Case 1:18-cv-01117-CKK Document 90 Filed 06/04/19 Page 1 of 82

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KASIM KURD, et al.,
Plaintiffs,
v.
THE REPUBLIC OF TURKEY, et al.,
Defendants.

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Case No. 1:18-CV-01117-CKK

DEFENDANT REPUBLIC OF TURKEY’S MOTION TO DISMISS
Defendant Republic of Turkey (“Turkey”), by counsel and pursuant to Federal Rule of
Civil Procedure 12(b)(1), hereby moves the Court to dismiss the Amended Complaint for lack of
subject matter jurisdiction.1

In support of its Motion, Turkey refers the Court to the

Memorandum and its supporting exhibits, filed herewith.

1

Pursuant to Fed. R. Civ. P. 12(h), Turkey expressly preserves and does not waive its right to
assert additional defenses under Fed. R. Civ. P. 12(b)(6) and 12(c).

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Date: June 4, 2019

Respectfully submitted

/s/ Cathy A. Hinger
Cathy A. Hinger (DC Bar No. 473697)
Victoria A. Bruno (DC Bar No. 484197)
Mark E. Schamel (DC Bar No. 463965)
WOMBLE BOND DICKINSON (US) LLP
1200 Nineteenth Street, NW
Suite 500
Washington, DC 20036
Tel: 202-857-4489
Fax: 202-261-0029
cathy.hinger@wbd-us.com
victoria.bruno@wbd-us.com
mark.schamel@wbd-us.com

/s/ David S. Saltzman
David S. Saltzman (DC Bar No. 436201)
Saltzman & Evinch, PLLC
1050 K Street, NW
Suite 1150
Washington, DC 20001
Tel: 202-372-0092
Fax: 202-318-0892
dsaltzman@saltzmanevinch.com
Counsel for Defendant Republic of Turkey

Counsel for Defendant Republic of Turkey

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KASIM KURD, et al.,
Plaintiffs,
v.
THE REPUBLIC OF TURKEY, et al.,
Defendants.

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Case No. 1:18-CV-01117-CKK

MEMORANDUM IN SUPPORT OF
DEFENDANT REPUBLIC OF TURKEY’S MOTION TO DISMISS

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TABLE OF CONTENTS
I.

INTRODUCTION AND SUMMARY OF THE ARGUMENT ............................................ 1

II. STATEMENT OF FACTS ..................................................................................................... 5
A. FACTS AS ALLEGED BY THE PLEADINGS ............................................................ 5
1.

The Incident At Sheridan Circle As Alleged By Plaintiffs ................................... 6

2.

Summary Of Legal Claims Alleged By The Amended Complaint ....................... 7

B. COUNTERSTATEMENT OF FACTS IN SUPPORT OF
TURKEY’S JURISDICTIONAL DEFENSES .............................................................. 8
1. Turkey Is Entitled To Present A Counterstatement Of Facts And
Evidence Outside Of The Pleadings In Support Of Its Jurisdictional
Defenses ................................................................................................................ 8
2. The Challenge Of Securing Turkish Leaders ......................................................... 9
3. The U.S. Invited President Erdogan To Washington, D.C. ................................. 11
4. President Erdogan Arrived On May 15, 2017 Under Tight Security ................... 12
5. The Lafayette Park Demonstrations: U.S. Security Officers Intervened
To Separate Rival Groups ..................................................................................... 13
a. The Anti-Turkey Group Displayed Support For A
Foreign Terrorist Organization ................................................................... 14
b. There Were Likely Military-Trained Men In The Anti-Turkey
Group Who Had Fought With PKK Units .................................................. 16
c. U.S. Officers Acted Decisively To Defuse A Potentially Violent
Situation In Lafayette Park .......................................................................... 18
6.

MPD “Escorted” The Anti-Turkey Group To Sheridan Circle ........................... 19

7.

U.S. Security Officers Placed The Rival Groups Within 35 Feet Of
Each Other At Sheridan Circle, Leaving Them Separated By Only
Two Lanes Of Traffic ......................................................................................... 19

8.

The First Altercation Broke Out On Massachusetts Avenue .............................. 21

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9.

After The First Altercation, Turkish Security Officers And
The Turkish Ambassador Implored U.S. Security Officers To Move The
Anti-Turkey Group Back .................................................................................... 23

10.

President Erdogan Arrived And Was Held In His Vehicle By
U.S. Secret Service And Turkish Security Pending The Restoration
Of Order ............................................................................................................ 24

11.

Turkish Security Officers, Perceiving A Threat To Their Protectees,
Took Action To Push Back The Anti-Turkey Group ........................................ 25

12.

The Aftermath ................................................................................................... 25

13. Expert Analysis Of Former U.S. Secret Service Special Agent In
Charge of Presidential Protective Division, Michael White, Shows That
There Was A Security Void At Sheridan Circle That Presidential
Protective Services Are Trained To Address, And Were,
Using Common Security Tactics ....................................................................... 26
14. Plaintiffs’ Contention That The Turkish Government Has A
Policy Of Discriminating Against Kurds Is Grossly Overbroad And
Misinformed ....................................................................................................... 29
III.

LEGAL STANDARD FOR RULE 12(b)(1) MOTION TO DISMISS .............................. 30

IV.

ARGUMENT ..................................................................................................................... 30
A. U.S. LAW MANDATES THE PROTECTION OF FOREIGN
DIGNITARIES INVITED TO THE U.S. ...................................................................... 30
1. By Treaty, The U.S. Is Required To Criminalize Threats Of Attacks
On, And Prevent Attacks On, Internationally Protected Persons (“IPPs”) .......... 30
2.

18 U.S.C. §§ 112 And 878 Guide Law Enforcement Officers To
Provide Foreign Officials, Official Guests, And IPPs With A 100-Foot
Zone Of Protection From Threats Or Harassment, Which Was Eminently
Achievable At Sheridan Circle ........................................................................... 31

3. U.S. Law Enforcement At Sheridan Circle Ignored The Law
Applicable To Dignitaries .................................................................................... 33
B. THE FOREIGN SOVEREIGN IMMUNITES ACT DEPRIVES THIS
COURT OF JURISDICTION OVER PLAINTIFFS’ CLAIMS ................................... 35
1.

Overview Of The FSIA And The Exceptions Claimed By Plaintiffs ................. 35
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2. The Tortious Acts Exception To Sovereign Immunity,
28 U.S.C. § 1605(a)(5), Does Not Apply Because Turkey And
Its Agents Were Performing A Discretionary Function ....................................... 36
a. The Discretionary Function Rule, 28 U.S.C. § 1605(a)(5)(A),
Is An Exception To The Tortious Acts Exception That Protects
Governments From Suits Arising Out Of Actions Based On
Considerations Of Public Policy ................................................................. 36
b. Turkey’s Conduct During The Sheridan Circle Incident
Satisfies The D.C. Circuit’s Two-Prong Test For The Discretionary
Function Rule .............................................................................................. 38
i. Turkey Satisfies The First Prong Because Its Employees
Had Discretion To Act ....................................................................... 38
ii. Turkey Satisfies The Second Prong Because Its Employees’
Acts Were Grounded In Public Policy ............................................... 42
c. No Prior Cases Have Evaluated Whether Foreign Security Agents
Taking Protective Measures To Remove Perceived Imminent Threats
To A Head Of State By Apparent Associates Of An FTO Is A
Discretionary Function ................................................................................ 46
C. THE POLITICAL QUESTION DOCTRINE FORBIDS THE COURT FROM
MAKING FINDINGS ABOUT TURKEY’S NATIONAL POLICIES
AND INTERNATIONAL GOALS ............................................................................... 50
1. Factors 1 And 6: Constitutional Commitment To A
Coordinate Political Department, And Potentiality Of
Embarrassment From Multifarious Pronouncements ........................................... 52
2.

Factor 2: Lack Of Judicially Discoverable And Manageable Standards ............. 54

3.

Factors 3 and 4: The Prudential Factors .............................................................. 58

4.

The D.C. Circuit’s Functional Approach To The Political Question Doctrine ... 58

D. THE DOCTRINE OF INTERNATIONAL COMITY FAVORS
DISMISSAL OF PLAINTIFFS’ CLAIMS .................................................................. 60
1.

Assassination Attempts Are A Constant Reality For A Traveling President ...... 62
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2.

U.S. Secret Service Demands Heavy Security Cooperation From
Its Host State ....................................................................................................... 62

3.

Turkish Security Officers Have Died Protecting U.S. Missions ......................... 64

4.

Security For Turkey’s Head Of State At Sheridan Circle ................................... 65

E. 28 U.S.C. § 1350 DOES NOT CONFER SUBJECT MATTER JURISDICTION ...... 67
V.

CONCLUSION ................................................................................................................... 70

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TABLE OF CASES AND AUTHORITIES
Cases
Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682
(1976) ........................................................................................................................................ 35
Allen v. United States, 816 F.2d 1417 (10th Cir. 1987) .......................................................... 43, 44
* Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir. 2005) ....................................................... 51, 55
Al-Tamimi v. Adelson, 916 F.3d 1 (D.C. Cir. 2019) ......................................................... 53, 55, 58
American Federation of State, Country, Mun. Employees Local
2401 v. District of Columbia, 796 F. Supp. 2d 136 (D.D.C.
2011) ......................................................................................................................................... 60
American Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003)....................................................... 52, 53
Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428
(1989) .................................................................................................................................. 67, 68
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................... 60
Azima v. RAK Investment Authority, 305 F. Supp. 3d 149 (D.D.C.
2018) ......................................................................................................................................... 30
* Baker v. Carr, 369 U.S. 186 (1962) ............................................................................... 52, 58, 59
Belhas v. Ya’Alon, 466 F. Supp. 2d 127 (D.D.C. 2006) ................................................................. 9
Berkovitz v. United States, 486 U.S. 531 (1988) .................................................................... 38, 39
* bin Ali Jaber v. United States, 861 F.3d 241 (D.C. Cir. 2017) ................................ 52, 54, 58, 59
Boos v. Barry, 485 U.S. 312 (1988) .............................................................................................. 33
Briggs v. Goodwin, 569 F.2d 10 (D.C. Cir. 1977) ........................................................................ 49
CISPES (Comm. in Solidarity with People of El Salvador) v. F.B.I.,
770 F.2d 468 (5th Cir. 1985) ........................................................................................ 32, 33, 34
Dalehite v. United States, 346 U.S. 15 (1953) ........................................................................ 37, 49
Deuser v. Vecera, 139 F.3d 1190 (8th Cir. 1998) ......................................................................... 39
Doe I v. State of Israel, 400 F. Supp. 2d 86 (D.D.C. 2005) .......................................................... 56

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Doe v. Federal Democratic Republic of Ethiopia, 189 F. Supp. 3d
6 (D.D.C. 2016) ........................................................................................................................ 48
El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836 (D.C.
Cir. 2010) ...................................................................................................................... 55, 58, 69
Ex parte Republic of Peru, 318 U.S. 578 (1943) .......................................................................... 36
Feldman v. Fed. Deposit Ins. Corp., 879 F.3d 347 (D.C. Cir. 2018) ........................................... 30
Grayned v. City of Rockford, 408 U.S. 104 (1972)....................................................................... 33
Haygan v. United States, 627 F. Supp. 749 (D.D.C. 1986) .......................................................... 40
Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175
(D.C. Cir. 2013) ........................................................................................................................ 30
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ............................................................ 57
Hwang Geum Joo v. Japan, 332 F.3d 679 (D.C. Cir. 2003) ......................................................... 68
Japan Whaling Assoc. v. Am. Cetacean Society, 478 U.S. 221
(1986) .................................................................................................................................. 55, 58
Kiobel v. Royal Dutch Petro. Co., 569 U.S. 108 (2013) ............................................................... 67
Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980) .................................................... 46
Long v. United States, 119 F.2d 717 (4th Cir. 1952) .................................................................... 32
* MacArthur Area Citizens Ass’n v. Republic of Peru, 809 F.2d
918 (1987) ......................................................................................................... 35, 37, 46, 47, 50
* Macharia v. United States, 238 F. Supp. 2d 13 (D.D.C. 2002) ......................... 39, 42, 43, 45, 46
* Macharia v. United States, 334 F.3d 61 (D.C. Cir. 2003) ....................................... 38, 39, 40, 42
Martin v. D.C. Metro. Police Dep’t, 812 F.2d 1425 (D.C. Cir.
1987) ......................................................................................................................................... 49
McMahon v. United States, 342 U.S. 25 (1951) ........................................................................... 35
Miango v. Democratic Republic of Congo, 288 F. Supp. 3d 117
(D.D.C. 2018) ..................................................................................................................... 48, 49
Mich. Cmty. Servs., Inc. v. NLRB, 309 F.3d 348 (6th Cir. 2002).................................................. 60

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MMA Consultants 1, Inc. v. Republic of Peru, 245 F. Supp. 3d 486
(S.D.N.Y. 2017) .......................................................................................................................... 8
Mohammadi v. Islamic Republic of Iran, 947 F. Supp. 2d 48
(D.D.C. 2013) ........................................................................................................................... 48
Monarch Ins. Co. of Ohio v. District of Columbia, 353 F. Supp.
1249 (D.D.C. 1973) .................................................................................................................. 44
Nixon v. United States, 506 U.S. 224 (1993) ................................................................................ 55
Oetjen v. Central Leather Co., 246 U.S. 297 (1918) .............................................................. 60, 61
Olaniyi v. District of Columbia, 763 F. Supp. 2d 70 (D.D.C. 2011) ...................................... 39, 44
Olsen by Sheldon v. Gov’t of Mexico, 729 F.2d 641 (9th Cir. 1984) ...................................... 37, 50
People’s Mojahedin Org. of Iran v. United States Dep’t of State,
182 F.3d 17 (D.C. Cir. 1999) .................................................................................................... 51
Peterson v. Royal Kingdom of Saudi Arabia, 416 F.3d 83 (D.C.
Cir. 2005) .................................................................................................................................. 35
Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36 (D.C.
Cir. 2000) .............................................................................................................................. 8, 30
Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82
(D.C. Cir. 2002) .......................................................................................................................... 9
Robinson v. Gov’t of Malaysia, 269 F.3d 133 (2d Cir. 2001)......................................................... 8
Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (1992) ..................................................... 35
Risk v. Halvorsen, 936 F.2d 393 (9th Cir. 1991) .......................................................................... 47
Rostker v. Goldberg, 453 U.S. 57 (1981) ..................................................................................... 57
Roy v. United States, 416 F.2d 874 (9th Cir. 1969) ...................................................................... 45
S.K. Innovation, Inc. v. Finpol, 854 F. Supp. 2d 99 (D.D.C. 2012) ............................................. 69
SACE S.p.A. v. Republic of Paraguay, 243 F. Supp. 3d 21 (D.D.C.
2017) ........................................................................................................................................... 8
Saudi Arabia v. Nelson, 507 U.S. 349 (1993) ............................................................................... 35
Shuler v. United States, 531 F.3d 930 (D.C. Cir. 2008) ............................................................... 44

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Simon v. Republic of Hungary, 812 F.3d 127 (D.C. Cir. 2016) ...................................................... 9
Singh v. South Asian Society of the George Washington University,
572 F. Supp. 2d 11 (D.D.C. 2008) ............................................................................................ 40
Sledge v. United States, 883 F. Supp. 2d 71 (D.D.C. 2012) ......................................................... 40
The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116
(1812) ........................................................................................................................................ 43
Underhill v. Hernandez, 168 U.S. 250 (1897) .............................................................................. 35
United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304 (1936) ............................................... 53
United States v. Gan, 636 F.2d 28 (2d Cir. 1980) ........................................................................ 31
* United States v. Gaubert, 499 U.S. 315 (1991) ............................................................. 38, 43, 45
United States v. Kashamu, 656 F.3d 679 (7th Cir. 2011) ............................................................. 60
United States v. One Gulfstream G-V Jet Aircraft, 941 F. Supp. 2d
1 (D.D.C. 2013) ........................................................................................................................ 60
Von Dardel v. Union of Soviet Socialist Republics, 736 F. Supp. 1
(D.D.C. 1990) ........................................................................................................................... 68
Wultz v. Islamic Republic of Iran, 755 F. Supp. 2d 1 (D.D.C. 2010) ..................................... 58, 59
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) .................................................. 53
Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012) ...................................................... 51
Statutes
18 U.S.C. § 111 ............................................................................................................................. 32
* 18 U.S.C. § 112(a) ..................................................................................................................... 31
* 18 U.S.C. § 112(b) ......................................................................................................... 32, 33, 66
18 U.S.C. § 878 ................................................................................................................. 32, 34, 50
18 U.S.C. § 2339D ........................................................................................................................ 17
18 U.S.C. § 3056(a)(1) .................................................................................................................. 45
* 28 U.S.C. §§ 1330 & 1602, et seq. ........................................................................................ 2, 35
28 U.S.C. § 1350 ........................................................................................................................... 67
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28 U.S.C. § 1604 ..................................................................................................................... 35, 69
* 28 U.S.C. § 1605(a)(5) ........................................................................................................ passim
28 U.S.C. § 1605B ........................................................................................................................ 36
28 U.S.C. § 2680 ........................................................................................................................... 37
Rules
Fed. R. Civ. P. 12(b)(1) ........................................................................................................ 5, 8, 30
Other Authorities
U.S. Const. art. II, § 1, cl.1 ........................................................................................................... 52
U.S. Const. art. II, § 3 ................................................................................................................... 53
H.R. Rep. 79-1287 ....................................................................................................................... 37
H.R. Rep. 94-1487 ................................................................................................................. 38, 68
Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons, Including Diplomatic Agents,
Feb. 20, 1977, 28 U.S.T. 1975 ..................................................................................................... 30
United Nations Convention on the Prevention and Punishment of the
Crime of Genocide art. 2, Dec. 9, 1948, 78 U.N.T.S. 277 ........................................................... 55
Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77 .................................. 47

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I.

INTRODUCTION AND SUMMARY OF THE ARGUMENT.
On May 16, 2017, two altercations occurred outside the Turkish Ambassador’s Residence

(“Residence”) in Washington, D.C. (the “Incident”). The second of the two garnered wide
publicity, the first, none. The altercations occurred during Turkish President Recep Tayyip
Erdogan’s official state visit to the United States with a delegation of his senior ministers. Just
prior to the altercations, President Erdogan and President Trump met at the White House where
they discussed matters of vital importance to both Turkey and the United States, including both
nations’ interlocking roles as partners in the Global Coalition to Defeat ISIS, as well as a host of
issues raised by the civil war raging in Syria.
President Erdogan traveled by car from the White House to the Residence. Moments
before he arrived, a group of protesters (the “Anti-Turkey Group”) had physically confronted
Turkish security officers and injured several Turkey supporters who had gathered to welcome
President Erdogan. Upon his arrival, President Erdogan’s security detail engaged physically with
some of the Plaintiffs and other protesters at Sheridan Circle who were in close proximity to the
President’s car, senior Turkish ministers, and the Residence, and who were perceived as a threat
to their protectees’ safety.
The two altercations resulted in highly publicized injuries to some Plaintiffs, but scantly
publicized injuries to police, civilian supporters of Turkey, and Turkish security officers, all of
whom were assaulted by members of the Anti-Turkey Group. Plaintiffs’ theories that President
Erdogan intended the altercation to further what they characterize as “policies and procedures to
restrict fundamental freedoms” and to “deteriorat[e] . . . human rights,” (Am. Compl. ¶¶ 38-39),
or that Turkey’s presidential security detail acted out of ethnic animus towards persons of
Kurdish ethnicity, (Am. Compl. ¶¶ 45-50), are preposterous.

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These unfortunate altercations should never have happened, and should never occur again
due to the lessons learned that day. Fortunately, extensive video and other evidence related to
this Incident is available and depicts a sequence of events not mentioned by Plaintiffs’ Amended
Complaint, but which demonstrates U.S. courts lack jurisdiction to hear Plaintiffs’ claims against
Turkey. The evidence shows that the actions of the Turkish presidential security agents occurred
at a moment when they were faced with an angry and aggressive group of apparent supporters or
affiliates of a U.S.-designated Foreign Terrorist Organization (“FTO”), who had not been
subjected to security screenings at the site, who had just assaulted supporters of Turkey (the
“Pro-Turkey Group”) with impunity, who had previously advanced towards the Residence
despite police commands to stay back, and who remained within hand-gun or improvised
explosive device (“IED”) proximity of President Erdogan. The Turkish security officers’ and
Ambassador’s requests for the Metropolitan Police Department (“MPD”) to move this dangerous
group away from their head of state had been ignored or denied.

It was in this volatile

environment that President Erdogan’s personal security detail came to his aid to ensure he could
safely emerge from his car and enter the Residence without risk of an assassination attempt, the
avoidance of which is the primary objective of presidential security officers.

These were

discretionary acts of security, which are absolutely excluded from the subject matter jurisdiction
of the courts of the United States. See The Foreign Sovereign Immunities Act (“FSIA”), 28
U.S.C. §§ 1330 & 1602, et seq.
As set forth in Turkey’s counterstatement of facts (infra § II.B), the video and other
evidence submitted herewith objectively establish the following indisputable facts that
undermine Plaintiffs’ absurd theory that the Turkish security detail acted out of any motivation

2

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other than to secure its protectees who had entered a dangerous and volatile environment just
moments after leaving the White House:
o On May 16, 2017, while President Erdogan was meeting with President Trump at the
White House, Pro- and Anti-Turkey Groups demonstrated in Lafayette Park. The AntiTurkey Group displayed flags and signs supporting the Kurdistan Workers’ Party
(“PKK”), a dangerous terrorist organization responsible for tens of thousands of deaths
that has been designated by the U.S. as a Foreign Terrorist Organization, and the YPG,
the PKK’s Syrian arm.
o U.S. law enforcement properly separated the Pro- and Anti-Turkey Groups at Lafayette
Park, precluding physical conflict.
o Later, MPD inexplicably “escorted” the Anti-Turkey Group to Sheridan Circle and
positioned them just two traffic lanes from the Residence. The Anti-Turkey Group
advanced into traffic and ignored MPD commands.
o A first altercation erupted when Plaintiff Jalal Kheirabadi (“Kheirabadi”) spit on a
Turkish security guard, during which Plaintiff Kasim Kurd (“Kurd”) smashed a bullhorn
on the head of a civilian supporter of Turkey, requiring his hospitalization. Kurd hurled it
a second time at an MPD officer. Kurd or another member of the Anti-Turkey Group
threw a full or frozen water bottle at another civilian in the Pro-Turkey Group, hitting him
in the face and drawing blood. Plaintiff Mehmet Tankan (“Tankan”) kicked a Turkish
official during this altercation. MPD arrested no one.
o After the first altercation subsided, members of President Erdogan’s security detail and
Turkey’s Ambassador asked local law enforcement to move the Anti-Turkey Group
farther away from the Residence because President Erdogan was arriving. These requests
were either ignored or denied.
o When President Erdogan arrived at the Residence, the angry Anti-Turkey Group, of
which several members had already acted violently, continued to tout symbols of
PKK/YPG support while yelling aspersions about President Erdogan within an unsafe
distance of the Turkish president and the Residence he was attempting to enter.
o Local law enforcement did nothing to enforce U.S. federal law making it a crime for two
or more persons to harass or attempt to harass a foreign dignitary within 100 feet. See 18
U.S.C. § 112. MPD either ignored or was unaware that under U.S. law, and international
treaty obligations, dignitaries are different, and that the United States promises a higher
level of security to “internationally protected persons” than ordinary persons, as part of
the fabric of diplomacy and international comity.

3

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Layer into these circumstances that Turkey, President Erdogan, his senior ministers, and
other dignitaries in his delegation, who were being protected by Turkish security officers, face
monumental, daily security threats unparalleled by most NATO allies. And at the time of this
Incident, Turkey’s counter-ISIS missions in Syria were at their height.
Turkey borders some of the toughest patches of geography in the world, including Syria,
which in 2017 was the center of the so-called ISIS caliphate 1 with armed conflict taking place
just over the Turkish border. Importantly here, Turkey is also under constant terrorist threats
from the PKK, and its Syrian arm, the YPG, which have been responsible for the brutal murders
of tens of thousands of people. The PKK is responsible for scores of bombings throughout
Turkey, numerous assassination attempts on Turkish politicians from multiple political parties,
and is known to target diplomatic missions. Therefore, while MPD may have perceived this as
just another group of protesters, the Anti-Turkey Group’s indicia of support for, or affiliation
with, a known terrorist organization presented unique grounds for concern about the intentions of
this group when they achieved a position of close proximity to President Erdogan and members
of his delegation. The Turkish security officers filled this security vacuum and exercised their
discretion to remove the perceived threat.
The Kurd Plaintiffs have placed extraordinary emphasis in their Amended Complaint on
their political beliefs that it is the current Turkish government’s policy to illegally suppress
political discourse and discriminate against the entire population of Kurds. Plaintiff Murat Yasa
(“Yasa”) has made it very clear that this lawsuit was brought to leverage political pressure on
Turkey to negotiate with an imprisoned foreign terrorist leader – a perverse use of the U.S. court

1

In Turkey and the surrounding region, ISIS is more commonly referred to by its Arabic acronym
“DAESH.”
4

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system. Yasa boldly stated in an interview with Al-Monitor that, if President Erdogan were to
conduct peace talks with Abdullah Ocalan, the founder and leader of the PKK, he would
withdraw this lawsuit “without a second thought.”2 Yasa’s comments highlight that adjudication
of Plaintiffs’ theories would require this Court not only to judge whether President Erdogan
employs discriminatory or illegal tactics, an accusation made of the U.S. President on a daily
basis, but to engage in extreme entanglements with a foreign sovereign’s domestic policies,
which long-settled international legal principles, among them sovereign immunity, the sovereign
equality of all states, non-interference in domestic affairs of states, the Political Question
Doctrine, and comity, sternly prohibit. Moreover, Yasa’s comments reflect his support for, if not
activism on behalf of, the PKK, whose apparent presence among the Anti-Turkey Group in
Sheridan Circle in part prompted the protective measures now under scrutiny in this lawsuit.
In the context of these extraordinary circumstances and in light of Turkey’s sovereign
immunity, Turkey respectfully asks this Court to dismiss Plaintiffs’ claims, with prejudice and
without leave to amend, for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).
II.

STATEMENT OF FACTS.
A.

FACTS AS ALLEGED BY THE PLEADINGS.

Since this is a Rule 12(b)(1) motion, Turkey summarizes only those allegations of fact
that are jurisdictionally relevant.

2

Amberin Zaman, “Lawsuit over Washington violence looms over US-Turkey relations”, AlMonitor (Jan. 3, 2019), https://www.al-monitor.com/pulse/originals/2019/01/lawsuitwashington-violence-us-turkey-relations.html (last visited June 3, 2019).
5

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1.

The Incident At Sheridan Circle As Alleged By Plaintiffs.

Plaintiffs allege that on May 16, 2017, they assembled in Lafayette Square in front of the
White House to protest against President Erdogan. (Am. Compl. ¶¶ 54-55.) They then traveled
with other protesters to the Residence at Sheridan Circle, “where they believed President
Erdogan was going,” and found a group already gathered on the sidewalk directly in front of the
Residence when they arrived.

(See id. ¶¶ 57-59.)

Plaintiffs allege this group included

individuals invited by the Turkish Ambassador to show support for President Erdogan, as well as
staff of the Turkish delegation traveling with him. (See id. ¶ 59.) Plaintiffs allege no one in the
Anti-Turkey Group advocated violence and they contend they were all peaceful. (See id. ¶ 64.)
The Amended Complaint alleges that despite the presence of MPD and U.S. Secret
Service, members of the Pro-Turkey Group pushed past the police and, along with Turkish
security officials, physically attacked the Anti-Turkey Group in a “relatively short” first
altercation. (See id. ¶¶ 66-69.) Plaintiffs allege that after the first altercation, MPD created a
“cordon” attempting to keep the Pro-Turkey Group on the sidewalk in front of the Residence.
(See id. at ¶ 70.)
Plaintiffs allege that after the first altercation, one of the Turkish security officials told an
MPD officer, “‘[Y]ou need to take them’ referring to the protest[ers], and ‘if you don’t, I will.’”
(Id. ¶ 74.) Plaintiffs allege another Turkish agent told a U.S. Secret Service officer, “‘We are
waiting [for] you to take them out, because President [Erdogan] is coming. If you don’t take . . .
I will take.’” (Id. (alteration in original).) Plaintiffs also allege that the Turkish Ambassador
himself urged MPD to move the Anti-Turkey Group away, saying, “‘I am the ambassador. You
cannot let this . . . you cannot touch us.’” (Id. ¶ 75.) Plaintiffs also allege that civilian Defendant
Eyup Yildirim “‘yelled’ at an officer warning him ‘of potential violence if the protesters

6

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continued their protest.’” (Id. ¶ 76.) Individual Sinan Narin made a similar plea to MPD,
“saying not to touch the Turkish security officers as they ‘protect’ the ‘President,’” and Plaintiffs
allege he explained that he did not cooperate with MPD commands because, as he said, “‘My
President is coming, I don’t want them to be over there.’” (See id. ¶ 77.) Thus, Plaintiffs
acknowledge that Turkish agents were expecting MPD and U.S. Secret Service to take action to
protect their head of state. The only MPD response Plaintiffs allege is that an officer said the
protesters, “‘have a right to talk.’” (Id. ¶ 73.)
President Erdogan then arrived at the Residence. (See id. ¶ 79.) He was allegedly seen
speaking to his head of security and, following that interaction, Plaintiffs, none of whom could
have possibly heard or known what was said, make the wild accusation that President Erdogan
ordered an attack on the protesters.

(See id. ¶¶ 79-80.)

Plaintiffs contend that following

communications among Turkish government employees, Turkish government employees then
crossed the street, passed the MPD officers, and commenced a second assault on the anti-Turkey
protesters. (See id. ¶ 80.) Plaintiffs allege that during the assault, the attackers yelled “ethnic
slurs.” (See id. ¶ 82.) Plaintiffs allege the Turkish agents’ actions were motivated by prejudices
against Kurds. (See id. ¶¶ 254-255.)
Plaintiffs also contend President Erdogan’s security team has resorted to violence and
removed protesters during other state visits and international travel with President Erdogan, but
do not allege the security circumstances or threats to President Erdogan that related to these
incidents. (See id. ¶¶ 218-221.)
2.

Summary Of Legal Claims Alleged By The Amended Complaint.

Plaintiffs, in various combinations, assert the following claims against Turkey: Assault
(Count I); Battery (Count II); False Imprisonment (Count III); Intentional Infliction of Emotional

7

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Distress (Count IV); violation of D.C. Code § 22-3704 (Count V); and Violation of Enforcement
Jurisdiction under the Alien Tort Statute, 28 U.S.C. § 1350 (Count VI).
B.

COUNTERSTATEMENT OF FACTS IN SUPPORT OF TURKEY’S
JURISDICTIONAL DEFENSES.
1.

Turkey Is Entitled To Present A Counterstatement Of Facts And
Evidence Outside Of The Pleadings In Support Of Its Jurisdictional
Defenses.

In the context of a Rule 12(b)(1) challenge to jurisdiction under the FSIA, “the court must
go beyond the pleadings and resolve any disputed issues of fact the resolution of which is
necessary to a ruling upon the motion to dismiss.” Phoenix Consulting Inc. v. Republic of
Angola, 216 F.3d 36, 40 (D.C. Cir. 2000) (reversing the lower court’s denial of an FSIA motion
to dismiss because it failed to consider Angola’s evidence and assumed the truth of the
complaint’s factual allegations). Courts may consider evidence beyond the pleadings and “must
do so if resolution of a proffered factual issue may result in the dismissal of the complaint for
want of jurisdiction.” MMA Consultants 1, Inc. v. Republic of Peru, 245 F. Supp. 3d 486, 499
(S.D.N.Y. 2017) (quoting Robinson v. Gov’t of Malaysia, 269 F.3d 133, 140 n.6 (2d Cir. 2001)).
“This evidence may include affidavits, exhibits and declarations.” Id. In the FSIA case Republic
of Peru, for example, the court granted a motion to dismiss based on “reports and articles from
the late 1800s detailing Peruvian debt instruments and the guano trade,” “excerpts from
newspaper articles,” “trade reports and a congressional hearing transcript,” none of which was in
the pleadings. Id. at 503-04. The Court “has a duty to make its own independent factual
determinations in order to ascertain its authority under the FSIA.” SACE S.p.A. v. Republic of
Paraguay, 243 F. Supp. 3d 21, 43 (D.D.C. 2017) (granting Paraguay’s FSIA motion to dismiss in
reliance on declarations it proffered). Thus, when a foreign state disputes the factual basis of
subject matter jurisdiction under the FSIA, “the trial court is required to go beyond the pleadings
8

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. . . .” Belhas v. Ya’Alon, 466 F. Supp. 2d 127, 129 (D.D.C. 2006) (quoting Price v. Socialist
People’s Libyan Arab Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002)) (granting FSIA motion to
dismiss in reliance on an ambassador’s letter in response to litigation); see also, e.g., Simon v.
Republic of Hungary, 812 F.3d 127, 144 (D.C. Cir. 2016) (“If the defendants were to challenge
the factual basis of those allegations on remand, the district court would need to go beyond the
pleadings and resolve the factual dispute.”).
Accordingly, on this Rule 12(b)(1) motion, it is proper for Turkey to present evidence
outside the pleadings concerning the Incident that is relevant to its sovereign immunity defense.
Evidence of the circumstances that show Turkey’s entitlement to sovereign immunity follows.
2.

The Challenge Of Securing Turkish Leaders.

Turkey, a NATO, G-20, and Council of Europe member, is a consequential regional
power with a population of over 80 million, located in a strategic and sometimes dangerous
region.3 (Ex. 1, Yavuz Decl. ¶¶ 7, 9.) Its leaders’ policies are, therefore, scrutinized carefully
both within and beyond the country’s borders. Turkey’s current head of state, President Recep
Tayyip Erdogan, has been a public figure since the mid-1990s, having first served as Mayor of
Istanbul, then as a member of the Turkish parliament, then as Prime Minister and, since July
2014, as President. (Id. ¶ 33.)
President Erdogan, perhaps no less so than the U.S. president, stokes heated discussion.
His style of campaigning and governance, the policies he supports, the tenor of his public
addresses, and even his mustache, engender passionate debate. Any person with a newspaper
subscription or access to the Internet can attest to the many column inches of newsprint,

3

U.S. Dep’t of State, U.S. Relations With Turkey, Bureau of European and Eurasian Affairs Fact
Sheet (Mar. 27, 2019), https://www.state.gov/r/pa/ei/bgn/3432.htm (last visited June 3, 2019).
9

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megabytes of online journalism, and millions of social media posts that report on and analyze his
actions.
And perhaps no less so than the U.S. president, President Erdogan has extraordinary
security needs. (See Ex. 2, White Decl. ¶¶ 18-21, 26-27, 31-32; see also Ex. 1, ¶¶ 8, 34, 52.) In
service of his country, he travels abroad frequently, having made twenty foreign visits between
July 2018 and April 2019 alone.4 Moreover, on July 16, 2016, ten months before his visit to the
U.S., an assassination attempt on President Erdogan killed one of his security guards and a
policeman.5 And although security risks are not usually publicized, President Erdogan was the
target of more than 300 assassination attempts between 2002 and 2013 when he was serving as
Prime Minister.6 (See Ex. 1, ¶ 8.) As Turkey is a member of the anti-ISIS coalition and faces
several U.S.-designated FTOs7 both on its home soil and in its near abroad, securing Turkey’s
leaders presents a host of acute and complex challenges.
4

(See id. ¶¶ 8, 10-11, 51-52, 55

Website of the Turkish Presidency, Yurt Dışı Ziyaretler (Foreign Visits),
https://www.tccb.gov.tr/receptayyipErdogan/yurtdisiziyaretler/?&page=1 (last visited June 3,
2019).
5
Times of Israel, Erdogan said to have been target of assassination attempt during failed coup,
(July 18, 2016), https://www.timesofisrael.com/Erdogan-said-to-be-target-of-assassinationattempt-during-failed-coup/1 (last visited June 3, 2019). Additionally, in December 2017, just
months after the Sheridan Circle Incident, Greek authorities foiled a plan to assassinate President
Erdogan during his visit to Athens by attacking his car with rockets, grenades, and Molotov
cocktails. See Arrested DHKP-C militants plotted to assassinate Erdogan in Athens: Greek
media, HURRIYET DAILY NEWS (Dec. 18, 2017), http://www.hurriyetdailynews.com/arresteddhkp-c-militants-plotted-to-assassinate-Erdogan-in-athens-greek-media-124323 (last visited June
3, 2019).
6
Yahya Bostan, Alper Sancar, Gündem Haberleri, Erdoğan'a 10 yılda 100 suikast girişimi,
Sabah, (Jan. 25, 2013), https://www.sabah.com.tr/Gundem/2013/01/25/Erdogana-10-yilda-100suikast-girisimi (last visited June 3, 2019).
7
See U.S. Dep’t of State, U.S. Relations With Turkey, Bureau of European and Eurasian Affairs
Fact Sheet (Mar. 27, 2019), https://www.state.gov/r/pa/ei/bgn/3432.htm (last visited June 3,
2019) (referencing Turkey’s security cooperation in defeating terrorist organizations including
the PKK, DHKP/C, and ISIS); see also U.S. Dep’t of State, Foreign Terrorist Organizations,
Bureau of Counterterrorism, https://www.state.gov/j/ct/rls/other/des/123085.htm (last visited
June 3, 2019).
10

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(describing ISIS attacks on Turkish targets since 2013, among them, bombings in Turkey that
claimed 259 lives and maimed hundreds more).)
3.

The U.S. Invited President Erdogan To Washington, D.C.

At the invitation of the White House, President Erdogan, and a delegation including his
Minister of Foreign Affairs, Minister of Defense, Minister of Justice, Minister of Energy and
Natural Resources, several senior diplomats, and other aides visited Washington, D.C. on May
15 and 16, 2017. The composition of the delegation reflected the breadth and significance of the
U.S.–Turkey relationship and the planned meetings. The two nations are NATO members,
partners in the anti-ISIS coalition in Iraq and Syria, and share a robust trading relationship of
more than $20 billion annually, with the balance of trade favoring the U.S. 8 The centerpiece of
the visit was the planned bilateral meeting at the White House chaired by the two presidents to
take place on May 16. Topping the agenda were joint efforts to fight terrorism both globally and
within countries adjoining Turkey9 and the controversial decision of the U.S. to arm the Syrian
branch of a U.S.-designated FTO.10 (Id. ¶¶ 41-46 (describing the alter ego status of the PKK and
YPG); id. ¶¶ 11, 47-48, 54-55 (describing the policy problem inherent in the U.S.’ treatment of

8

U.S. Dep’t of State, U.S. Relations With Turkey, Bureau of European and Eurasian Affairs Fact
Sheet (Mar. 27, 2019), https://www.state.gov/r/pa/ei/bgn/3432.htm (last visited June 3, 2019).
9
Remarks by President Trump and President Erdogan of Turkey in Joint Statement (May 16,
2017), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-presidentErdogan-turkey-joint-statement/ (last visited June 3, 2019); Yasmeen Serhan, 'A New Era' in
U.S.-Turkish Relations, THE ATLANTIC (May 16, 2017),
https://www.theatlantic.com/news/archive/2017/05/trump-Erdogan/526851/ (last visited June 3,
2019).
10
Angela Dewan, Erdogan meets Trump: 3 key issues topping the agenda,
https://www.cnn.com/2017/05/16/politics/Erdogan-trump-turkey-us-meeting/index.html
(last
visited June 3, 2019); Julie Hirschfeld Davis, Mark Landler, Trump Praises Erdogan as Ally in
Terrorism Fight, Brushing Aside Tensions, N.Y. TIMES (May 17, 2017),
https://www.nytimes.com/2017/05/16/world/middleeast/erdogan-turkey-trump.html (last visited
June 3, 2019).
11

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the PKK/YPG in Syria); id. ¶¶ 49-50, 53 (detailing Turkish security threats emanating from Syria
and the humanitarian burden Turkey has absorbed from the influx of Syrian refugees).)
4.

President Erdogan Arrived On May 15, 2017 Under Tight Security.

The U.S. provided President Erdogan lodging at the President’s Guest House, commonly
known as Blair House, on Pennsylvania Avenue. When a Turkish head of state arrives in a
foreign country, Turkish citizens and those with Turkish heritage customarily greet him or her.
The May 2017 visit was no different. Prior to President Erdogan’s arrival on May 15, 2017, a
group of Turkish Americans, some having traveled from long distances, gathered near the closest
barricades outside of Blair House to welcome him to the U.S. They assembled on Pennsylvania
Avenue near the northeast corner of 17th Street. The group had obtained a valid assembly permit
from MPD. (Ex. 3, 5/15/17 MPD Assembly Plan.)
No protesters, whether anti-Turkey or anti-President Erdogan, were present.
Nevertheless, out of an apparent abundance of caution, U.S. Secret Service officers ordered the
group of friendly Turkish Americans to move to the northwest corner of 17 th Street and
Pennsylvania Avenue, a distance of approximately 280 feet from Blair House. (Ex. 4, A-E, May
16, 2017 Photos of 17th & Pennsylvania.) The group willingly complied and understood this to
be a valid safety measure befitting the solemnity of President Erdogan’s visit.
President Erdogan arrived by motorcade in the late afternoon. The Turkish Americans
displayed a welcome banner, waved Turkish flags, sang the Turkish national anthem, and shortly
afterward dispersed. (See id.)

12

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5.

The Lafayette Park Demonstrations:
Intervened To Separate Rival Groups.

U.S.

Security

Officers

On May 16, 2017, as Presidents Trump and Erdogan were meeting, the Pro-Turkey
Group11 and the Anti-Turkey Group staged demonstrations on Pennsylvania Avenue across from
the White House and in Lafayette Park. Each group possessed a valid assembly permit from
MPD. The Pro-Turkey Group, mainly Turkish Americans voicing support for the U.S.–Turkey
relationship, obtained a permit in the name of the Turkish American National Steering
Committee from MPD for Pennsylvania Avenue in front of the White House. (Ex. 5, 5/16/17
MPD Assembly Plan.) However, the area directly in front of the White House was closed due to
security for the bilateral talks, so U.S. security officers moved the Pro-Turkey Group eastward on
Pennsylvania Avenue. (Ex. 6, Video Thumbdrive at File Nos. LS01, LS02, LS03, LS04, LS05)
(showing Pro-Turkey Group in front of the White House fence surrounded by heavy security). 12
Meanwhile the Anti-Turkey Group13 had gathered on the southeast quadrant of Lafayette Park,
directly facing the Pro-Turkey Group, apparently having obtained a permit from MPD for the use
of Lafayette Park.

(Id. at File No. LS06) (showing Anti-Turkey and Pro-Turkey Groups

separated on opposite sides of Pennsylvania Avenue).

11

Turkey uses the term Pro-Turkey Group with respect to the group in Lafayette Park, but not all
of the people among the Pro-Turkey Group in Lafayette Park were present for the Incident
because many of them went to the Turkish Embassy, rather than the Residence.
12
Exhibit 6 was filed under seal.
13
As will be illustrated, this group included PKK and YPG supporters, as well as persons
espousing anti-President Erdogan and anti-Turkey rhetoric.
13

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a.

The Anti-Turkey Group Displayed Support For A Foreign
Terrorist Organization.

Members of the Anti-Turkey Group held signs and yellow flags that openly supported the
PKK, a U.S.-designated Foreign Terrorist Organization,14 the PKK’s founder and leader,
Abdullah Ocalan, and the PKK’s Syrian alter ego, the YPG. 15 (Id. at File Nos. LS07, LS08,
LS09; Ex. 1, ¶¶ 19-24 (describing Ocalan, “His main goal was to destroy not just the Turkish
state, but also the traditional Kurdish societal structure,” and the founding and operation of the
PKK).) Plaintiff Kheirabadi16 displayed a YPG flag. (Ex. 7, Photo of Kheirabadi with YPG flag;
Ex. 8, Photos showing PKK and YPG signs among Anti-Turkey Group in Lafayette Park.) 17 One
of the flags displaying PKK leader Ocalan in Lafayette Park was a smaller version of the
tremendous one displayed by the YPG in Raqaa, Syria. (Compare Ex. 1, ¶ 47 (citing internet
photo of same flag in Raqaa) with Ex. 6, at File Nos. LS17, LS02, LS04 at 0:00-03, LS06 at
0:04-08, LS07 at 0:04-12, LS08, LS09, LS10.)

14

U.S. Dep’t of State, State Department Maintains Foreign Terrorist Organization (FTO)
Designation of the Kurdistan Workers’ Party (PKK), (Mar. 1, 2019), https://www.state.gov/statedepartment-maintains-foreign-terrorist-organization-fto-designation-of-the-kurdistan-workersparty-pkk/ (last visited June 3, 2019).
15
Indeed, the so-called Official YPG Page for International Fighters, extols Ocalan as the
“founder of the the Kurdistan Workers’ Party (PKK), the armed wing of the Kurdish struggle for
autonomy … . From 1984, the PKK fought for an independent Kurdish state in southeast Turkey,
… in which thousands of PKK guerrillas have fought the Turkish army, the second largest in
NATO.”
Official
YPG
Page
for
International
Fighters,
https://ypginternational.blackblogs.org/books/ (last visited June 3, 2019).
16
Kheirabadi, who is wearing a bright blue shirt, can be seen in one of these photos holding up a
yellow YPG flag. Later, he appears in the Sheridan Circle videos, easily identifiable by his
bright blue shirt, leading the Anti-Turkey Group’s advancement on the Residence in the first
altercation, failing to obey commands of Turkish security officers, kicking and punching Turkish
security officers, assaulting an MPD officer, and being arrested for “APO,” – assaulting a police
officer. (See infra § II.B.8.)
17
Exhibits 7 and 8 were filed under seal.
14

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The PKK is a terrorist organization that aims to carve an ethnically pure, Marxist-Leninist
state from the territory of Turkey. (Ex. 1, ¶ 19.) Turkish military operations to eliminate PKK
terrorism have been ongoing since the mid-1980’s. (Id. ¶ 25.) Fighting continues up to the
present. Casualties from this period alone have been steep: since July 2015, over 1,200 Turkish
soldiers and security officers have been killed by the PKK, with another 5,000 wounded. (Id. ¶
50.) According to the U.S. Office of the Director of National Intelligence, the PKK’s “campaign
of armed violence, including terrorism, [has] resulted in over 45,000 deaths.” 18
PKK attacks have been numerous and gruesome. (Ex. 1, ¶ 26 (13 killed to protest
Ocalan’s arrest); id. at ¶ 24 (describing car and truck bombings that killed 57 people, including a
mother and her baby); id. at ¶ 34 (describing five high-casualty PKK attacks, two of them by
suicide bombers, and two PKK attacks against Turkish politicians, all near the date of President
Erdogan’s visit to the U.S.).) Of particular significance to the present case, the PKK routinely
targets diplomatic missions, having attacked Turkish missions in multiple countries, the U.S.
Embassy in Athens, the Israeli consulate in Berlin, as well as Greek and Kenyan embassies. (Id.
¶¶ 27-31.)
In short, PKK terrorism targeting Turkey constitutes a clear and present danger to the
lives of Turkish officials, security forces, and innocent civilians. Understandably, all threats of
PKK violence and all expressions of support for the PKK are taken with extreme seriousness and
urgency by the government of Turkey. (Id. ¶ 51.)

18

Office of the Director of National Intelligence, Turkish Domestic Terrorism,
https://www.dni.gov/nctc/groups/turkey_domestic_terrorism.html (last visited June 3, 2019).
15

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b.

There Were Likely Military-Trained Men In The Anti-Turkey
Group Who Had Fought With PKK Units.

The likelihood is great that among the crowd of Turkish Americans gathered in Lafayette
Park and later at the Residence were individuals who had experienced PKK terror that claimed
the lives of, or that injured, loved ones or close friends. The same would be true for the Turkish
security officers accompanying President Erdogan and his delegation.
Added to this is the fact that foreign fighters from various countries have gone to Syria
and returned, making the security challenges faced by those guarding Turkish officials worldwide
more complex.19 (Ex. 2, ¶ 32.) Some of those foreign fighters include Americans who have
joined the PKK/YPG.20 Publicly available sources illustrate at least two of the Plaintiffs – Kurd
and Kheirabadi – have associations with such foreign fighters. (See Ex. 1, ¶ 25 (noting that,
unlike these misguided American adventurists, the majority of Turkey’s Kurds have not rallied to
the PKK’s cause).)
On September 21, 2017, three YPG supporters, including one woman holding the flag of
the Women’s Protection Units (“YPJ”), the female counterpart to the YPG, interrupted a
speaking engagement by President Erdogan at a hotel in New York City by shouting obscenities

19

Megan Specia, Foreign Fighters Back Kurdish Militia in Syria in Fight Against Turkey, N.Y.
TIMES (Jan. 27, 2018), https://www.nytimes.com/2018/01/27/world/middleeast/foreign-fighterskurdish-militia-syria.html (last visited June 3, 2019).
20
Shirin Jaafari, For some Americans, the conflict in Syria is ‘the Spanish Civil War of our time’,
PRI’S THE WORLD, (Sept. 13, 2017), https://www.pri.org/stories/2017-09-13/some-americansconflict-syria-spanish-civil-war-our-time (last visited June 3, 2019). The YPG recruits using
English language websites, among them, The Official YPG Page for International Fighters,
https://ypginternational.blackblogs.org (last visited June 3, 2019), and the Lions of Rojava
Facebook Page, https://www.facebook.com/TheLionsofRojavaOfficial/ (last visited June 3,
2019).
16

 Case 1:18-cv-01117-CKK Document 90 Filed 06/04/19 Page 29 of 82

at President Erdogan.21 U.S. security officials in President Erdogan’s detail forcibly ejected
them, and they were then detained by venue security. (Id.) Among those detained was Kurd.
Also detained were at least three individuals known to have taken up arms in Syria, quite likely
in violation of 18 U.S.C. § 2339D, which prohibits “receiving military-type training from a
foreign terrorist organization.” See 18 U.S.C. § 2339D.
One of them, Lucas Chapman, is from the Washington, D.C. area. In an interview with
The New Yorker, he explained that he meets other potential YPG military recruits at pro-Kurdish
protests in Washington, D.C.22 Another who was stalking President Erdogan that day was
Robert Amos, who in one of his published war diaries explicitly declares that the organizations
that perpetuate the ideals of PKK founder Abdullah Ocalan are, “the PKK in Turkey, PJAK in
Iran, and PYD in Rojava (northern Syria). All of these organizations are members of an umbrella
. . . .”23 Kheirabadi who, as shown above, was holding a YPG flag in Lafayette Park on May 16,
2017, is an associate of Amos.24

21

Maggie Astor, Nicholas Fandos, Fighting Breaks Out at Turkish President’s Speech in New
York, N.Y. TIMES, (Sept. 21, 2017), https://www.nytimes.com/2017/09/21/us/erdogan-newyork.html (last visited June 3, 2019).
22
Nicholas Schmidle, College Grads Fight ISIS With The Kurds, THE NEW YORKER, (July 31,
2017), https://www.newyorker.com/magazine/2017/08/07/college-grads-fight-isis-with-the-kurds
(last visited June 3, 2019) (stating that Chapman’s job prior to taking up arms in Syria was in
Washington, D.C., also stating that he meets YPG military recruits in D.C.); Liz Sly, How two
U.S. Marxists wound up on the front lines against ISIS, THE WASHINGTON POST, (Apr. 1, 2017),
https://www.washingtonpost.com/world/middle_east/how-two-us-marxists-wound-up-on-thefront-lines-against-isis/2017/03/30/3c722344-c79e-11e6-acda59924caa2450_story.html?utm_term=.df85b4a78bfa (last visited June 3, 2019).
23
Robert Amos, I Fought ISIS with the Kurds In Syria. This Is What It Was Like, THE TOWER
MAGAZINE, (Jan. 2017), http://www.thetower.org/article/i-fought-isis-with-kurds-in-syria-this-iswhat-it-was-like/ (last visited June 3, 2019).
24
Wes Enzinna, This American Fought ISIS. Now He’s Trying to Get Washington to Untangle
Its
Syria
Policy,
PULITZER
CENTER,
(Dec.
27,
2016),
https://pulitzercenter.org/reporting/american-fought-isis-now-hes-trying-get-washingtonuntangle-its-syria-policy (last visited June 3, 2019) (describing a 2016 incident in Washington,
17

 Case 1:18-cv-01117-CKK Document 90 Filed 06/04/19 Page 30 of 82

Thus, a proper intelligence and security briefing concerning the composition of the
opposing groups should have alerted U.S. Secret Service and MPD that it was likely that there
were individuals in the Anti-Turkey Group that had received training on the use of weapons and
explosives from PKK/YPG terrorists and were part of PKK/YPG units. (See Ex. 2, ¶¶ 29-32.)
c.

U.S. Officers Acted Decisively To Defuse A Potentially Violent
Situation In Lafayette Park.

While the presidents were meeting, some members of each group in Lafayette Park began
shouting slogans and unflattering epithets and gesticulating toward each other. As tempers
flared, U.S. federal security officers decisively intervened to create additional space between the
groups. First, federal security officers pushed the Pro-Turkey Group south across Pennsylvania
Avenue. Then, the same officers moved the Anti-Turkey Group to the northeast quadrant of
Lafayette Park, and shortly afterward moved the Pro-Turkey Group also into Lafayette Park. The
two groups were separated by approximately 50-75 feet, with each side behind barricade tape, a
phalanx of federal security officers between them, and police cars bordering the square. (See
generally Ex. 6, at File Nos. LS07, LS11, LS12.) There were also SWAT officers present. (Id.
at File No. LS13.) The Anti-Turkey Group chanted anti-President Erdogan rhetoric while the
Pro-Turkey Group voiced support for Turkey and played patriotic Turkish music. (See id. at File
Nos. LS14, LS15, LS16.)

D.C. where Amos chased Joe Biden by car following a Hillary Clinton campaign speech where
Amos shouted at Biden from the crowd regarding U.S. policy concerning the YPG, and referring
to Amos’ driver in the chase as, “Jay Kheirabadi, an Iranian Kurd who lives in Maryland,” who
then also helped Amos stage a protest outside the gates of the U.S. Naval Observatory).

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In short, U.S. security officers perceived the need for physical separation, and moved the
two groups apart accordingly, meanwhile allowing each group’s members to express themselves
within well-defined spaces at a safe distance.
Put another way, a combustible situation had arisen: fuel was present in the form of
dozens of rival protesters; pressure had built from the groups being in close proximity; oxygen
was present in the form of the ability of each group to hurl insults at each other. All that was
needed for an explosion was a spark, whether a thrown fist or hurled object. But the officers,
recognizing the risk of a conflagration, exercised their discretion and reacted by separating the
groups and filling the gap with a sufficient number of officers to enforce the division. Therefore,
other than some feelings being hurt, the Lafayette Park demonstrations concluded without
incident.
6.

MPD “Escorted” The Anti-Turkey Group To Sheridan Circle.

Following the demonstrations in Lafayette Park, while the majority of the Pro-Turkey
Group made their way to the Turkish Embassy Chancery at 2525 Massachusetts Avenue, N.W.,
according to an affidavit recorded by one of the U.S. security officers, MPD officers were
detailed to “escort” the Anti-Turkey Group to the Residence, which is located on 23 rd Street,
N.W., adjacent to Sheridan Circle. (See Ex. 9, MPD Off. Alberti Statement ¶ 2.) There were no
protocols for screening the Anti-Turkey Group upon their arrival at Sheridan Circle. (See Ex. 2,
¶¶ 34-35.)
7.

U.S. Security Officers Placed The Rival Groups Within 35 Feet Of
Each Other At Sheridan Circle, Leaving Them Separated By Only
Two Lanes Of Traffic.

Prior to the arrival of the Anti-Turkey Group, supporters of Turkey and President
Erdogan had gathered on the sidewalk adjoining the Residence to await the arrival of President

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Erdogan and his delegation, intending to show their support for Turkey. (Ex. 6, at File No. SC01
at 0:01-0:40.) Having escorted the Anti-Turkey Group to the vicinity of the Residence, U.S.
security officers arrayed the Anti-Turkey Group directly opposite the Pro-Turkey Group,
separated only by two active lanes of traffic on Massachusetts Avenue on the southwest portion
of Sheridan Circle. (Id.) This placed the Anti-Turkey Group within approximately fifty feet of
the Residence. (Id.) “That [was] well within the range of a hand gun, an IED, or a biochemical
projectile.”

(Ex. 2, ¶ 35.)

Some members of the Anti-Turkey Group, including Kurd,

Kheirabadi, Heewa Arya (“Arya”), C.A. (carried by her father Arya), Abbas Azizi (“Azizi”), and
Ceren Borazan (“Borazan”), moved into Massachusetts Avenue while Kurd and others yelled
rhetoric like “Erdogan Terrorist!” and “Baby Killer Erdogan” over a megaphone as they
advanced through two lanes of traffic towards the Residence and members of the Turkish
delegation. (Ex. 6, at File No. SC01 at 0:01-0:40.) There were no physical barriers to maintain
separation between the rival groups. Eventually, the Anti-Turkey Group, in defiance of repeated
police commands to remain on Sheridan Circle, blocked traffic on Massachusetts Avenue. (Id. at
0:01-0:50.) There were no visual barriers blocking the direct line of sight between Sheridan
Circle and the Residence where President Erdogan was to arrive. (Id.) Relative to the security
applied for other events related to the Turkish state visit at, for example, Blair House and
Lafayette Park, the insufficiency of the resources devoted to Sheridan Circle was aberrant.
The encroachment of the Anti-Turkey Group, predictably, caused members of each group
to once again engage in shouting, chanting, insulting, and gesticulating toward each other. (Id.)
The same combustible situation that had existed at Lafayette Park was thus recreated. But this
time there was a spark.

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8.

The First Altercation Broke Out On Massachusetts Avenue.

At approximately 4:05 p.m., the shouting Anti-Turkey Group in Massachusetts Avenue
was completely blocking both lanes of vehicular traffic, possibly to obscure the movements of
others in their group. (Id. at File No. SC01 at 0:01-0:30; see also Ex. 2, ¶ 40.) Kheirabadi (in the
bright blue shirt and wearing a backpack) can be seen almost at the edge of the sidewalk of the
Residence, and Kurd (man with the bullhorn) is within a few feet of the sidewalk. (Ex. 6, at File
No. SC01 at 0:01-0:30.) No U.S. officer intervened even to stop the Anti-Turkey Group from
impeding traffic. (Id.) The groups continued to taunt each other. (Id.)
The first altercation broke out when Kheirabadi is seen in the video shouting, spitting at,
and advancing towards a man in khaki uniform (which Plaintiffs allege signifies members of
President Erdogan’s security team (see Am. Compl. ¶ 27), breaking into a fist fight among them.
(Ex. 6, at File No. SC01 at 0:24-1:02.) Kheirabadi’s backpack is an extremely serious security
threat. (Ex. 2, ¶ 41.) Plaintiffs Kurd, Tankan, Azizi, Arya, Borazan, Stephen Arthur, Mehmet
Ozgen, and others also participated in this first altercation. 25 (Ex. 6, at File No. SC01 at 0:241:02.)
Kurd smashed Canadian citizen Alpkenan Dereci in the head with a bullhorn, severely
injuring him.26 (Id. at 0:53-57; see also id. at File No. SC02 at 0:04-28.) Mr. Dereci was later
hospitalized and required sixteen stitches to repair his split scalp and bruised skull. (See id. at
File No. SC02 at 2:00-2:08; SC01 at 3:10-3:24.)

25

Exhibit 10 (filed under seal) is a set of screen shots taken from the end of File No. SC02
identifying the various persons from the still segments of that video, which identifies a number of
the Kurd Plaintiffs involved in the first altercation.
26
See also id. at File No. SC02 at 12:48 “Subject AK: Mollaouglu, Kasim a.k.a Kurd, Kasim”
(showing Kurd about to throw his bullhorn at Alpkenan Dereci).
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Notwithstanding that Kurd was one of the most visible aggressors during the first
altercation, Kurd alleges in the Complaint that, “during the first attack, Turkish security officials
. . . attempted to grab, pushed, and then repeatedly punched [him] in the head.” (Am. Comp. ¶
93.) The video, however, shows Kurd was not punched in his head at all during the first
altercation. (See File No. SC02 at 0:22-59). Kurd also alleges that during the second altercation
he “was able to escape” (Am. Compl. ¶ 95), and the video corroborates that no Turkish agents
made any physical contact with him and he was not physically injured. (See File No. SC02 at
0:29-58.) Yet, inexplicably, Kurd alleges that he suffered injuries to his head and hand. (Am.
Compl. ¶ 97.)
Kheirabadi is seen during the first altercation kicking and fighting with Turkish security
officers, while Kurd used his bullhorn as a weapon a second time, hurling it towards an MPD
officer and Turkish security officers. (Id. at 0:29-51.) Approximately 25-30 seconds into the
altercation, Kheirabadi still had not retreated, but continued to advance toward Turkish security
officers, and confronted an MPD officer. (Id. at 0:29-58.) It took two uniformed MPD officers
to escort Kheirabadi back to Sheridan Circle. (Id. at File No. SC01 at 1:18-28.)
Kurd also hurled what appears to be a full or frozen bottle at the Pro-Turkey Group,
which hit U.S. citizen Sinan Narin in the face, injuring him and drawing blood. (Id. at File No.
SC02 at 0:57-1:04, 2:08-2:14 (showing blood above Narin’s lip).) Tankan, the man wearing a
white shirt, red vest, and sunglasses, alleges that he was kicked by Defendant Ahmet Cengizhan
Dereci during the first altercation, but the video shows otherwise. (See Am. Compl. ¶ 177.) The
video shows that Tankan kicked a Turkish official during the first altercation. (See File No.
SC02 at 00:40-47.)

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At this point most of the Pro-Turkey Group voluntarily withdrew to the sidewalk
adjoining the Residence.

But, the Anti-Turkey Group continued to hurl objects and shout

provocations. Plaintiff Borazan, the woman with long brown hair wearing a scarf and white
shirt, accused the Turkey supporters of being terrorists and sprayed the contents of another plastic
bottle in the direction of the police and Pro-Turkey Group, while standing in the middle of the
traffic lanes on Massachusetts Avenue. (Id. at File No. SC02 at 1:04-1:30.) Head of state
security officers are typically “trained to treat the dispersal of any liquid as a potential
biochemical hazard.” (See Ex. 2, ¶ 46.)
U.S. law enforcement at this point managed to separate the rival groups to the sidewalks
on opposite sides of Massachusetts Avenue and re-open traffic flow. (Ex. 6, at File No. SC01 at
1:15-3:55; see also id. at File No. SC02 at 1:29-2:31.) But, a physical barrier remained lacking,
MPD offered no medical assistance to either Alpkenan Dereci or Sinan Narin, and MPD did not
arrest Kheirabadi, Kurd, Tankan, or anyone else in the Anti-Turkey Group whom they had just
witnessed committing assaults on the Pro-Turkey Group, a Turkish security agent, and one of
their own officers. (Id.; see also Ex. 2, ¶¶ 35, 47-50, 54.)
9.

After The First Altercation, Turkish Security Officers And The
Turkish Ambassador Implored U.S. Security Officers To Move The
Anti-Turkey Group Back.

Having heard or witnessed the altercation on Massachusetts Avenue, Turkish security
officers and others awaiting the Turkish President’s arrival exited the Residence to assess the
situation.

Between 4:05 p.m. and 4:13 p.m., numerous individuals pleaded with U.S. law

enforcement officers to move the Anti-Turkey Group, who had already proven their capacity for
violence, a reasonable distance away. (Ex. 6, at File No. SC03 (“they don’t have a permit,” and
“why are you not taking them back”); see also id. at File Nos. SC04, SC05, SC06.) Members of

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the security detail of President Erdogan also spoke with U.S. law enforcement emphasizing the
need to move the protesters farther away to ensure that President Erdogan would be able to enter
the Residence safely. (Id.) It is consistent with standard operating procedure for presidential
protective detail to seek the assistance of local law enforcement to protect the secure zone. (Ex.
2, ¶ 47.) Even Turkey’s Ambassador was forced to leave the safety of the Residence to plead for
this common sense security tactic, without success. (Ex. 6, at File No. SC07 at 2:08-20; see also
id. at File No. SC08 at 0:01-25.) One of the Turkish security officers at least twice told local law
enforcement: “Do you understand my president is coming? If you don’t take, I will take.” (Id. at
File No. SC09 at 0:45-57, 4:35-53.) The MPD officer did not respond at all. A U.S. Secret
Service agent responded: “Yes, sir.” (Id. at 4:35-4:53.) These responses suggested local law
enforcement was unwilling or unable to secure a perimeter or that Turkish security officers had
tacit approval to take action necessary to protect their head of state. (See Ex. 2, ¶ 48.) U.S. law
enforcement took no action to move the Anti-Turkey Group farther away from the Residence
where President Erdogan and senior Turkish ministers were about to arrive, (Ex. 6, at File No.
SC07; see also id. at File No. SC08 at 0:01-25), even though it was their function to neutralize
threats outside the secure zone. (Ex. 2, ¶¶ 25, 48.)
10.

President Erdogan Arrived And Was Held In His Vehicle By U.S.
Secret Service And Turkish Security Pending The Restoration Of
Order.

At approximately 4:12 p.m., President Erdogan’s motorcade arrived at the Residence.
(Ex. 6, at File No. SC05 at 1:01-2:28.) President Erdogan’s vehicle was held in the Residence
driveway and he remained in this vulnerable position where he could see and hear the PKK
supporters in Sheridan Circle in close proximity. He and his security detail no doubt were aware

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of the violence that had just occurred minutes prior. (Id.; see also id. at File No. SC02 at 5:105:25; Ex. 2, ¶¶ 51-57.)
11.

Turkish Security Officers, Perceiving A Threat To Their Protectees,
Took Action To Push Back The Anti-Turkey Group.

At approximately 4:13 p.m., Turkish security officers, facing a compromised security
environment and perceiving a risk to their protectees, exercised their discretion and moved to
reduce the risk to the Turkish President and the ministers, advisors, and diplomats accompanying
him. (Ex. 6, at File No. SC02 at 2:35-3:50; Ex. 2, ¶¶ 25, 51-57.) In so doing, they physically
confronted the protesters, sparking an altercation in which U.S. security officers and civilians
took part. It lasted approximately one minute. (Ex. 6, at File No. SC02 at 2:35-3:50.) The
altercation resulted in the Anti-Turkey Group being dispersed and pushed back from the edge of
Sheridan Circle.

When that occurred, the Turkish President entered the Residence.

(See

generally id. at File No. SC10 (showing President Erdogan in his vehicle during the second
altercation, and emerging among U.S. Secret Service and Turkish security protection after
Kheirabadi and others were removed from close proximity); see also id. at File No. SC02 at
5:10-7:04 (same); Ex. 2, ¶ 57.) The Turkish security officers, though armed, did not draw their
weapons. (See generally Ex. 6, at File No. SC02 at 2:35-3:50.)
12.

The Aftermath.

Following the events, arrest warrants were issued against four civilians from the ProTurkey Group and 15 Turkish security officers. Two of the civilians, Eyup Yildirim and Sinan
Narin, have pleaded guilty to one count of assault each while two others have not yet been
arrested or arraigned. Charges against all but four of the Turkish security officers have been
dropped. Plaintiff Kurd, who grievously injured Alpkenan Dereci with a bullhorn and hurled the
full or frozen water bottle that injured Sinan Narin, was neither arrested nor charged. (See id. at
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File No. SC11 (showing Eyup Yildirim pleading with MPD to arrest the assailant that assaulted
Alpkenan Dereci with the bullhorn). Kheirabadi was charged with assaulting a police officer,
but, inexplicably, the District of Columbia soon abandoned those charges. In arresting Turkish
American Necmi Ayten, who was eventually cleared because he arrived at Sheridan Circle after
the brawl had ended, an MPD officer offered a sworn statement labeling the Pro-Turkey Group
as “radicalized,” (Ex. 9), while casting the Anti-Turkey Group as “peaceful.” (Id.; see also Ex.
11, Ayten Police Aff.) The videos showing Kheirabadi’s assault on a police officer and Kurd’s
hurling of his bullhorn at the opposing group and law enforcement, belie this characterization.
The officer further described those presumed to be Turkish security officers as “Middle Eastern
men,” a meaningless, if not biased characterization. (Ex. 9; see also Ex. 11.) Turkish Americans
consider this narrative and failure of the U.S. to criminally prosecute any of the Anti-Turkey
Group the result of bias.
In subsequent anti-Turkey protests outside the Residence, MPD has consistently deployed
bike rack barricades and kept anti-Turkey protesters generally to the north side of the equestrian
statue in Sheridan Circle, approximately 150 feet from the Residence. There have been no repeat
occurrences of events of the type that occurred on May 16, 2017. (See Ex. 12, Photos of antiTurkey protest on Sheridan Circle, Apr. 24, 2018.)
13.

Expert Analysis Of Former U.S. Secret Service Special Agent In
Charge of Presidential Protective Division, Michael White, Shows
That There Was A Security Void At Sheridan Circle That
Presidential Protective Services Are Trained To Address, And Were,
Using Common Security Tactics.

Michael White is a twenty-six year veteran of the U.S. Secret Service and former Special
Agent in Charge of its elite Presidential Protection Detail. He is one of the world’s most
experienced experts in protective services, including the training and protocols used by

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professional head of state security details throughout the developed world. (See Ex. 2, ¶¶ 2, 725.)
Mr. White has analyzed the video footage of the Incident at Sheridan Circle. (Id. ¶¶ 1, 35.) Mr. White concluded that the security conditions at Sheridan Circle, the violent behaviors of
members of the Anti-Turkey Group, and their display of affiliations with a known terrorist
organization violently hostile to the Turkish government, posed a significant, immediate threat to
President Erdogan’s personal safety that local law enforcement was unwilling or unable to
control. (Id. ¶¶ 31, 34, 49-50.) Mr. White observed that when President Erdogan arrived at the
Residence, the Turkish security officers took action to neutralize the threat of one or more
members of the Anti-Turkey Group breaching the secure perimeter expected for head of state
security, but that local law enforcement failed to create or safeguard, despite being asked
repeatedly to do so. (Id. ¶¶ 47-48, 54.) Mr. White also concluded that the Turkish security
officers’ actions were consistent with standard operating protocols that call for discretionary use
of whatever force is necessary to carry out the primary mission of protecting a head of state from
a legitimately perceived, imminent harm when defensive techniques to stop the advance fail. (Id.
¶¶ 24-25, 58-62.) Mr. White expects the Turkish security officers assigned to presidential
protection would have been trained to assume the potential for an assassination attempt given the
circumstances. (Id. ¶¶ 26-28, 55.)
Mr. White found significant that when President Erdogan arrived, the Turkish security
officers had already witnessed the Anti-Turkey Group engage in numerous “pre-attack”
behaviors that would have put them on high alert of the potential for a violent, possibly deadly,
confrontation in the presence of their protectee. (Id. ¶¶ 36-46, 53.) In Mr. White’s training and
experience, the Anti-Turkey Group repeatedly ignoring police commands to remain on Sheridan

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Circle could be indicators of attempts to either surveil the arrival point for weaknesses or breach
the secure perimeter outside the Residence, or plans to initiate another violent altercation, like the
first altercation which injured two Pro-Turkey Group civilians in the head and face. (Id. ¶¶ 37,
40, 45, 52-55.) Mr. White also found the failure of local law enforcement to move the AntiTurkey Group a safe distance away from the head of state’s arrival point, failure to detain or
arrest the Anti-Turkey Group members who were hurling projectiles (i.e., full or frozen plastic
bottles), spraying unknown substances in the direction of police (a potential biochemical hazard),
and committing assaults, failure to confiscate the weapon (i.e., bullhorn) used in the prior
assaults, and failure to search and confiscate the backpack that Kheirabadi carried, to be matters
of great security concern. (Id. ¶¶ 43-46.) The latter was a serious security failure by local law
enforcement because of the well-known risk that backpacks can be used to carry or conceal IEDs,
that if detonated so close to the arrival point, could have been lethal to the protectee, the
Ambassador, the senior ministers in the delegation, and countless civilians. (Id. ¶ 41.) Another
serious concern was the fact that local law enforcement positioned the Anti-Turkey Group
approximately fifty feet away from the Residence, with a direct line of sight to the arrival point,
without any screening or other visual barriers, placing President Erdogan within “handgun
distance.” (Id. ¶ 35.)
Based on Mr. White’s experience and training, it is his conclusion that President Erdogan
was in an extremely vulnerable safety position when he arrived and was forced to temporarily
remain in his vehicle. (Id. ¶¶ 51-52.) Mr. White opines that President Erdogan’s security detail
made a reasonable decision, given the circumstances, the available intelligence, and lack of
assistance from local law enforcement, not to permit him to exit the vehicle until the Anti-Turkey
Group was under control and the threat neutralized. (Id. ¶¶ 56-57.)

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14.

Plaintiffs’ Contention That The Turkish Government Has A Policy Of
Discriminating Against Kurds Is Grossly Overbroad And
Misinformed.

Plaintiffs’ allegations that “the Turkish state has a long history of discrimination against
and oppression of the Kurdish people” and that it “persecute[s] the Kurdish population” (Am.
Compl. ¶ 45), are as misinformed as they are inaccurate and fail to take into account the vast
majority of Turkish citizens’ rejection of the PKK and its affiliates, who have terrorized the
Turkish state and its people for decades.
As amply described by Professor Hakan Yavuz, the majority of Turkish citizens of
Kurdish origin in Turkey are fully integrated into Turkey’s social, cultural, and political life.
(Ex. 1, ¶ 14.) In Turkey, citizenship is a constitutional right and every citizen is equal before the
law. The PKK, by contrast, is a radical faction, operating under the leadership of Abdullah
Ocalan, who was born in 1948. (Id. ¶ 19.) His goal has been to destroy the Turkish state as well
as traditional Kurdish societal structure, which he has sought to replace with a socialist PanKurdish state. (Id.) Thus, while Ocalan is a Kurd himself, as are tens of thousands of his
followers, the terrorist group cultivated under his ideology has terrorized the Turkish state as well
as all other Kurds who do not ascribe to his and the PKK’s terrorist ideology. (See generally id.
¶¶ 19-31.) And indeed, it is likely that among the Pro-Turkey Group at Lafayette Park and
Sheridan Circle were Turkish citizens of Kurdish origin.

Therefore, Plaintiffs’ sweeping

allegations that President Erdogan’s policies “persecute[ ] the Kurdish population” (Am. Compl.
¶ 45), fail to acknowledge that the Turkish state’s efforts are against the PKK and they are
grounded in national security interests and fighting against terrorism.

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III.

LEGAL STANDARD FOR RULE 12(b)(1) MOTION TO DISMISS.
Under Rule 12(b)(1), when a defending sovereign disputes the factual basis of the court’s

subject matter jurisdiction the “plaintiff bears the initial burden” to overcome the presumption of
sovereign immunity “by producing evidence that an [FSIA] exception applies.” Azima v. RAK
Investment Authority, 305 F. Supp. 3d 149, 159 (D.D.C. 2018) (quoting Helicopter Textron, Inc.
v. Islamic Republic of Iran, 734 F.3d 1175, 1183 (D.C. Cir. 2013)).

Upon the plaintiff’s

production of evidence, the defending sovereign then bears the “burden of persuasion” to show
the alleged exception does not apply. Id. (quoting Helicopter Textron, 734 F.3d at 1183). When
resolving a fact-based challenge to subject matter jurisdiction, “the court may not deny the
motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and disputed
by the defendant. Instead, the court must go beyond the pleadings and resolve any disputed
issues of fact . . . .” Feldman v. Fed. Deposit Ins. Corp., 879 F.3d 347, 351 (D.C. Cir. 2018)
(citation omitted) (quoting Phoenix Consulting, 216 F.3d at 40).
IV.

ARGUMENT.
A.

U.S. LAW MANDATES THE PROTECTION
DIGNITARIES INVITED TO THE U.S.
1.

OF

FOREIGN

By Treaty, The U.S. Is Required To Criminalize Threats Of Attacks
On, And Prevent Attacks On, Internationally Protected Persons
(“IPPs”).

The United States and Turkey are parties to the Convention on the Prevention and
Punishment of Crimes Against Internationally Protected Persons (the “IPP Convention”), a
multi-national treaty borne out of the member states’ recognition that, “crimes against diplomatic
agents and other internationally protected persons create a serious threat to the maintenance of
normal international relations . . . .” Convention on the Prevention and Punishment of Crimes
Against Internationally Protected Persons, Including Diplomatic Agents, Feb. 20, 1977, 28
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U.S.T. 1975. Article 2 of the IPP Convention requires states to make it a crime for persons to
intentionally attack an IPP, their official premises, accommodation, or means of transport, or to
make a “threat to commit any such attack,” or attempt to commit any such attack.” Id. at art. 2.
Article 4 of the IPP Convention requires a receiving state to cooperate in the prevention of such
crimes and take measures to ensure that the Article 2 crimes do not occur in the receiving state:
States Parties shall cooperate in the prevention of the crimes set forth in article 2,
particularly by:
(a)
taking all practicable measures to prevent preparations in their
respective territories for the commission of those crimes within or outside their
territories;
Id. at art. 4 (emphasis added). In sum, Articles 2 and 4 of the IPP Convention establish a plain
and unequivocal obligation for the U.S. to protect foreign dignitaries visiting the U.S. 27
2.

18 U.S.C. §§ 112 And 878 Guide Law Enforcement Officers To
Provide Foreign Officials, Official Guests, And IPPs With A 100-Foot
Zone Of Protection From Threats Or Harassment, Which Was
Eminently Achievable At Sheridan Circle.

Congress enacted 18 U.S.C. §§ 112 and 878 to implement the U.S.’ international
obligation to protect foreign dignitaries visiting the U.S. from acts that threaten the maintenance
of normal international relations.
Section 112(a) broadly prohibits assaults against foreign officials, official guests, and
IPPs, and attacks upon the official premises, private accommodations, and means of transport of
such persons. 18 U.S.C. § 112(a). The provision also criminalizes attempts to commit such
offenses. Id. Notably, neither intent to injure an IPP nor proof of injury is required to be found
guilty of a crime under Section 112(a). See United States v. Gan, 636 F.2d 28, 29-30 (2d Cir.
1980), cert. denied, 451 U.S. 1020 (1981).
27

The IPP Convention also applies to diplomats.
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Section 112(b) prohibits, among other things, (1) harassment or (2) attempts to harass a
foreign official and (3) the congregation of two or more persons within 100 feet of a foreign
official with the intent to harass. 18 U.S.C. § 112(b).28 The term “harass” has been interpreted
to apply to “such activities as may seriously alarm or persecute foreign officials.” CISPES
(Comm. in Solidarity with People of El Salvador) v. F.B.I., 770 F.2d 468, 476 (5th Cir. 1985).
The legislative history of the statute (in its pre-amended form) includes the following example of
individual misconduct criminalized by Section 112(b)(1) and (2):
Engaging in a course of conduct, including the use of abusive language, or
repeatedly committing acts which alarm, intimidate or persecute him which serve
no legitimate purpose;
Senate Report No. 1105, 92d Cong., 2d Sess. 18 (1972), reprinted at 1972 U.S. Code. Cong. and
Adm. News 4316, 4327.29 See also 18 U.S.C. § 878 (making it a crime to knowingly and
willingly threaten to violate Section 112).
Of paramount relevance to the Sheridan Circle Incident is Section 112(b)(3)’s prohibition
on the gathering of more than two people within 100 feet of a foreign official with the intent to
intimidate or harass that official, which unequivocally occurred in Sheridan Circle and on
Massachusetts Avenue on May 16, 2017. See 18 U.S.C. § 112(b)(3). This provision prohibits
persons from gathering, even in the name of “protesting,” within a 100-foot zone of an IPP with
28

This section also prohibits coercion and intimidation of a foreign official and attempts to do
the same. The behavior of the Anti-Turkey Group at Sheridan Circle could as easily fit the
definitions of coercion and intimidation as it does harassment.
29
In contrast, 18 U.S.C. § 111, which prohibits assaults upon U.S. government employees,
requires that the interference with the official be “forcibl[e].” (Emphasis added.) 18 U.S.C. §
112 lacks a “forcible” requirement and, thus, establishes a lower threshold for violation. In this
respect, then, visiting foreign dignitaries are accorded a higher level of protection. Consequently,
one can be guilty of violating Section 112 merely by harassing or interfering with the
performance of a foreign official’s duties, even without resorting to force. Cf. Long v. United
States, 119 F.2d 717, 719 (4th Cir. 1952).

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the intent to harass. Id. at § 112(b)(3). These protections are so important to the smooth
functioning of international relations that the IPP Convention imposes a mandatory obligation on
a “State Party in whose territory the alleged offender is present” to either extradite the offender or
prosecute him. See IPP Convention, at art. 7.
Thus, demonstrations encroaching within 100 feet of an IPP, his or her official premises,
or means of transport must remain peaceful. When demonstrations turn harassing, violent, or
threaten violence in such close proximity to a foreign dignitary, official premises, or means of
transport, “they lose their protected quality as expressions under the First Amendment” and
become criminal acts. Grayned v. City of Rockford, 408 U.S. 104, 116 (1972). In responding to
a constitutional challenge to a similar but more restrictive provision of the D.C. Code prohibiting
the display of banners and placards near foreign embassies, the Supreme Court spoke
approvingly of Section 112 and cited it as an example of careful legislative draftsmanship
designed to withstand First Amendment scrutiny. See Boos v. Barry, 485 U.S. 312, 326 (1988).
See also CISPES, 770 F.2d at 477 (affirming denial of protesters’ motion for TRO seeking
prohibition on enforcement of Section 112 based on First Amendment challenge). 30
3.

U.S. Law Enforcement At Sheridan Circle Ignored The Law
Applicable To Dignitaries.

Based on the events that transpired at Sheridan Circle, it appears MPD was either not
aware of, or not trained to give effect to, or ignored these U.S. international obligations. MPD
took no action to enforce the U.S.’ obligations to afford President Erdogan and his delegation a
100-foot zone free from harassment or attempts to harass. To the contrary, police records show

30

U.S. Dep’t of Justice, Justice Manual, Criminal Resource Manual at 1625 (2018),
https://www.justice.gov/jm/criminal-resource-manual-1625-first-amendment-18-usc-112
(last
visited June 3, 2019), (citing CISPES, 770 F.2d at 477).
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MPD “escorted” the Anti-Turkey Group to a position well within the 100-foot zone that the U.S.
has committed to secure for IPPs. Moreover, despite witnessing Plaintiffs Kheirabadi, Kurd, and
other Anti-Turkey Group members engage in many direct violations of Sections 112 and 878 in
the presence of IPPs that were inside or had emerged from the Residence, no one in the AntiTurkey Group was arrested or removed from the 100-foot zone after the first altercation. 31 Even
after the Incident, the United States Attorney’s Office failed to prosecute any of the numerous
persons associated with the Anti-Turkey Group who the videos show openly violating Sections
112 and 878 for prolonged periods of time. The Turkish head of state, his senior ministers, and
his diplomatic agents, as beneficiaries of and protectees under the IPP Convention, had every
reason to expect U.S. law enforcement would uphold the U.S.’ promise to “prevent preparations”
of the types of acts criminalized by Sections 112 and 878. Their failure to do so left a security
void in contravention of a decades long international commitment the U.S. had made to afford
visiting IPPs, and in particular, heads of state, protection from harassment and threats in close
proximity during official visits. Likely, the Incident at Sheridan Circle would have unfolded
differently if the Anti-Turkey Group had been kept at a distance greater than 100 feet. Indeed, at
subsequent anti-Turkey protests at Sheridan Circle, the United States has kept protesters at a
distance greater than 100 feet from the Residence and there have been zero confrontations. 32

31

Compare with CISPES, 770 F.2d at 470-71, where FBI agents who received tip that protesters
might try to seize the Honduran Consulate told protesters picketing outside that they were
violating Section 112 by their prior conduct of entering the Consul, asking questions challenging
governmental policies, and taking pictures as if to surveil the premises, causing the protesters to
disperse.
32
See supra Ex. 12, Photos of Anti-Turkey Protest on Sheridan Circle, April 24, 2018.
34

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B.

THE FOREIGN SOVEREIGN IMMUNITES ACT DEPRIVES THIS
COURT OF JURISDICTION OVER PLAINTIFFS’ CLAIMS.
1.

Overview Of The FSIA And The Exceptions Claimed By Plaintiffs.

The Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1330 & 1602, et. seq.,
provides “the ‘sole basis’ for obtaining jurisdiction over a foreign sovereign.” Republic of
Argentina v. Weltover, Inc., 504 U.S. 607, 611 (1992); Peterson v. Royal Kingdom of Saudi
Arabia, 416 F.3d 83, 86 (D.C. Cir. 2005) (“[T]here is only one way for a court to obtain
jurisdiction over a foreign state and it is not a particularly generous one—the FSIA.”). It creates
a blanket presumption of immunity, mandating that a “foreign state shall be immune from the
jurisdiction of the courts of the United States.” 28 U.S.C. § 1604. Thus, unless a specific
exception listed in Sections 1605 to 1607 applies, “a federal court lacks subject-matter
jurisdiction over a claim against a foreign state.” Saudi Arabia v. Nelson, 507 U.S. 349, 355
(1993). “[I]mmunity remains the rule rather than the exception.” MacArthur Area Citizens
Ass’n v. Republic of Peru, 809 F.2d 918, 919 (1987) (citation omitted); compare id. with
McMahon v. United States, 342 U.S. 25, 27 (1951) (stating statutes waiving immunity of the
United States “are to be construed strictly in favor of the sovereign”).
The policy underlying foreign sovereign immunity is two-fold. On the one hand, it
recognizes that “[e]very sovereign state is bound to respect the independence of every other
sovereign state.” Underhill v. Hernandez, 168 U.S. 250, 252 (1897); see also Alfred Dunhill of
London, Inc. v. Republic of Cuba, 425 U.S. 682, 703-04 (1976) (noting the “risk of affronting”
sovereignty of a foreign state by “attempt[ing] to pass on the legality of their governmental
acts”). On the other hand, it recognizes that U.S. interests “will be better served in such cases if
the wrongs to suitors, involving our relations with a friendly foreign power, are righted through

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diplomatic negotiations rather than by the compulsions of judicial proceedings.”

Ex parte

Republic of Peru, 318 U.S. 578, 589 (1943).
Plaintiffs allege that the FSIA’s tortious acts exception, 28 U.S.C. § 1605(a)(5), confers
jurisdiction.33 For the reasons discussed below, it does not.
2.

The Tortious Acts Exception To Sovereign Immunity, 28 U.S.C. §
1605(a)(5), Does Not Apply Because Turkey And Its Agents Were
Performing A Discretionary Function.
a.

The Discretionary Function Rule, 28 U.S.C. § 1605(a)(5)(A), Is
An Exception To The Tortious Acts Exception That Protects
Governments From Suits Arising Out Of Actions Based On
Considerations Of Public Policy.

The tortious acts exception to the FSIA provides a potential path for U.S. courts to
exercise jurisdiction over a sovereign’s alleged torts occurring in the United States. See 28
U.S.C. § 1605(a)(5) (hereinafter “Tortious Acts Exception”). Congress, however, explicitly
carved out an exception for claims based on the foreign sovereign’s exercise of a discretionary
function. See 28 U.S.C. § 1605(a)(5)(A) (hereinafter the “Discretionary Function Rule”). The
Tortious Acts Exception and Discretionary Function Rule, read together, state in pertinent part,
that jurisdiction lies in any case:
in which money damages are sought . . . for personal injury . . . occurring in the
United States and caused by the tortious act . . . of that foreign state or of any
official or employee of that foreign state while acting within the scope of his
office or employment . . . except this paragraph shall not apply to—(A) any
claim based upon the exercise or performance or the failure to exercise or perform
a discretionary function regardless of whether the discretion be abused.
33

In the related case Usoyan, et al. v. Turkey, United States District Court for the District of
Columbia, Civ. No. 1:18-CV-1141-CKK (“Usoyan”), the plaintiffs pled two additional FSIA
exceptions to sovereign immunity: waiver, 28 U.S.C. § 1605(a)(1); and international terrorism,
28 U.S.C. § 1605B. In this case, Plaintiffs have not specifically pled any FSIA exception other
than “tortious acts,” so Turkey presumes Plaintiffs contend the “tortious acts” exception is the
only one they will argue is applicable. Turkey nonetheless reserves its right to contest any other
FSIA exception Plaintiffs may later assert based on the same or similar reasons Turkey argued
other FSIA exceptions are not applicable in the Motion to Dismiss it filed in Usoyan.
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28 U.S.C. § 1605(a)(5) (emphasis added).
The Discretionary Function Rule protects “the discretion of the executive or the
administrator to act according to one’s judgment of the best course.” Dalehite v. United States,
346 U.S. 15, 34 (1953) (affirming lower court’s dismissal of damages claims against the United
States arising out of an explosion of fertilizer that had been produced and distributed under the
direction of the U.S. Coast Guard).34 It is a “highly important exception, intended to preclude
any possibility that [the FSIA] might be construed to authorize suit for damages against the
Government growing out of an authorized activity.” Id. at 30 (emphasis added) (citing
legislative history of FTCA, H.R. Rep. No. 79-1287, at 5-6 (1945)). Congress thus “exercised
care to protect the Government from claims, however negligently caused, that affected the
governmental functions.” Id. at 32.
Congress expressed its intent for the FSIA to afford foreign sovereigns the same
Discretionary Function Rule protections as the U.S. The FSIA’s “legislative history counsels that
the [Tortious Acts Exception] should be narrowly construed . . . .

Accordingly, ‘acts or

omissions of a fundamentally governmental nature’ are discretionary functions for purposes of
[section 1605(a)(5)(A)].” MacArthur, 809 F.2d at 921 (citations omitted) (quoting Olsen by
Sheldon v. Gov’t of Mexico, 729 F.2d 641, 645 (9th Cir. 1984), cert. denied, 469 U.S. 917

34

“[G]uidance on what acts should be deemed discretionary for FSIA purposes can be drawn
from decisions construing the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680 (1982) a
statute with analogous language. MacArthur, 809 F.2d at 921-22 (comparing 28 U.S.C. §
2680(a) with § 1605(a)(5)(A)).
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(1984)).35 Thus, the protective shield of sovereign immunity is, by its terms, far-reaching and
unassailable for any claim in tort involving a discretionary function.
b.

Turkey’s Conduct During The Sheridan Circle Incident
Satisfies The D.C. Circuit’s Two-Prong Test For The
Discretionary Function Rule.

The D.C. Circuit follows a two-prong test for determining whether the Discretionary
Function Rule applies. Macharia v. United States, 334 F.3d 61, 65 (D.C. Cir. 2003) (citing
United States v. Gaubert, 499 U.S. 315, 323 (1991) and Berkovitz v. United States, 486 U.S. 531,
536 (1988)). Under this test, immunity is preserved over any claim where (1) a government
employee or agent had discretion to act, rather than there being a statute, regulation or policy
specifically proscribing a course of conduct, and (2) the exercise of that discretion was grounded
in considerations of public policy. Macharia, 334 F.3d at 65.
i.

Turkey Satisfies The First Prong Because Its Employees Had
Discretion To Act.

Under the first prong of the discretionary acts test, courts must look to whether the
government employee’s acts were discretionary in nature and involved an element of judgment or
choice. Macharia, 334 F.3d at 65 (quoting Gaubert, 499 U.S. at 322); see also Berkovitz, 486
U.S. at 538 (advising to look at whether the act was within a “permissible range of choices”
accorded to that employee). For example, “[l]aw enforcement decisions of the kind involved in
making or terminating an arrest must be within the discretion and judgment of enforcing
35

The House Judiciary Committee explained that “[t]he purpose of section 1605(a)(5) is to
permit the victim of a traffic accident or other noncommercial tort to maintain an action against
the foreign state to the extent otherwise provided by law.” H.R. Rep. 94-1487, at 21 (1976).
“Section 1605(a)(5) is directed primarily at the problem of traffic accidents but is cast in general
terms as applying to all tort actions for money damages.” Id. at 20-21. The Committee hoped to
give “American citizens[, who] are increasingly coming into contact with foreign states,” a
means of recovery for nondiscretionary torts like “when a citizen crossing the street may be
struck by an automobile owned by a foreign embassy.” Id. at 6-7.
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officers.” Olaniyi v. District of Columbia, 763 F. Supp. 2d 70, 89 (D.D.C. 2011) (quoting
Deuser v. Vecera, 139 F.3d 1190, 1195 (8th Cir. 1998)) (finding Capitol Police’s arrest and
detention of plaintiff, who appeared as a threat based on a costume he was wearing, as well as
police acts of physically cutting the costume from his body, were discretionary). However, if a
government policy or statute leaves “no room for an official to exercise policy judgment in
performing a given act, or if the act simply does not involve the exercise of such judgment, the
[Discretionary Function Rule] does not bar a claim that the act was negligent or wrongful.”
Berkovitz, 486 U.S. at 546-47.
In Macharia v. United States, this Court found “determinations about what security
precautions to adopt at American embassies” involved elements of choice and judgment and
were therefore discretionary. 238 F. Supp. 2d 13, 23 (D.D.C. 2002); aff’d Macharia, 334 F.3d at
69.

This Court granted a Rule 12(b)(1) motion by the United States invoking sovereign

immunity in response to negligent security and failure to warn claims filed against it by survivors
of the 1998 Al-Qaeda terrorist bombing of the U.S. Embassy in Nairobi. 238 F. Supp. 2d at 18.
This Court held that “determinations about what security precautions to adopt at American
embassies . . . do not involve the mechanical application of set rules, but rather the constant
exercise of judgment and discretion.” Id. at 23 (emphasis added). In support of this finding,
this Court reasoned that the U.S. Department of State Foreign Affairs Manual, Diplomatic
Security (“FAM”) specifically instructs that “when full implementation of outlined standards is
‘impossible or inappropriate,’ foreign service officers should engage in a process of ‘risk
management.’” Id. (citing 12 FAM 6 H 511.4) (brackets omitted). The Court further explained:
This risk management ‘process begins with an assessment of the value of the
assets, the degree of a specific type of threat, and the extent of the vulnerabilities .
. . . A decision is then made as to what level of risk can be accepted and

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which countermeasures should be applied. Such a decision involves a costbenefit analysis, giving decision makers the ability to weigh varying security risk
levels against the cost of specific countermeasures.’
Id. at 23-24 (citing 12 FAM 6 H 511.4) (emphasis added). The D.C. Circuit agreed, finding
embassy security is vested in the discretion of the State Department and affirming dismissal of
the claims. Macharia, 334 F.3d at 66.
As in Macharia, this Court, in cases brought under the Federal Tort Claims Act
(“FTCA”), has repeatedly found governmental decisions concerning the level of security needed
to protect certain persons or facilities are discretionary. See also, e.g., Sledge v. United States,
883 F. Supp. 2d 71, 87 (D.D.C. 2012) (finding the manner in which federal Bureau of Prisons
security officer handled a transfer of an inmate that resulted in a deadly attack on the inmate was
“the type of decision fraught with policy considerations,” and therefore discretionary); see Singh
v. South Asian Society of the George Washington University, 572 F. Supp. 2d 11, 13-14 (D.D.C.
2008) (finding decisions concerning the posting of security guards at the Old Post Office Pavilion
was a discretionary function); Haygan v. United States, 627 F. Supp. 749, 751 (D.D.C. 1986)
(finding decision as to the number of security officers to patrol a government parking lot was
discretionary).
Since the Turkish security officers’ acts involved elements of choice and judgment, they
satisfy the first prong. As illuminated by the expert observations of Michael White, the Turkish
security officers were thrust into a position where they had to make decisions based on riskmanagement that fell squarely within their professional training and discretion. Carrying out the
primary mission of protecting a head of state requires constant monitoring and evaluation of
potential and evolving threats to the head of state’s physical safety, how imminent and credible
identified or perceived threats might be, and the tactics deemed necessary to neutralize those

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threats, given the circumstances and the available intelligence. (See generally Ex. 2, ¶¶ 25-28,
33, 37, 51-57.)
Following the first altercation, the Turkish security officers were keenly aware of the
potential for another violent confrontation by the Anti-Turkey Group, who repeatedly defied
commands by local enforcement not to approach the secure zone outside the Residence. (See
supra §§ II.B.7, 9.) Plaintiffs Kheirabadi and Kurd, along with others in the Anti-Turkey Group,
had already assaulted, or threatened to assault, the Pro-Turkey Group, as well as local law
enforcement, without MPD making any arrests or taking any measures to push back the AntiTurkey Group to a safer distance and physically separate them, as had been done in Lafayette
Park. (See supra §§ II.B.5.c, 8.) Nothing had been done to search the Anti-Turkey Group,
including Kheirabadi’s backpack, or to confiscate Kurd’s bullhorn that he used to severely injure
a civilian in the Pro-Turkey Group. (See Ex. 2, ¶ 55.) Local law enforcement ignored multiple
requests by Turkish security officers, and even the Turkish Ambassador, to move the AntiTurkey Group farther away from the Residence and President Erdogan’s arrival point. (See id. ¶
48.) At the time of President Erdogan’s arrival, the Anti-Turkey Group was approximately fifty
feet away, which is well-within the range of hand guns and explosive devices. (See id. ¶ 35.)
Under these circumstances, and with no assistance from local law enforcement, the
Turkish security officers had to undertake the necessary risk assessment calculations to carry out
their mission to protect their head of state. (See id. ¶ 50.) They were left to weigh the security
risks posed to the President, his senior ministers traveling with him, and his diplomats by
aggressive individuals in close range who had already demonstrated a capacity for violence, and
who had already thrown projectiles and sprayed unknown liquids, and one of whom – Kheirabadi

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– carried a backpack that head of state security detail may perceive as a threat of containing
explosives. (See id. ¶¶ 41, 44, 45, 55.)
The security concerns present at Sheridan Circle were not merely hypothetical given the
hundreds of assassination attempts on President Erdogan’s life, the Anti-Turkey Group’s touting
of flags bearing the image of the PKK’s leader, and the PKK’s terroristic slaughter of tens of
thousands of people. (Ex. 1, ¶¶ 21-31.) In Macharia, victims of an embassy bombing attempted
to sue the United States for providing inadequate security and failing to protect them from
perceived imminent threats. Similarly, here, the Turkish security officers took actions to protect
certain individuals and all others in the public vicinity of a diplomatic edifice, from the risk of
the type of tragedy that befell the victims at the U.S. Embassy in Nairobi. As in Macharia, the
conduct challenged by Plaintiffs is the product of risk management decisions made by Turkish
security officers about how best to protect not only their official diplomatic residence, but also
their President and his senior ministers traveling with him. These are real-time decisions that do
not involve the mechanical application of rules and are decidedly discretionary. See Macharia,
238 F. Supp. 2d at 23.
ii.

Turkey Satisfies The Second Prong Because Its Employees’
Acts Were Grounded In Public Policy.

Under the second prong of the Discretionary Function Rule test, the Court must decide:
‘[W]hether th[e] judgment is of the kind that the discretionary function exception
was designed to shield,’ [ ] “Because the purpose of the exception is to prevent
judicial ‘second-guessing’ of legislative and administrative decisions grounded in
social, economic, and political policy through the medium of an action in tort,’ the
Supreme Court explained, ‘when properly construed, the exception protects only
governmental actions and decisions based on considerations of public policy.
Macharia, 334 F.3d at 66. For example, if a state official, while carrying out the ordinary,
routine duties of his office, negligently collides with another car, his tortious conduct is not

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grounded in public policy decision-making. See Gaubert, 499 U.S. at 325 n.7. The discretion
used to drive a car is separate from, and incidental to, the official mission, and “can hardly be
said to be grounded in regulatory policy.” Id.36
In Macharia, this Court found that the security decisions the Department of State made
concerning the U.S. Embassy in Nairobi were grounded in policy, reasoning in part:
The conduct at issue in this case and the decisions regarding what action to take
related to security clearly are ‘susceptible to policy analysis’ and thus the
discretionary function is applicable . . . . [E]ach of Defendant’s decisions
regarding security involved balancing potential inconvenience to State
Department employees against the perceived security gains that would result from
a safety measure . . . . As risk classification makes a statement about conditions in
the country where the embassy is located, it could also influence United States
relations with that country, and therefore be influenced by the footing on which
the United States seeks to maintain those relations.
Macharia, 238 F. Supp. 2d at 25 (emphasis added).
In a similar vein, the Tenth Circuit held in an FTCA case against the U.S. government
that its nuclear weapon testing activities undertaken in the name of national security were
grounded in policy decisions, and therefore, immune from tort claims, even though the decisions
resulted in mass casualties of U.S. citizens. See Allen v. United States, 816 F.2d 1417, 1424
(10th Cir. 1987). The Discretionary Function Rule precluded government liability for the 500
death and injury claims that resulted from radioactive fallout from open-air atomic bomb tests
conducted in Nevada in the 1950s and 1960s. See id. at 1418. The Tenth Circuit recognized that
the bomb-testing decisions by the President, the Atomic Energy Commission, and those with

36

Protecting foreign states from U.S. courts’ jurisdiction to the same degree afforded the United
States preserves the concept of sovereign equality of states “which, as Article 2, paragraph 1, of
the Charter of the United Nations makes clear, is one of the fundamental principles of the
international legal order.” Jurisdictional Immunities of the State (Germany v. Italy: Greece
intervening), Judgment, I.C.J. Reports 2012, 99 ¶ 57; see The Schooner Exchange v. McFaddon,
11 U.S. (7 Cranch) 116 (1812) (emphasizing the notion of sovereign equality among nations).
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delegated authority were among the most “controversial choices made during” the relevant era.
Id. at 1424. However, the FTCA’s Discretionary Function Rule was held to apply because the
U.S. government’s “decisions expressly balanced public safety against what was felt to be a
national necessity, in light of national and international security.” Id. (emphasis added).
“However erroneous or misguided [the government’s] deliberations may seem today,” the court
concluded that “it is not the place of the judicial branch to now question them.” Id. Allen
illustrates the inviolate sovereign immunity afforded to nations’ highest leaders engaged in
discretionary public policy decisions deemed to be of national security importance.
Decisions whether to pursue, detain, or arrest individuals during a riot or who are near
dignitaries are “susceptible to policy analysis” no less so than the weighty decisions found
discretionary in Allen. In Monarch Ins. Co. of Ohio v. District of Columbia, for example, the
court explained that “[p]olicy considerations . . . pervade every phase of planning and executing a
riot control program.” 353 F. Supp. 1249, 1258 (D.D.C. 1973) (dismissing claims against the
United States as barred by the Discretionary Function Rule), aff’d, 497 F.2d 684, cert. denied,
419 U.S. 1021 (1974). In Olaniyi, for example, the court held that “the decision to detain and
then arrest the plaintiff in the Capitol Building falls well within the scope of the discretionary
function.” 763 F. Supp. 2d at 89 (dismissing detention and false arrest claims for lack of subject
matter jurisdiction under the Discretionary Function Rule). And, decisions regarding arrests are
the kind of government decisions, rife with considerations of public policy, that the judiciary is
not to second-guess. See Shuler v. United States, 531 F.3d 930, 934 (D.C. Cir. 2008).
Protecting a head of state is no less grounded in policy than decisions concerning
embassy security, the level of protection afforded to ordinary persons at government facilities,
and whether to arrest or detain persons due to security concerns. In the United States, through an

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enabling statute, Congress has given the Secret Service wide latitude to protect the President.
See 18 U.S.C. § 3056(a)(1) (U.S. Secret Service “is authorized to protect” the President). A
threat against a president “is qualitatively different from a threat against a private citizen or other
public official,” as is a presidential security officer’s corresponding duty and discretion to guard
against such a threat. Roy v. United States, 416 F.2d 874, 877 (9th Cir. 1969). “A President’s
death in office has worldwide repercussions and affects the security and future of the entire
nation.” Id. “A President not only has a personal interest in his own security, as does everyone,
he also has a public duty not to allow himself to be unnecessarily exposed to danger.” Id.
(emphasis added). Further, as a president’s authority to make discretionary decisions waxes in
areas of national security, those decisions’ “susceptib[ility] to policy analysis” likewise increases.
Gaubert, 499 U.S. at 325.
The Turkish security officers’ conduct satisfies the second policy prong because their
discretionary acts to physically push back and disperse the encroaching crowd were based on
national security policy considerations, principally, a perceived, imminent threat to the head of
state’s and other IPPs’ physical safety. Taking actions to protect a head of state from individuals
reasonably believed to be supporters or affiliates of a terrorist organization are quintessential
government policy functions, and are among the responsibilities designated to the head of state’s
security detail, as is their choice of the means for addressing such a threat. (See Ex. 2, ¶¶ 24-25.)
Security decisions concerning a terrorist threat against a head of state are precisely the kind that
are “susceptible to policy analysis” as they fall squarely within the ambit of national security and
foreign policy under both Turkish and United States law and practice. Gaubert, 499 U.S. at 325.
These decisions involve a real-time balancing of national security, foreign policy, and
intelligence decisions. And, as in Macharia, the security decisions made by the Turkish security

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officers could have, and most certainly did, influence the footing of Turkey’s policy relations
with the United States. See Macharia, 238 F. Supp. 2d at 25.
c.

No Prior Cases Have Evaluated Whether Foreign Security
Agents Taking Protective Measures To Remove Perceived
Imminent Threats To A Head Of State By Apparent Associates
Of An FTO Is A Discretionary Function.

No FSIA cases to date have dealt with a similar, imminent threat posed by supporters or
affiliates of a foreign terrorist organization within close proximity to a head of state, who
moments earlier were engaged in acts of violence in the presence of MPD, without being
arrested, and who were taunting further threats of harassment or violence against IPPs in blatant
violation of 18 U.S.C. § 112. Therefore, the Court should rely exclusively on its application of
the two-prong discretionary acts test in this case of first impression.
For example, Letelier v. Republic of Chile, 488 F. Supp. 665, 673 (D.D.C. 1980), which
holds that a foreign state does not have discretion to commit an illegal act, is no longer good
law.37 Further, in MacArthur, the only D.C. Circuit case that appears to have interpreted the
Discretionary Function Rule with respect to “wrongful acts,” confirmed that the proper
jurisdictional inquiry is whether the governmental acts complained of were discretionary, not
whether they were illegal. See MacArthur, 809 F.2d at 922 n.4. In doing so, the D.C. Circuit
rejected Letelier’s seeming blanket rule that a foreign government lacks the discretion to commit
illegal acts. See id. In MacArthur, the plaintiff relied on Letelier to argue that the Republic of
Peru’s conversion of a residential building into a diplomatic chancery in violation of D.C. zoning

37

Moreover the facts of Letelier, are nothing like this case, because in Letelier, the Republic of
Chile was alleged to have spent months orchestrating the overseas assassination of an IPP with
no connections to known terrorist groups and who, unlike here, did not pose a security threat, let
alone an imminent one, to a head of state within fifty feet of his presence. Id. at 665-66.

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laws was illegal, and thus not exempt under the Discretionary Function Rule. See id. The Court
disagreed. It held that it was “beyond serious question that establishing a chancery in the District
of Columbia to conduct foreign relations is a discretionary public policy decision,” and Peru was
entitled to sovereign immunity, despite its alleged violation of D.C. zoning laws. Id. at 922. The
Court explained that the choice of where to locate the chancery “embodies a political decision
regarding the image that the Peruvian Government seeks to project through the offices it
occupies” and, importantly here, “reflects security considerations that one might presume to be
of interest in the present day.” Id. at 923 (emphasis added). The factual question of whether
Peru’s actions were criminal was not determinative of the threshold jurisdictional question of
Peru’s immunity from suit. The Circuit Court stressed that it “is hardly clear that, even if a
criminal act were shown, it would automatically prevent designation of Peru’s acts as
discretionary.” Id. at 922 n.4.
Risk v. Halvorsen, 936 F.2d 393 (9th Cir. 1991), further illustrates that illegal acts may
nevertheless be discretionary within the meaning of the Discretionary Function Rule. In Risk, the
Ninth Circuit considered claims against Norway stemming from the issuance of travel documents
and travel funds to a Norwegian citizen and her children by a Norwegian diplomat to help them
to leave the United States in violation of a temporary custody order, which constituted a felony
under California law. See id. at 394, 396 n.3 (referencing Cal. Penal Code § 278.5). Citing the
Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, the Court held that the
acts complained of fell expressly within the function of consular officials. See id. at 395-96. The
Ninth Circuit acknowledged that, although the intentional violation of a custody order is a crime
under California law, every conceivably illegal act is not outside protection of the Discretionary
Function Rule. See id. at 397 (referencing MacArthur, 809 F.2d at 922 n.4).

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More recently, in Mohammadi v. Islamic Republic of Iran, 947 F. Supp. 2d 48 (D.D.C.
2013), this Court dismissed various tort claims against Iran. Id. at 54. Though the Tortious Acts
Exception to foreign sovereign immunity was abandoned by the plaintiffs, the Court considered it
in a footnote, recognizing that “whether or not the [exception] applies in the instant case would
depend upon whether the defendants had exceeded the permissible limits of their sovereign
political discretion in harassing the plaintiffs via electronic communications while they were
living in the United States.” Id. at 81 n.4 (emphasis added). This Court in Mohammadi thus
recognized the evolution from Letelier’s conclusion that foreign sovereigns lack the discretion to
commit illegal acts, 488 F. Supp. at 673, to Risk’s acknowledgement that illegal acts may fall
within the Discretionary Function Rule, and ultimately followed Risk. See id. at 81 n.4; see also
Doe v. Federal Democratic Republic of Ethiopia, 189 F. Supp. 3d 6, 27 (D.D.C. 2016)
(concluding, in dicta, that “Congress did not mean to shield ‘discretionary’ acts by foreign states
when those acts involve serious violations of U.S. criminal law,” while dismissing claims on
other grounds) (emphasis added).
Finally, Miango v. Democratic Republic of Congo, 288 F. Supp. 3d 117 (D.D.C. 2018),
appears to be the most recent case to apply the Discretionary Function Rule to intentional tort
claims. In that case, protesters had gathered outside the hotel from which the President of the
Democratic Republic of Congo (“DRC”) was exiting. Members of the President’s entourage
allegedly proceeded to beat the protesters and steal items from the car of one of the plaintiffs.
Plaintiffs filed suit against the DRC for various intentional torts, including assault, battery, and

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conversion. Id. at 124.38 Unlike Turkey here, the DRC did not make an appearance to assert its
immunity, and the District Court entered a default judgment. Id. at 128. The Court can hardly be
said to have addressed the Discretionary Function Rule, only referring to it once in a single
phrase of a single sentence buried in a footnote. In its only mention of the Rule, the Court
cursorily cited, without examination, Letelier’s conclusion that a foreign state does not have
discretion to commit an illegal act, and did not undertake the analysis required by the
discretionary acts test. Id. at 126 n.3.
Thus, despite the limited case law, it is clear that those which have analyzed the FSIA’s
Discretionary Function Rule have followed FTCA precedent and established that it is the scope
of sovereign discretionary authority that matters, not the nature or unlawfulness of the underlying
acts. Any argument that allegedly unlawful acts automatically strip a sovereign of its immunity
must be rejected. (See, e.g., Am. Compl. ¶ 1 (“Plaintiffs seek to hold Turkey accountable for this
outrageous violation of United States, District of Columbia, and international law.”).) And this
makes sense, because “if the scope of an official’s authority or line of duty were viewed as
coextensive with the official’s lawful conduct, then immunity would be available only where it is
not needed; in effect, the immunity doctrine would be ‘completely abrogate[d].’” Martin v. D.C.
Metro. Police Dep’t, 812 F.2d 1425, 1429 (D.C. Cir. 1987) (alteration in original) (quoting
Briggs v. Goodwin, 569 F.2d 10, 15 (D.C. Cir. 1977)); Dalehite, 346 U.S. at 33 (the “abuse of
discretion” clause to the Discretionary Function Rule “connotes both negligence and wrongful
acts in the exercise of the discretion.”). Accordingly, a “foreign state remains largely immunized

38

Plaintiffs also sued the MPD and U.S. Secret Service for their alleged negligence in failing to
protect them. Miango, 243 F. Supp. 3d 113 (D.D.C. 2017) (dismissed for failure to exhaust
remedies under the FTCA, public duty doctrine, and failure to state a claim).
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from torts committed in its governmental capacity.” MacArthur, 809 F.2d at 921 (quoting Olsen,
729 F.2d at 645).
In sum, prior cases have bantered about the concept of whether illegal or wrongful acts
may nevertheless be discretionary, without any clear rule or guidance emerging, other than there
is no blanket rule, and sometimes illegal acts have been found to be discretionary. Importantly
though, none of those cases arose in the context of protective measures employed by a head of
state security detail, faced with protesters who were apparent supporters or affiliates of an FTO
that had carried out a recent string of deadly attacks, who were harassing or threatening to harass
an IPP in close proximity in violation of 18 U.S.C. §§ 112 & 878, and where MPD was unwilling
to remove such persons from the IPP secure zone, despite some of the protesters injuring and
assaulting multiple people in a prior altercation. No such prior case exists. Therefore, the Court
need only rely on the two-prong discretionary acts test, without regard to whether the Turkish
security officers’ acts were arguably criminal, because a core concept of sovereign immunity is to
immunize foreign sovereigns from liability for wrongful conduct.
C.

THE POLITICAL QUESTION DOCTRINE FORBIDS THE COURT
FROM MAKING FINDINGS ABOUT TURKEY’S NATIONAL POLICIES
AND INTERNATIONAL GOALS.

The Amended Complaint does not discuss the Discretionary Function Rule, or allege any
facts indicating why Plaintiffs believe Turkey’s security officers were not performing a
discretionary function entitled to sovereign immunity. Rather, it is riddled with sweeping and
disparaging allegations that Turkey “has a long history of discrimination against and oppression
of the Kurdish people.” (Am. Compl. ¶ 45.) It is largely a political opposition statement against
a sovereign state’s methods of governance in a country situated in one of the most geographically
dangerous locations in the world. (See id. ¶¶ 37-66.) For example, the Amended Complaint

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takes issue with anti-terrorism laws duly passed by the Turkish Legislature, (see id. ¶ 44);
indictments issued by the Turkish Executive, (see id. ¶ 46); the democratic removal of elected
officials from office, (see id. ¶ 47); and Turkey’s banning of terrorist symbols, (see id. ¶ 63).39 It
is not clear how these allegations are relevant to Plaintiffs’ claims other than to use the publicity
of two U.S. lawsuits receiving international media attention as a vehicle to publicize their
negative political opinions of the Turkish government. To the extent Plaintiffs contend that their
political grievances with Turkey are legally significant, the Political Question Doctrine forbids
the Court from engaging in such an inquiry.
“It is not [the judiciary’s] place to speak for the U.S. Government by declaring that a
foreign government is at fault for [human rights violations]. Any such policy condemning the []
regime must first emanate from the political branches.” Alperin v. Vatican Bank, 410 F.3d 532,
561 (9th Cir. 2005). To request from the judiciary a declaration regarding a foreign country’s
“political status . . . certainly raises” a nonjusticiable political question. Zivotofsky ex rel.
Zivotofsky v. Clinton, 566 U.S. 189, 197 (2012).
Absent an otherwise impermissible judicial finding on Turkey’s national policies
concerning civil discourse, the Amended Complaint is reduced to allegations of this spontaneous,
unplanned, and isolated incident. Cf. People’s Mojahedin Org. of Iran v. United States Dep’t of

39

Banning symbols associated with terrorist organizations is not uncommon in other countries
facing serious threats of domestic terrorism. Germany also bans red, yellow, and green flags that
symbolize the PKK. See Wladimir van Wilgenburg, German court increases fine for activist
who
waved
Kurdish
group’s
flag,
KURDISTAN
24
(Nov.
13,
2018),
http://www.kurdistan24.net/en/news/5857967b-4c6e-4240-b79b-430ea0a050c0 (last visited June
3, 2019). Even in the U.S., the U.S. House of Representatives passed an amendment banning
confederate flags from being displayed on flag poles in Arlington National Cemetery. See House
Votes to Ban Confederate Flags on VA Cemetery Flagpoles, NBC (May 19, 2016),
https://www.nbcnews.com/storyline/confederate-flag-furor/house-would-ban-confederate-flagsva-cemetery-flagpoles-n576906 (last visited June 3, 2019).
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State, 182 F.3d 17, 23-24 (D.C. Cir. 1999) (ignoring the portion of the complaint presenting a
political question). Plaintiffs invite the Court to wander into a nonjusticiable political thicket and
announce, as a finding of fact, that Turkey violently and systemically oppresses particular ethnic
groups and those that oppose President Erdogan. (See Am. Compl. ¶¶ 45-50.) The Court must
decline the request pursuant to the political question doctrine.
The Court confronts a nonjusticiable political question where any one of the following
six factors is present:
[1] a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or [2] a lack of judicially discoverable and
manageable standards for resolving it; or [3] the impossibility of deciding without
an initial policy determination of a kind clearly for nonjudicial discretion; or [4]
the impossibility of a court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or [5] an
unusual need for unquestioning adherence to a political decision already made; or
[6] the potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
bin Ali Jaber v. United States, 861 F.3d 241, 245 (D.C. Cir. 2017) (alterations in original)
(quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). Factors 1, 2, 3, 4, and 6 are present here.
1.

Factors 1 And 6: Constitutional Commitment To A Coordinate
Political Department, And Potentiality Of Embarrassment From
Multifarious Pronouncements.

Speaking on behalf of the federal government regarding a foreign state’s perceived
national policies and goals is a function constitutionally committed to the Executive Branch. The
Constitution distributes the powers of the federal government over external affairs between the
Executive and the Legislative Branches, but “in foreign affairs the President has a degree of
independent authority to act.” American Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003).
Article II of the Constitution provides that “[t]he executive Power shall be vested in a President
of the United States of America.” U.S. Const. art. II, § 1, cl.1. “[T]he historical gloss on the

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executive Power vested in Article II of the Constitution has recognized the President’s vast share
of responsibility for the conduct of our foreign relations.” Garamendi, 539 U.S. at 414 (internal
quotation marks omitted) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 61011 (1952)). The President has “plenary and exclusive power . . . as the sole organ of the federal
government in the field of international relations.” United States v. Curtiss-Wright Exp. Corp.,
299 U.S. 304, 320 (1936). In addition, the Constitution grants to the President alone the
authority to “receive Ambassadors and other public Ministers.” U.S. Const. art. II, § 3.
With respect to Turkey, the U.S. President is actively and publicly engaged in performing
his unique constitutional duty to conduct foreign relations. Recently, the U.S. Department of
State affirmed that Turkey is:


“a key NATO Ally and critical regional partner,”



“NATO’s vital eastern anchor,”



“engaged in intensive efforts to defeat terrorist organizations both inside and
outside its borders, including the Kurdistan Workers’ Party (PKK),”



“a vital member of the Defeat ISIS Coalition,”



“critical in the effort to degrade and ultimately destroy ISIS in Syria and Iraq,”



“contribut[ing] to international security alongside U.S. Forces in Afghanistan, the
seas bordering Somalia, and in the Mediterranean [and] borders Greece, Bulgaria,
Georgia, Armenia, Azerbaijan, Iran, Iraq, and Syria,” and



“a key partner for U.S. policy in the [Middle East] region.”40

By answering the political questions Plaintiffs implicitly raise, “the court would directly
contradict the Executive, which has formally decided to take [a] position on the question” of U.S.
foreign policy toward Turkey and Turkish foreign policy toward the U.S. Al-Tamimi v. Adelson,
916 F.3d 1, 13 (D.C. Cir. 2019) (finding a nonjusticiable political question where the Executive

40

U.S. Dep’t of State, Bureau of European and Eurasian Affairs, U.S. Relations With Turkey
(Mar. 27, 2019), https://www.state.gov/r/pa/ei/bgn/3432.htm (last visited June 3, 2019).
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formally took “no position” on the issue, let alone a position that is at odds with the conclusion
Plaintiffs’ ask the court to reach). Judicially-issued policy decisions about the state of U.S.–
Turkey relations and Turkey’s global and domestic policies and goals are “determination[s] of a
kind clearly for nonjudicial discretion.” bin Ali Jaber, 861 F.3d at 245. This Court cannot make
those determinations without expressing a lack of respect for a coordinate branch of the federal
government, thus implicating the first Baker factor. The Amended Complaint essentially asks
the Court to invade the Executive Branch’s deliberate foreign relations decisions and diplomatic
initiatives by proclaiming that Turkey employs repugnant national policies and possesses an
institutional bias against Kurdish people. (See Am. Compl. ¶¶ 45-50.) The first Baker factor
prohibits the Court from entertaining those issues.
Moreover, this case implicates the sixth Baker factor in that Plaintiffs seek a
pronouncement from the Court which, if inconsistent with the Executive Branch’s substantial
pre-existing body of public statements about U.S.–Turkey relations, could cause embarrassment
to the Executive and/or the Judicial Branches. It is hard to image how the Court could answer
questions about Turkish policy without risking interference with, and thereby dilution of, the
Executive’s position on U.S.–Turkey relations.
2.

Factor 2: Lack Of Judicially Discoverable And Manageable
Standards.

There are no judicially discoverable and manageable standards for resolving Plaintiffs’
allegations that Turkey “has a long history of discrimination against and oppression of the
Kurdish people,” (Am. Compl. ¶ 45), the Incident “at Sheridan Circle is Endemic of Bias Against
the Kurds,” (id. ¶¶ 45-50), and that Turkey’s “policies and procedures [] restrict fundamental
freedoms,” (id. ¶ 39).

If this Court adopts Plaintiffs’ novel and federally unrecognized

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description of Turkey’s national “policies and practices against Kurds,” (id. ¶¶ 45-50), it would
be formulating national policy, a task that is “not legal in nature,” and for which the courts are
“fundamentally underequipped” to perform. El-Shifa Pharm. Indus. Co. v. United States, 607
F.3d 836, 844 (D.C. Cir. 2010) (quoting Japan Whaling Assoc. v. Am. Cetacean Society, 478
U.S. 221, 230 (1986)). There are no “manageable standards to channel any judicial inquiry” into
“strategic choices directing the nation’s foreign affairs.” Id. at 843 (citing Nixon v. United States,
506 U.S. 224, 229-29 (1993)).
The recent decision Al-Tamimi provides good guidance on the manageable standards
inquiry. In Al-Tamimi, when faced with adjudicating the question “whether Israeli settlers are
committing genocide,” the court concluded that there were judicially manageable standards for
deciding the issue because the Alien Tort Statute, the basis for the plaintiffs’ claims, defined
“genocide.”

916 F.3d at 11 (citing the United Nations Convention on the Prevention and

Punishment of the Crime of Genocide art. 2, Dec. 9, 1948, 78 U.N.T.S. 277, 280). “Thus, the
ATS—by incorporating the law of nations and the definitions included therein—provides a
judicially manageable standard to determine whether Israeli settlers are committing genocide.”
Id. at 11-12. But cf., e.g., Alperin, 410 F.3d at 561 (holding that issues involving condemnation
of a foreign regime’s wartime conduct are nonjusticiable).
Plaintiffs’ contentions about Turkey’s national policies, on the other hand, cannot be
resolved by applying a statutory definition to knowable facts.

For example, the Amended

Complaint alleges that Turkey disproportionately uses excessive force “in South-East Turkey,
which is majority Kurdish.” (Am. Compl. ¶ 49.) There are no judicially manageable standards
for resolving a dispute about whether Turkey uses “excessive” force along its southeastern
border, which is its longest border which abuts Syria where the YPG, the PKK’s alter ego in

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Syria, operates. (Ex. 1, ¶¶ 40-48.) Syria has been in a state of civil war since March 2011, and
the vast majority of that fighting has occurred on or near Turkey’s southeastern border. (Id. ¶
49.) The long-time seat of the so-called ISIS caliphate, Raqqah, is just fifty miles from the
Turkish border (id.), and ISIS terrorist attacks in Turkey have killed more than 300 people since
2013 (id. ¶ 52). Turkey has also accepted more than 3.6 million Syrian refuges entering through
the southeastern border. (Id. ¶ 53.) In light of these facts, this Court is certainly not in any
position to judge, critique, or criticize the Turkish government’s security recourse along its
southeast border. More importantly, these facts preview how ill-equipped a U.S. judicial trier of
fact is to weigh in on the reasonableness of Turkey’s border security measures and related
national policies.
Nor are there any workable standards for adjudicating the Amended Complaint’s parade
of similarly inflammatory, misleading, and factually unsupported allegations. This Court would
have to hold hundreds of evidentiary hearings and review scores of evidence involving decades
of Turkey’s socio-political history and role in the Middle East, often with no ability to obtain
testimony or discovery from foreign witnesses, to resolve issues like the credibility of
assassination attempts41 and whether Turkey is responding appropriately to that constant threat.
Such an unwieldy exercise is precisely the type of meddling in U.S. international relations the
political question doctrine is designed to prevent. Accordingly, the Court must decline to decide
these questions under the second Baker factor. See, e.g., Doe I v. State of Israel, 400 F. Supp. 2d
86, 112 (D.D.C. 2005) (declining to decide whether “Israel’s self-defense policies are tantamount
to terrorism” because the issue is “peculiarly volatile, undeniably political, and ultimately
nonjusticiable”).
41

See supra § II.B.2 (discussing assassination attempts).
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Furthermore, the U.S. judiciary is not equipped to judge a presidential security team in
the discharge of sensitive executive functions. Questions such as whether a particular group or
person poses a threat to a head of state’s life or physical safety that is likely or imminent are
decisions informed by that foreign state’s intelligence, foreign policy, and security
considerations. For example, in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010),
individuals were charged under 18 U.S.C. § 2339B for providing material support to the PKK
and another designated terrorist group.42 The Supreme Court accepted the Executive Branch’s
determination that the defendants’ facially lawful, nonviolent support of the terrorist organization
nonetheless contributed to violent terrorist activity. Id. at 33-34. The Court explained that
“when it comes to collecting evidence and drawing factual inferences in [the national security
and foreign relations] area, ‘the lack of competence on the part of the courts is marked.’” Id. at
34 (quoting Rostker v. Goldberg, 453 U.S. 57, 65 (1981)). “One reason for that respect [for the
Executive] is that national security and foreign policy concerns arise in connection with efforts to
confront evolving threats in an area where information can be difficult to obtain and the impact
of certain conduct difficult to assess.” Id.
Finally, the Court rejected the need for “specific evidence” and hard proof that the
defendants’ alleged activities would support PKK terrorist attacks, considering such a
requirement to be “dangerous.” Id. Rather, “[i]n this context, conclusions must often be based
on informed judgment rather than concrete evidence, and that reality affects what we may
reasonably insist on from the Government.” Id. at 34-35.

42

The Supreme Court acknowledged that the PKK is a “deadly group[]” that by 2010 had
claimed 22,000 lives. Id. at 29-30.
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3.

Factors 3 and 4: The Prudential Factors.

The third and fourth Baker factors “are closely related in that they are animated by the
same principle: as a prudential matter, the Judiciary should be hesitant to conflict with the other
two branches.” Al-Tamimi, 916 F.3d at 12 (citing Baker, 369 U.S. at 217). The Court cannot
decide issues of Turkey’s national policies without running afoul of this prudential principle.
4.

The D.C. Circuit’s Functional Approach To The Political Question
Doctrine.

Since Baker, the D.C. Circuit has adopted a “functional approach” to the political
question doctrine. bin Ali Jaber, 861 F.3d at 246. Under that approach, nonjusticiable claims are
“those controversies which revolve around policy choices and value determinations,” id. at 245
(quoting Japan Whaling, 478 U.S. at 230), while justiciable claims present “purely legal issues,”
id. at 246 (quoting El-Shifa, 607 F.3d. at 842). For example, a court may properly decide
whether the government had legal authority to order a drone strike. The court cannot, however,
decide whether the strike was factually justified. See id. In this case, Plaintiffs impermissibly
ask the Court to declare that Turkey “has a long history of discrimination against and oppression
of the Kurdish people” (Am. Compl. ¶ 45), and violently and systemically oppresses those that
oppose President Erdogan and particular ethnic groups. (See id. ¶¶ 45-50.)
The court declined to decide a similar question in Wultz v. Islamic Republic of Iran, 755
F. Supp. 2d 1 (D.D.C. 2010). In Wultz, a Palestinian suicide bomber attacked a restaurant in
Israel killing an American citizen. Id. at 18. After the bombing, the decedent’s estate sued the
Bank of China (“BOC”) on the grounds that BOC knowingly facilitated international wire
transfers to the Palestinian Islamic Jihad for the purpose of planning, preparing for, and
executing terrorist attacks. Id. BOC moved to dismiss arguing, in part, that the entire case was
nonjusticiable because it raised inextricable political questions about the “political policies and
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goals of the Chinese government with respect to other foreign powers, . . . its relationship to
Chinese citizens and corporations in connection with its policies, . . . and the Chinese
government’s alleged disregard of Israeli government concerns about terrorism . . . .” Id. at 26
(quoting BOC’s Mot. to Dismiss at 9-10).
The court reasoned it could hear the case, but only because the plaintiffs “do not ask the
Court to say anything at all with respect to the actual policies or goals of China,” or “ask this
court to ‘pass judgment’ on whether those policies are ‘valid or invalid, good or evil.’” Id.
(quoting Pl.’s Opp’n at 41). Rather, the plaintiffs “merely ask[ed] the Court to determine
whether, as a matter of fact, China received certain information from Israel.” Id. The court
concluded that the factual issues were extricable from questions of China’s political policies and
goals, the resolution of which would invoke the political question doctrine. Id.
Plaintiffs in this case, unlike those in Wultz, seek far more than mere adjudication of
discoverable or knowable facts. Plaintiffs invite the Court to independently categorize and
classify Turkey’s domestic and foreign “policies and procedures.” (Am. Compl. ¶ 39.) Not only
is there a “lack of judicially discoverable and manageable standards” for independent judicial
classification of a foreign sovereign’s national policy, bin Ali Jaber, 861 F.3d at 245 (quoting
Baker, 369 U.S. at 217), doing so will require the Court to intrude on the Executive Branch’s
foreign policy prerogatives and interfere with U.S. foreign relations by contravening the
Executive Branch’s constitutionally exclusive authority to manage the United States’ relationship
with its critical NATO ally. Either of those obstacles alone is sufficient to bar this Court’s
resolution of the issue. See id.
The Amended Complaint alleges that as President Erdogan approached Sheridan Circle, a
Turkish security officer told an MPD officer: “you need to take [the crowd]” and “if you don’t, I

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will.” (Am. Compl. ¶ 74.) Another Turkish security officer told the U.S. Secret Service: “We
are waiting [for] you to take them out, because President [Erdogan] is coming.” (Id. (alteration
in original).) Even the Turkish Ambassador pleaded with MPD officers to push the crowd back
to a safe distance. (See id. ¶ 75.) Turkey’s actions were thus objectively focused solely on
clearing a safe zone for its head of state and senior ministers and resolving a reasonably
perceived imminent security threat that was local and did not transcend national boundaries. “As
between that ‘obvious alternative explanation for’ [Turkey’s] conduct, and the purposeful,
invidious discrimination the [Plaintiffs] ask [the Court] to infer, discrimination is not a plausible
conclusion.” American Federation of State, Country, Mun. Employees Local 2401 v. District of
Columbia, 796 F. Supp. 2d 136, 141 (D.D.C. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 682
(2009)).
D.

THE DOCTRINE OF INTERNATIONAL COMITY FAVORS DISMISSAL
OF PLAINTIFFS’ CLAIMS.

Plaintiffs’ claims should be rejected under the doctrine of international comity. Comity
“is a doctrine of deference based on respect for the decisions of foreign sovereigns.” United
States v. One Gulfstream G-V Jet Aircraft, 941 F. Supp. 2d 1, 8 (D.D.C. 2013) (citing United
States v. Kashamu, 656 F.3d 679, 683 (7th Cir. 2011)). “To permit the validity of the acts of one
sovereign state to be reexamined and perhaps condemned by the courts of another would very
certainly imperil the amicable relations between governments and vex the peace of nations.”
Oetjen v. Central Leather Co., 246 U.S. 297, 304 (1918). The doctrine, thus, is “a ‘golden rule
among nations—that each must give the respect to the laws, policies and interests of others that it
would have others give to its own in the same or similar circumstances.’” Gulfstream, 941 F.
Supp. 2d at 8 (quoting Mich. Cmty. Servs., Inc. v. NLRB, 309 F.3d 348, 356 (6th Cir. 2002)).

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Chief among these concerns for respecting a coequal sovereign state is the protection of
its head of state when traveling abroad.

This concern is particularly acute for the U.S.

Government, which demands unparalleled cooperation from its host countries.

As former

President Obama cautioned in his veto statement for the Justice Against Sponsors of Terrorism
Act:
[R]eciprocity plays a substantial role in foreign relations, and numerous other
countries already have laws that allow for the adjustment of a foreign state’s
immunities based on the treatment their governments receive in the courts of the
other state.
Veto Message from the President, S.2040 (Sept. 23, 2016). This Court should abstain from
allowing the “validity of the acts of [Turkey] to be reexamined and perhaps condemned,” for
doing so “would very certainly imperil the amicable relations between governments and vex the
peace of nations.” Oetjen, 246 U.S. at 304. The risk of assassination for Turkey’s and the
United States’ heads of state is acute and ever present; the U.S. demands far-reaching security
protections for its head of state and government officials within Turkey; in the past decade
alone, Turkish security guards have died protecting the U.S. embassy and consulates in Turkey
from terrorist attacks. (See Ex. 1, ¶¶ 8, 27-30, 34.) The inaction of MPD at Sheridan Circle
constituted a failure to reciprocate the same protections afforded to U.S. officials in Turkey.
The apparent failures by MPD upended the delicate reciprocity between the U.S. and Turkey and,
therefore, for reasons of international comity, this Court should defer to the political branches of
government to resolve the consequences.

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1.

Assassination Attempts Are A Constant Reality For A Traveling
President.

Assessing whether a target is a threat to the president is different than assessing other
forms of violence, and persons who pose an actual threat to a president often do not make threats,
especially direct threats.43
For example, in April 2009, ahead of President Obama’s visit to Turkey where he held
bilateral talks and attended the Alliance of Civilizations Summit, Turkish security forces foiled
an assassination plot by a Syrian permanent resident of Turkey planning to pose as an Al Jazeera
reporter.44 And in May 2005, just as President Bush began delivering a speech in Tbilisi,
Georgia, Vladimir Arutyunian threw a live grenade at the podium, landing 61 feet from the
President and First Lady.45

It is the duty and expertise of presidential security details to

anticipate and neutralize threats, whether they are expressly pronounced in advance or identified
in the moment through the experience and expertise of the presidential security detail. (See also
Ex. 2, ¶¶ 22-25, 33.)
2.

U.S. Secret Service Demands Heavy Security Cooperation From Its
Host State.

The United States is keenly aware of the increased vulnerability of a U.S. President
traveling abroad. This in turn leads U.S. security officials to demand extensive cooperation,
security measures, and manpower from its host country. President Trump’s 2018 and 2019 visits
43

See Robert A. Fein and Bryan Vossekuil, A Guide for State and Local Law Enforcement
Officials, U.S. Dep’t of Justice, Protective Intelligence & Threat Assessment Investigations (July
1998), https://cryptome.org/assassins.htm (last visited June 3, 2019).
44
Ed Henry, Plot to assassinate Obama foiled in Turkey, CNN (Apr. 6, 2009),
http://www.cnn.com/2009/POLITICS/04/06/turkey.assassination.plot/index.html (last visited
June 3, 2019).
45
Federal Bureau of Investigation, The Case of the Failed Hand Grenade Attack: Man Who
Tried to Assassinate President Convicted Overseas (Jan. 11, 2006), https://archives.fbi.gov/
archives/news/stories/2006/january/grenade_attack011106 (last visited June 3, 2019).
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to London have involved all-encompassing security precautions to ensure that protesters and
supporters alike are kept at distances far beyond 100 feet of the President at all times. For both
visits a multi-million dollar “ring of steel” was erected around the part of Regent’s Park on which
the U.S. Ambassador’s residence sits,46 roads were closed to the public, and thousands of U.K.
police officers tasked.47 In particular, access to the area around the U.S. Ambassador’s residence
for the 2019 visit has been controlled via full-height turnstiles. 48 This was in addition to the many
U.S. special agents, rooftop snipers, and counter-terrorism police brought in from the United
States to secure the President.49
President Obama’s 2009 visit, as well as his visit to Turkey in 2015 for the G-20 summit
meeting, also demanded heavy security not only around the U.S. Embassy Residence in Ankara
but any place near to where the President would be. On these visits, air traffic was suspended
over areas where the President would be, U.S. security officers set up extensive inspection
stations to screen all reporters and other persons who would be in the same vicinity as the

46

Alexander Robertson, Trump ruined my picnic!: The moment two Osprey helicopters fly over
Regent’s Park in London as $40m ‘ring of steel’ takes shape ahead of US President’s three-day
visit, DAILY MAIL (July 9, 2018), https://www.dailymail.co.uk/news/article-5934249/Ospreyhelicopters-fly-Regents-Park-London-ahead-Trump-three-day-visit.html (last visited June 3,
2019).
47
Justin Davenport, Donald Trump protests: Massive security operation begins with '250,000'
protesters set to descend on London, Evening Standard (June 3, 2019),
https://www.standard.co.uk/news/uk/donald-trump-protests-massive-security-operation-beginswith-250000-protesters-set-to-descend-on-a4157766.html (last visited June 3, 2019).
48
Darren Boyle, Trump gets his wall! US Ambassador's residence is surrounded by a ring of
steel as security fences are erected ahead of President's state visit to Britain, DAILY MAIL (June
1, 2019), https://www.dailymail.co.uk/news/article-7093803/Ring-steel-Ambassadors-residenceahead-Trump-visit.html (last visited June 3, 2019).
49
Holly Ellyatt, The UK is spending millions on security for Trump’s controversial visit, CNBC
(July 12, 2018), https://www.cnbc.com/2018/07/12/uk-spending-millions-on-security-for-trumpscontroversial-visit.html (last visited June 3, 2019).
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President, roads were blocked and traffic stopped in areas around his location at all times. 50 Over
8,800 Turkish policemen were deployed to ensure Obama’s security during his 2009 visit. 51 At
the request of the United States, all persons, supporters and protesters alike, were all kept at a
great distance from the U.S. President at all times.52 (See also Ex. 2, ¶¶ 19, 20-21.)
Such methodical or organized security apparently was lacking as President Erdogan
departed the White House and arrived at the Residence where he faced an angry and encroaching
crowd, sympathetic to a U.S.-designated FTO and which had engaged in violence moments
before. Turkey takes every measure so that U.S. Presidents’ security details are not faced with
tough discretionary decisions of the type the Turkish agents faced in Sheridan Circle.
3.

Turkish Security Officers Have Died Protecting U.S. Missions.

Turkish security officers have died protecting U.S. missions in Turkey. In 2008, at the
U.S. Consulate in Istanbul, three Turkish security officers died in a shootout defending the
Consulate after a group of men with concealed weapons approached the entrance and began
shooting.53 In 2013, a man walked up to the entrance of the U.S. Embassy in Ankara and
detonated an explosives-laden vest. Just before doing so, however, a Turkish security officer
threw himself on the suicide bomber to blunt the impact of the explosion and protect the
50

See Tight Security measures applied for Obama’s one-night stay at G-20 Summit in Turkey,
HURRIYET DAILY NEWS (Nov. 17, 2015), http://www.hurriyetdailynews.com/tight-securitymeasures-applied-for-obamas-one-night-stay-at-g-20-summit-in-turkey-91272 (last visited June
3, 2019).
51
Obama due to arrive in Ankara for symbolic two-day Turkey visit, HURRIYET (Apr. 5, 2009),
http://www.hurriyet.com.tr/gundem/obama-due-to-arrive-in-ankara-for-symbolic-two-dayturkey-visit-11368320 (last visited June 3, 2019).
52
Antalya air traffic stopped for Obama’s departure from the G20 Summit, DAILY SABAH (Nov.
16,
2015),
https://www.dailysabah.com/turkey/2015/11/16/antalya-air-traffic-stopped-forobamas-departure-from-the-g20-summit (last visited June 3, 2019).
53
6 die in attack on U.S. Consulate in Istanbul, N.Y. TIMES (July 9, 2008),
https://www.nytimes.com/2008/07/09/world/europe/09iht-turkey.4.14369483.html (last visited
June 3, 2019).
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Embassy.54 In 2015, Turkish security officers defended the U.S. Consulate in Istanbul from an
attack by two female members of the Revolutionary People’s Liberation Party-Front (Turkish
acronym, “DHKP-C”), a U.S.-designated terrorist group that was also responsible for the 2013
attack on the U.S. Embassy in Ankara.55 (See Ex. 1, ¶ 8.)
4.

Security For Turkey’s Head Of State At Sheridan Circle.

According to former U.S. Assistant Secretary of State for European Affairs, Wess
Mitchell, Turkey has “suffered more casualties from terrorism in the past several years than any
other [U.S.] Ally . . . .”56 Turkey’s national security interest in heightened security for its
traveling officials cannot be understated. Physical injury to the Turkish head of state at the hands
of a PKK member, sympathizer, or associate in the U.S. would surely serve the PKK’s nefarious
purposes by destabilizing Turkey–U.S. relations.
These threats to President Erdogan, which may have been beyond the comprehension of
MPD in May of 2017, are very real. Just months after the Sheridan Circle Incident, in December
2017, Greek counter-terrorism police foiled an attempt by members of the DHKP-C (the terrorist
group that carried out a suicide attack at the U.S. Embassy in Ankara) to assassinate President
Erdogan during his visit to Athens by throwing hand grenades, Molotov cocktails, and rockets at

54

Tim Arango and Sebnem Arsu, Suicide Blast Kills U.S. Embassy Guard in Turkey, N.Y. TIMES
(Feb. 1, 2013), https://www.nytimes.com/2013/02/02/world/europe/2-dead-in-suicide-bombingat-us-embassy-in-turkey.html (last visited June 3, 2019).
55
Yesim Dikmen and Seyhmus Cakan, U.S. consulate in Turkey targeted as wave of attacks kills
9, REUTERS (Aug. 10, 2015), https://www.reuters.com/article/us-turkey-usa-attack/u-s-consulatein-turkey-targeted-as-wave-of-attacks-kills-9-idUSKCN0QF0DT20150810 (last visited June 3,
2019).
56
Testimony for Assistant Secretary Wess Mitchell, House Foreign Affairs Committee Hearing
on “U.S. Policy Toward a Turbulent Middle East” (Apr. 18, 2018), https://docs.
house.gov/meetings/FA/FA00/20180418/108182/HHRG-115-FA00-Wstate-MitchellA-2018041
8.pdf (last visited June 3, 2019).
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his official car.57 The un-permitted Sheridan Circle protesters were in close enough proximity to
President Erdogan to have done the same. (See Ex. 2, ¶¶ 51, 56.) Understanding the persistence
of this threat sheds light on the Incident at Sheridan Circle on May 16, 2017.
Prior to President Erdogan’s arrival at the Residence, D.C. local police escorted a crowd
within fifty feet of the Residence without warning to Turkish security. The crowd did not have
an assembly permit; violated federal law prohibiting the harassment of IPPs within 100 feet of
diplomatic or consular premises, see 18 U.S.C. § 112(b), and included apparent supporters or
affiliates of a terrorist organization that has been targeting the Turkish state for decades and had
carried out numerous deadly attacks in Turkey just months earlier. See supra § II.B.5.a. The
local police were deaf not only to the criminal threats, harassment and attempts to intimidate
Turkish officials by protesters spoken in the Turkish language, but apparently dismissed the
Turkish security officers’ and Ambassador’s legitimate pleas to push back the throng of agitators
who had hurled the bullhorn and two plastic bottles of liquid, and were blatantly violating federal
criminal law that is designated to protect foreign dignitaries from precisely this type of security
risk. 18 U.S.C. § 112. (See Am. Compl. ¶ 75; see also Usoyan Compl. ¶¶ 33-40 (acknowledging
efforts by Turkish authorities to request that the protesters be moved).)
For reasons of international comity, therefore, this Court should defer to the political
branches of government to resolve this dispute.

57

Arrested DHKP-C militants plotted to assassinate Erdoğan in Athens: Greek media,
HURRIYET DAILY NEWS (Dec. 18, 2017), http://www.hurriyetdailynews.com/arrested-dhkp-cmilitants-plotted-to-assassinate-erdogan-in-athens-greek-media-124323 (last visited June 3,
2019).
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E.

28 U.S.C. § 1350
JURISDICTION.

DOES

NOT

CONFER

SUBJECT

MATTER

The alien Plaintiffs in this suit allege jurisdiction over Turkey pursuant to the Alien Tort
Statute, 28 U.S.C. § 1350 (the “ATS”). (Am. Compl. ¶ 2, Count VI.) The ATS states in its brief
entirety, “The district courts shall have original jurisdiction of any civil action by an alien for
a tort only, committed in violation of the law of nations or a treaty of the United States.” 28
U.S.C. § 1350. Plaintiffs allege that assaults and batteries “were committed in violation of the
prohibition in international law against foreign states exercising their enforcement jurisdiction in
the territory of another State and interfering in the internal affairs of another State.” (Id. ¶ 262.)
Plaintiffs’ attempt to bring separate violation of international law claims under the ATS,
however, must be rejected under controlling Supreme Court precedent interpreting the ATS as
subordinate to the FSIA.
While “the ATS is a jurisdictional statute,” Kiobel v. Royal Dutch Petro. Co., 569 U.S.
108, 108 (2013), the Supreme Court has ruled that, to the extent it ever was, the ATS is not a
basis for jurisdiction over a foreign sovereign following enactment of the FSIA, Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989) (holding in an ATS case
that the FSIA provides “the sole basis for obtaining jurisdiction over a foreign state in our
courts.”).
In Amerada Hess, two Liberian corporations sued Argentina for damages stemming from
the alleged bombing of their non-combatant oil tanker outside of a designated war-zone, and
sought jurisdiction under both the FSIA’s tortious acts exception, § 1605(a)(5) and the ATS, §
1350. 488 U.S. at 431-32. In holding that the FSIA was the exclusive and comprehensive
scheme governing foreign sovereign immunity, the Supreme Court rejected any notion that the

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ATS confers jurisdiction over violations of international law not specifically recognized in the
FSIA, or that the ATS even “supplements” the FSIA. Id. at 435-36, 438. The Court explained
that “Congress had violations of international law by foreign states in mind when it enacted the
FSIA,” as evidenced by the FSIA’s “expropriation exception” at § 1605(a)(3), and the fact that
Congress “rested the FSIA in part on its power under Art. I, § 8, cl. 10, of the Constitution ‘[t]o
define and punish …Offenses against the Law of Nations.’” Id. at 435-36 (citing H.R. Rep. No.
94-1487, p. 12 (1976) (“H.R. Rep.”)). The “plain implication” is thus that foreign sovereigns are
immune “in those cases involving alleged violations of international law that do not come within
one of the FSIA’s exceptions.” Id. at 436; see also id. at 438 (citing H.R. Rep. at 12 (the FSIA
“intended to preempt any other State and Federal law (excluding applicable international
agreements) for according immunity to foreign sovereigns”)); see Hwang Geum Joo v. Japan,
332 F.3d 679, 687 (D.C. Cir. 2003) (holding that “whatever else the [ATS] might do, it does not
provide the courts with jurisdiction over a foreign sovereign. Only the FSIA can provide such
jurisdiction”), vacated on other grounds, 124 S. Ct. 2835 (2004)); Von Dardel v. Union of Soviet
Socialist Republics, 736 F. Supp. 1, 3 (D.D.C. 1990) (following the publication of Amerada
Hess, reversing a D.C. Circuit’s assertion of ATS jurisdiction over the USSR for its alleged role
in the detention and murder of a Swedish diplomat in Hungary).
Thus, “Congress’ decision to deal comprehensively with the subject of foreign sovereign
immunity in the FSIA, and the express provision in § 1604 that ‘a foreign state shall be immune
from the jurisdiction’ of United States courts except as provided in §§ 1605-1607, preclude a
construction of the ATS that permits” an alternative means to jurisdiction over a sovereign.
Amerada Hess, 488 U.S. at 438. Accordingly, the ATS does not provide this Court with a basis
for subject matter jurisdiction over Turkey.

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Claims that Turkey committed assault and battery in “violation of enforcement
jurisdiction” and interfered in the internal affairs of the United States (Count VI) cannot be
sustained, for to do so would cripple foreign security details in their efforts to guard their
protectees, and likewise risk subjecting U.S. protective services to similar limitations abroad. If
Plaintiffs had their way, foreign security forces would be free to huddle around their protectee,
but otherwise hopelessly shackled and muzzled from acting lest they risk “interfer[ing] with the
internal affairs of the United States.”
This policy problem notwithstanding, Plaintiffs’ ATS allegations must be analyzed under
the FSIA’s limited immunity exceptions. S.K. Innovation, Inc. v. Finpol, 854 F. Supp. 2d 99,
109 (D.D.C. 2012) (“The Court thus finds that Defendants are entitled to a presumption of
immunity under the FSIA and moves next to consider whether an FSIA exception confers
jurisdiction over Plaintiffs’ ATS claim on this Court.”). For the reasons discussed above, none
of those exceptions, including the tortious acts exception, 28 U.S.C. § 1605(a)(5), supplies this
Court with jurisdiction to adjudicate claims for “enforcement jurisdiction”—which is a separate
tort from the assault and battery claims raised in Counts I and II. Moreover, for the Court to
determine the validity of Plaintiffs’ allegation that the alleged torts “were committed in violation
of the prohibition in international law against foreign states exercising their enforcement
jurisdiction in the territory of another State and interfering in the internal affairs of another
State,” (Am. Compl. ¶ 262), the Court would have to decide the merits of those tort allegations,
which it cannot do without infringing on Turkey’s sovereign immunity. See, e.g., El-Shifa, 607
F.3d at 843-44; see also 28 U.S.C. § 1604.
Turkey expressly reserves all defenses to the claims made in Count VI to the Amended
Complaint, including whether the ATS creates a cause of action for the violations of customary

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international law alleged, whether the alien Plaintiffs have standing to bring such a claim, and
whether it would be justiciable.
V.

CONCLUSION
For the foregoing reasons, the Republic of Turkey requests that the Court grant its Motion

to Dismiss in its entirety and order that the Amended Complaint be dismissed with prejudice and
without leave to amend.
Date: June 4, 2019

Respectfully submitted

/s/ Cathy A. Hinger
Cathy A. Hinger (DC Bar No. 473697)
Victoria A. Bruno (DC Bar No. 484197)
Mark E. Schamel (DC Bar No. 463965)
WOMBLE BOND DICKINSON (US) LLP
1200 Nineteenth Street, NW
Suite 500
Washington, DC 20036
Tel: 202-857-4489
Fax: 202-261-0029
cathy.hinger@wbd-us.com
victoria.bruno@wbd-us.com
mark.schamel@wbd-us.com

/s/ David S. Saltzman
David S. Saltzman (DC Bar No. 436201)
Saltzman & Evinch, PLLC
1050 K Street, NW
Suite 1150
Washington, DC 20001
Tel: 202-372-0092
Fax: 202-318-0892
dsaltzman@saltzmanevinch.com
Counsel for Defendant Republic of Turkey

Counsel for Defendant Republic of Turkey

70