.

[00:24:49] Speaker 03:
There's the scope of injunctive relief, which is pretty extraordinarily broad, but there's also declaratory relief that's being sought.

[00:24:57] Speaker 03:
Under the government's position, does that mean that even in instances where there's a clear violations of the genocide convention, whether it's, I'm talking hypothetically, whether it's done by the US government directly or by an ally of the US government, that would entirely escape judicial review if we conclude that those questions are intimately bound with the conduct of foreign affairs?

[00:25:24] Speaker 00:
I don't think it's quite that broad, Your Honor.

[00:25:26] Speaker 00:
I think one thing that we agree with plaintiffs on is that the political question doctrine requires sort of a discerning, context-specific, case-by-case, claim-by-claim analysis.

[00:25:35] Speaker 00:
And the question that the court would have to ask is, are these allegations, can we resolve these claims without looking at sort of

[00:25:46] Speaker 00:
core policy decisions committed to the political branches.

[00:25:50] Speaker 03:
And that's really my question.

[00:25:52] Speaker 03:
Even assuming that we do a discriminating analysis on a case-by-case basis, if an instance where legal duty really clashes with policy choices made by the political branches, the court is out of it.

[00:26:08] Speaker 03:
We have no role in that situation.

[00:26:10] Speaker 00:
Is that your position?

[00:26:11] Speaker 00:
Our position is that even a statutory claim can present a political question if resolving the claim requires the court to make an integral policy choice that's embedded in that question.

[00:26:22] Speaker 00:
The D.C.

[00:26:23] Speaker 00:
Circuit in Al-Tamimi said exactly that in footnote six of that decision.

[00:26:27] Speaker 00:
In al-Shammari, the Fourth Circuit, while using a very broad language in a case that involved a military contractor, not the government,

[00:26:35] Speaker 00:
said essentially the same thing, that where there's an integral policy choice involved, that's not a question of judicial resolution.

[00:26:43] Speaker 00:
And I would distinguish it from a case like Zabotovsky, where the questions that the court were looking at was a structural separation of powers question, and it looked to text and structure and history and traditional tools of

[00:26:56] Speaker 00:
of the judicial craft in making a decision.

[00:27:01] Speaker 02:
Whereas here- Well, but under your view, Mr. Baldy, would there ever be a circumstance in which a court could enjoin the executive branch from supporting alleged genocide in another country?

[00:27:13] Speaker 02:
Would there ever be such a circumstance or-

[00:27:17] Speaker 00:
I have not been able to think of one, but I think this court can resolve the case on that grounds, or it can do it without reaching a categorical holding just based on the allegations here.

[00:27:28] Speaker 02:
And the complaint, and sort of the acts... Well, but when you say that, if there could never be, that makes your position more absolute.

[00:27:38] Speaker 00:
Your Honor, I have not been able to come up with one.

[00:27:41] Speaker 00:
But I recognize that it requires a discerning analysis.

[00:27:46] Speaker 00:
And I don't think that a question that broad is presented by this case.

[00:27:51] Speaker 02:
Well, I think it would seem to me that your friend on the other side relies heavily on a duty versus discretion distinction.

[00:28:04] Speaker 02:
Do you dispute as a general matter the existence of duty versus discretion, distinction in applying the political question doctrine?

[00:28:14] Speaker 00:
I think largely that framework

[00:28:16] Speaker 00:
makes sense, but the question here is not just is there a legal duty, but what questions does the court have to answer to evaluate it?

[00:28:25] Speaker 00:
How does the court look at what the duty is?

[00:28:28] Speaker 00:
How is this duty fulfilled?

[00:28:32] Speaker 00:
If I can point to some of the allegations in the complaint, because I think they're quite extraordinary, the sort of things that plaintiffs like to do is ask no missions supporting their claims.

[00:28:42] Speaker 00:
Paragraph 192, the Pentagon announced the deployment of a second carrier strike group to the region.

[00:28:48] Speaker 00:
Paragraph 206, the United States exercised its veto power in the UN Security Council to block calls for a ceasefire.

[00:28:54] Speaker 00:
These are the types of culpable acts and omissions they're talking about, and they fall well within the heart of executive discretion to conduct the country's foreign policy.

[00:29:06] Speaker 00:
I'm happy to answer any other questions.

[00:29:07] Speaker 02:
The district court view of political question doctrine, under the district court's view, would executive officials essentially be immune from suits alleging a violation of any international law because such suits would always implicate foreign policy judgments?

[00:29:28] Speaker 00:
No, Your Honor, and I don't think that that is, I think that's broader than what the district court held.

[00:29:34] Speaker 00:
I think the best reading of the district court's opinion is that

[00:29:39] Speaker 00:
in the parts of the opinion where it sort of applied the doctrine to this case.

[00:29:43] Speaker 00:
It said, this case is squarely controlled by Corey and we agree with that.

[00:29:47] Speaker 02:
I think it's possible that you could have- It almost seemed though, but when the district court was analyzing it and made certain findings that you were gonna lose, but then you didn't lose.

[00:29:59] Speaker 00:
Your Honor, I don't believe the district court made anything that could be called a finding.

[00:30:02] Speaker 00:
I think when a court lacks jurisdiction, all it has the power to do is say so and dismiss the case.

[00:30:07] Speaker 00:
There's some dicta in that opinion, but I don't think that those are findings.

[00:30:11] Speaker 02:
Well, if hypothetically, I'm saying hypothetically because we haven't conferenced or anything, but if hypothetically we were to find that it is a political question and dismiss it, what effect going forward, what the district court did make some fairly specific comments, what effect does that have in your view?

[00:30:33] Speaker 02:
Does it live on?

[00:30:36] Speaker 00:
You know, Your Honor, I think you review judgments and not opinions, and so the correct disposition is to affirm.

[00:30:45] Speaker 00:
If the Court thinks that those were comments that the District Court didn't have the power to make or didn't have a basis to make, it can certainly say so, but the disposition would be to affirm.

[00:31:00] Speaker 00:
I'm happy to answer any other questions, but otherwise, the district court lacks jurisdiction and we'd ask that the judgment be affirmed.

[00:31:07] Speaker 00:
Thank you.

[00:31:10] Speaker 03:
Judge Callahan, do you have any additional questions?

[00:31:12] Speaker 03:
Thank you for your argument.

[00:31:13] Speaker 03:
I do not thank you.

[00:31:15] Speaker 03:
Let's put three minutes on the clock.

[00:31:23] Speaker 04:
Thank you, Your Honor.

[00:31:24] Speaker 04:
Just a couple of quick points in rebuttal.

[00:31:28] Speaker 04:
I just want to ground where our duty discretion distinction comes from.

[00:31:35] Speaker 04:
It comes from the Supreme Court in Marbury versus Madison.

[00:31:40] Speaker 04:
It was in that case that Justice Marshall made clear that the executive possesses a constant

[00:31:47] Speaker 04:
that the executive can possess legal discretion, but when it comes to a legal duty, the executive is amenable to the laws for his conduct.

[00:32:01] Speaker 04:
And what we are hearing from the government is that there is no constraint in law and that simply cannot be.

[00:32:09] Speaker 04:
And Supreme Court precedent does not support such a broad

[00:32:15] Speaker 04:
finding, and I think it is a profoundly dangerous finding for a court to make, that the executive is not bound by any law, be it a treaty, be it a statute, or be it the Constitution.

[00:32:29] Speaker 04:
It takes us back to a place that Justice Jackson made very clear the United States rejected when it said no king in this country.

[00:32:40] Speaker 04:
It made three co-equal branches of government

[00:32:44] Speaker 04:
And it said that the judiciary should serve as a check.

[00:32:47] Speaker 04:
And we ask the judiciary to do that today, because since this case has been filed, the death toll in Gaza has gone from 11,000 to over 40,000.

[00:32:59] Speaker 04:
And it is not simply the failure to put in place a ceasefire resolution that has caused that.

[00:33:09] Speaker 04:
Something we didn't hear the government engage with at all.

[00:33:12] Speaker 04:
is the weapons that it has sent, the more than million pieces of ammunition that have been used in Gaza, the tens of thousands of missile kits that have been sent, including the 250 and 2,000 pound bombs just sent last month.

[00:33:31] Speaker 01:
So are you saying that the United States should not be allowed to send any military aid to Israel?

[00:33:36] Speaker 01:
No, Your Honor.

[00:33:37] Speaker 01:
That is not our position.

[00:33:39] Speaker 01:
Who will decide this then?

[00:33:40] Speaker 04:
I think there could be a discriminating analysis of what the weapons are and where they're being used.

[00:33:46] Speaker 04:
And this is something we, again, point.

[00:33:51] Speaker 01:
Who do you want to make that judgment?

[00:33:53] Speaker 01:
Do you want the court to make that judgment?

[00:33:54] Speaker 04:
We believe that the State Department and the Defense Department can do that at the front line.

[00:34:00] Speaker 04:
The State Department issued a report last month on where US weapons are being used and how they're being used.

[00:34:08] Speaker 04:
And it made the conclusion that it is reasonable to assess that weapons sent by the United States being used in Gaza have been used in violation of international law.

[00:34:21] Speaker 04:
Making that finding wasn't enough for the State Department to say we will not continue to send weapons for use in Gaza.

[00:34:28] Speaker 04:
In other contexts, like in the Ukraine context, the State Department has put geographical limitations on where U.S.

[00:34:35] Speaker 04:
weapons can be used.

[00:34:37] Speaker 04:
It has put end-use limitations as a regular basis when it gives military aid.

[00:34:44] Speaker 04:
So this is not a case about the Iron Dome.

[00:34:46] Speaker 04:
This is a case about weapons that are being used to further a genocide in Gaza.

[00:34:51] Speaker 03:
And we are- Well, Council, what you want us to do is to find that there is jurisdiction in the case and send it back to the district court, correct?

[00:34:59] Speaker 03:
That's the bottom line.

[00:35:01] Speaker 03:
And then would you then be entitled to have discovery from the-

[00:35:04] Speaker 03:
executive branch on how these decisions are being made, where the weapons are being used, and to delve into all of the considerations that led to the policy choices by the U.S.

[00:35:17] Speaker 03:
government.

[00:35:17] Speaker 04:
No, Your Honor, I don't think we would need such extensive discovery.

[00:35:22] Speaker 03:
What discovery would you be entitled to?

[00:35:25] Speaker 04:
There is a lot of information in the public domain because of reporting that the State Department and the Defense Department have to do about weapons deliveries.

[00:35:34] Speaker 04:
So there are certain weapons that it is clear from its own investigations, from UN investigations, which weapons are being used where.

[00:35:44] Speaker 04:
It's the kind of discovery that might be akin to what happens in a persecution claim for a removal proceeding or a claim about more likely than not that an immigrant would be... At the end of the day, if your clients disagree with the United States government on which weapons are permissible, you're asking a court to tell everybody what the answer to that question is.

[00:36:06] Speaker 04:
Your honor, there could be questions that come up down the line, as they're due in every case.

[00:36:11] Speaker 04:
I think at this stage where we are at is that the vast majority of weapons being used to further the genocide are coming from the United States.

[00:36:19] Speaker 04:
So stopping

[00:36:22] Speaker 04:
at least the flow that we have at this point.

[00:36:24] Speaker 04:
And where there could be discussions or debates, there may have to be some due respect given to the Department of Defense or the Department of State.

[00:36:34] Speaker 04:
We are not at that point.

[00:36:36] Speaker 04:
And I would just remind the court we're at the motion to dismiss.

[00:36:39] Speaker 04:
So there could be

[00:36:41] Speaker 04:
Some discovery, but again, I think there is a lot of information that we already have and some baseline orders that could help to alleviate a genocide.

[00:36:52] Speaker 03:
All right.

[00:36:52] Speaker 03:
Thank you very much, counsel, for both sides for your argument today.

[00:36:56] Speaker 03:
It's been very helpful.

[00:36:57] Speaker 03:
The matter is submitted.

[00:36:59] Speaker 03:
We'll be in recess.