Turkiye Halk Bankasi A.S. v. United States (21-1450)

argument 21-1450

Turkiye Halk Bankasi A.S. v. United States

Supreme Court of the United States 1h 35m 8 speakers 8 chapters transcribed 9 days ago official recording ↗

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What is the central dispute over jurisdiction in the Turkiye Halk Bankası case?

John G. Roberts 0:01

We will hear argument next in case twenty one fourteen fifty, Turkeyah Hulk Bugasi versus United States. Ms. Black.

Unknown 0:10

Mr Chief Justice, and may it please the Court. Schooner Exchange held that general laws describing Admiralty jurisdiction do not reach foreign sovereigns. The reasons for that clear statement rule notice and equality among independent nations apply with greater force here. It is outlandish to think that Section thirty two thirty one authorizes federal courts to convict Spain. The US does not dispute that criminal trials against sovereigns were unthinkable in seventeen eighty nine, would violate international law today, are unprecedented anywhere, and would risk retaliation. But all the same is true for sovereign instrumentalities, which by definition are sovereign. Schooner exchange, after all, is an instrumentality case, a ship.

Unknown 0:53

And the FSIA defines foreign states to include instrumentalities. US instrumentalities, like the Export Import Bank, are sovereign. The FSIA independently bars criminal jurisdiction. Section sixteen oh four provides that foreign states shall be immune from the jurisdiction of federal and state courts. Reading the word civil into that text would mean Congress created special guardrails in civil cases, but through sovereigns to the wolves in criminal cases. The executive applauds this result, arguing that it alone makes the common law of criminal immunity, but the executive does not make the law. And an immunity waivable by your prosecutor is no immunity at all. Plus, the government's commercial instrumentality rule contradicts every common law benchmark history, international practice, reciprocity, and the choice already made by Congress to define foreign states to include instrumentalities.

Unknown 1:46

Finally, Section sixteen oh five's commercial activities exception cannot apply in criminal cases. Section thirteen thirty grants jurisdiction for the exceptions in civil cases only. And a contrary reading produces two radically implausible and dangerous results. Foreign states themselves would be stripped of criminal immunity in commercial cases, and because Section sixteen oh five waives immunity in state courts, states could prosecute sovereigns and the executive would be powerless to stop it. I welcome questions.

Clarence Thomas 2:18

Uh Ms. Blatt, just so I can uh analytically could understand analytically uh your argument. Uh could you waive uh immunity uh in in district court? And would after the waiver would they have jurisdiction?

Unknown 2:35

No, under subject matter jurisdiction is not waivable.

Clarence Thomas 2:39

Is there another instance in which we have seemingly conflated subject matter jurisdiction and immunity?

Unknown 2:48

I mean I don't think so. Schooner Exchange is a jurisdictional holding. This court has said in many cases, although the holding goes to jurisdiction, it later got developed in the civil context as absolute immunity until the restrictive immunity developed. But I mean the Foreign Sovereign Immunities Act also on its face says jurisdiction um they shall be immune from jurisdiction in uh federal and state courts. So I mean we have two s independent arguments. The first is just a broad argument saying there's no jurisdiction under uh eighteen USC thirty two thirty one for foreign sovereigns. And if this court rejects that, we have another argument saying, well, the FSIA on its face in section sixteen oh four would cancel out any criminal jurisdiction that might otherwise exist under Title eighteen.

Clarence Thomas 3:39

I don't see how the um The uh the difficulty I'm having is understanding how the immunity claim is uh uh woven into subject matter jurisdiction.

Unknown 3:51

Sure. Our immunity claim is if There is subject matter jurisdiction. and the Foreign Sovereign Immunities Act doesn't apply, we would say there's still a common law immunity because there just never has been a uh criminal prosecution of a sovereign or its instrumentality anywhere. And the only argument the executive has is that it has the unilateral right to decide if there is criminal immunity. But just like um You know, just foreign sovereign immunity is a is a well developed uh common law uh ground that courts develop, which is one of the reasons we say that the court has to decide that question.