[00:00:00] Speaker 01:
All right, so we have another case with the same counsel arguing.

[00:00:04] Speaker 01:
I'm going to call case number 24-1645 Hamidullah versus Secretary of State.

[00:00:12] Speaker 01:
Mr. Kissimmee, in this case, you reserve five minutes for rebuttal.

[00:00:15] Speaker 01:
Is that accurate?

[00:00:17] Speaker 00:
That's correct, Your Honor.

[00:00:18] Speaker 00:
Thank you.

[00:00:18] Speaker 01:
And you may proceed, but to the extent that you're just going to say things that are exactly the same as in the last case,

[00:00:26] Speaker 01:
encourage you to focus on things that are maybe unique to this case.

[00:00:31] Speaker 00:
Your Honor, I'm not going to repeat everything I said before.

[00:00:34] Speaker 01:
I appreciate that.

[00:00:35] Speaker 00:
So in the case of Hamidullah, Your Honor, one fundamental difference is that there is actually a lease that specifically requires, that contains language that specifically requires return of the premises.

[00:00:54] Speaker 00:
I'll try to find this.

[00:00:56] Speaker 00:
This is the Kissimmee lot lease, which is Appendix 77.

[00:00:59] Speaker 02:
1077?

[00:01:03] Speaker 02:
Appendix A77.

[00:01:05] Speaker 02:
Thank you.

[00:01:07] Speaker 01:
And Council, just so I can understand, is this what you would consider to be your most favorable lease in this particular case?

[00:01:14] Speaker 00:
In this particular case, that's correct, Your Honor.

[00:01:23] Speaker 04:
I'm sorry, what was the page again?

[00:01:24] Speaker 00:
77, Your Honor.

[00:01:27] Speaker 04:
77, okay, thank you.

[00:01:32] Speaker 00:
And Article 14, termination for convenience.

[00:01:39] Speaker 00:
If you look at the last two sentences, the tenant will return the property in which it was received minus normal wear and tear, no necessary make ready, will be accomplished unless the damage is as a result of negligence by the tenant.

[00:01:52] Speaker 01:
Now, is this appendix page 80 that you're reading from?

[00:01:55] Speaker 00:
Yes, Your Honor.

[00:01:56] Speaker 00:
Appendix page 80.

[00:02:01] Speaker 00:
That language, the tenant will return the property, is clearly and unequivocally obligate the government to return the premises.

[00:02:15] Speaker 00:
And the Pulaski lease, which is the second lease for Mr. Hamidullah, there is a

[00:02:22] Speaker 00:
That language does not exist, but in Article 8, there is language that says that the premises may be to return.

[00:02:31] Speaker 01:
So Council, what do you think return required from the government?

[00:02:37] Speaker 01:
What actions?

[00:02:40] Speaker 00:
Your Honor, the argument is that the landlord leased his premises, and he was expecting it back, and it was the government's obligation to return the premises to him.

[00:02:53] Speaker 00:
How the government did that, how the government could have done that, that's something that needs to be looked into, it's a question of fact.

[00:03:02] Speaker 00:
We believe the government had options.

[00:03:04] Speaker 00:
In the case of the Qasimi Lot, it was one of the premises that was actually considered by the government to be included in the arrangement with Qatar.

[00:03:11] Speaker 00:
There was email exchanges, discussions about it, because it was a very important property for the government.

[00:03:17] Speaker 00:
But last minute, they just chose not to do it.

[00:03:20] Speaker 00:
And just by way of fact,

[00:03:23] Speaker 00:
The termination notice for the Kasimi Lot was issued, I believe, three months after the government had left Afghanistan.

[00:03:32] Speaker 00:
And the lease for the termination notice for the Pulaski Lot, which is the next property for Mr. Hamidullah, was issued seven months after it.

[00:03:40] Speaker 00:
So during the seven-month time, the government was debating internally what to do with these properties, whether to keep them, pay the rent, whether to include them with the Doha Agreement, or whether to terminate.

[00:03:52] Speaker 00:
Part of the reason why they did this, Your Honor, is because the government used this particular lot, the Kasimi Lot, as premises where they maintained all of the major armored vehicles.

[00:04:04] Speaker 00:
Their tanks and all kinds of equipment there that they were maintaining.

[00:04:07] Speaker 00:
They had helicopter landing pad and fuel storage facilities.

[00:04:11] Speaker 00:
And they spent a lot of money.

[00:04:13] Speaker 00:
They wanted to keep that equipment.

[00:04:15] Speaker 00:
But at the end of the day, they decided to go ahead and abandon it and let the equipment be what it made with it.

[00:04:23] Speaker 00:
So that debate is what caused the delay.

[00:04:27] Speaker 00:
Had the government chosen earlier, and they had plans at some point to move everything out of there and potentially to surrender that back to the landlord, they never did it.

[00:04:35] Speaker 00:
Subsequently, they had the option to include that in the arrangement with Qatar.

[00:04:39] Speaker 00:
They never did it.

[00:04:40] Speaker 00:
So at the end of the day, they decided that they were going to issue a notice of termination under force majeure clause, which the board found that there was no force majeure because it was not the Taliban takeover that caused any damages to the premises.

[00:04:51] Speaker 00:
Rather, it was the government's actions.

[00:04:53] Speaker 00:
So that is our position.

[00:04:55] Speaker 02:
So it seems implicit in what you're saying.

[00:04:59] Speaker 02:
You think under this contract, perhaps grounded in Article 14A that you read to us,

[00:05:07] Speaker 02:
Under these circumstances, the government had an obligation to use at minimum its diplomatic power to ensure that there was a return physically of this property to your client.

[00:05:21] Speaker 00:
The government could have returned it.

[00:05:24] Speaker 00:
before they left.

[00:05:26] Speaker 00:
That was something that was considered.

[00:05:28] Speaker 02:
If there's nothing in the contract that required them to return it before they left, right?

[00:05:33] Speaker 00:
That is correct, Your Honor.

[00:05:34] Speaker 00:
So the return is upon termination.

[00:05:36] Speaker 00:
They waited for the termination for several months, and then they issued the notice of termination.

[00:05:40] Speaker 00:
The obligation was to protect the premises, and that's stated in Article 8 of the lease that requires the government to

[00:05:51] Speaker 00:
to maintain the set premises in good repair and tenable condition.

[00:05:57] Speaker 00:
We believe that the government had an obligation to protect these premises, and that language.

[00:06:01] Speaker 01:
Is the word protect used in Article 8?

[00:06:05] Speaker 00:
That is correct, Your Honor.

[00:06:06] Speaker 00:
Article 8B, the tenant shall, unless specified to the contrary, maintain the state premises in good and repairable, good and repair and tenable condition.

[00:06:16] Speaker 01:
But okay, I don't see the word protect in Article 8B.

[00:06:18] Speaker 01:
I might be reading too quickly.

[00:06:20] Speaker 01:
Is the word protect in Article 8B?

[00:06:21] Speaker 00:
No, it's not, Your Honor.

[00:06:22] Speaker 00:
So, but we believe that the government had an obligation under the law, local law that was governed the leases and under the implied terms of the contract to protect the premises because it was leasing the premises from the landlord.

[00:06:38] Speaker 00:
And that obligation would have, should have,

[00:06:42] Speaker 00:
caused the government, the government should have done whatever it could to protect the premises so that the government could return it when the leases were terminated.

[00:06:50] Speaker 00:
They did.

[00:06:51] Speaker 00:
They just waited.

[00:06:52] Speaker 02:
But whatever it could, at least in the earlier case, I understood you to say you don't believe the government had a contractual obligation to use military means to protect and return the property, right?

[00:07:07] Speaker 02:
But if that's not your position in this case, let me know.

[00:07:11] Speaker 00:
We've never argued that, Your Honor.

[00:07:12] Speaker 00:
I think that what we've argued is that the government had the option to include these in the arrangement with Doha.

[00:07:18] Speaker 02:
Again, I understand that to be diplomatic power.

[00:07:22] Speaker 02:
You are arguing that we can find in this contract, either expressly or implicitly, an obligation on behalf of the United States government to use its diplomatic power, whatever it may be, to return these premises

[00:07:36] Speaker 02:
to your clients, right?

[00:07:38] Speaker 02:
That's your position.

[00:07:40] Speaker 00:
That is correct, Your Honor.

[00:07:41] Speaker 00:
Yes.

[00:07:42] Speaker 00:
My, our position is that, and just point of clarification, not without getting too political here, Your Honor, the embassy moved to Doha.

[00:07:51] Speaker 00:
So Doha is not necessarily a, doesn't require a whole lot of, all of the U.S.

[00:07:56] Speaker 00:
government facilities related to Afghanistan operate out of Doha.

[00:07:59] Speaker 00:
So it's a country that, that's why they did the arrangements for the,

[00:08:03] Speaker 00:
the government of Qatar, which sort of is the conduit for the US government these days in connection with Afghanistan, would manage these properties for the US government, which was the embassy, some other facilities that they included in that list.

[00:08:16] Speaker 00:
What we're saying is that the government had the option to include that.

[00:08:19] Speaker 00:
Then they could have facilitated for the transfer or whatever other means that they could do.

[00:08:24] Speaker 00:
Problem is that the landlord made a good faith attempt to go recover his premises.

[00:08:28] Speaker 00:
He was told this part of the embassy.

[00:08:29] Speaker 00:
And it's again, the facts will establish that the government

[00:08:33] Speaker 00:
did everything they could to make sure the landlord could never get into those premises.

[00:08:38] Speaker 00:
They have, again, huge walls, iron bombproof gates.

[00:08:43] Speaker 00:
Those were all sealed.

[00:08:44] Speaker 00:
Nobody had access to them.

[00:08:45] Speaker 00:
They're part of the area of the embassy.

[00:08:47] Speaker 00:
So the Taliban has checkpoints around them.

[00:08:49] Speaker 00:
They won't allow anyone to get access to those.

[00:08:53] Speaker 00:
Maybe it doesn't require diplomatic effort.

[00:08:56] Speaker 00:
Maybe it simply requires a letter from the government to the Taliban, whatever that may be.

[00:09:01] Speaker 00:
Maybe that's it.

[00:09:02] Speaker 00:
But we believe that the government had an obligation to do whatever it could to transfer these properties back to the landlord.

[00:09:08] Speaker 01:
I thought I just heard you say something about the government was preventing access, but it's really the Taliban that was preventing access.

[00:09:14] Speaker 01:
Isn't that right?

[00:09:15] Speaker 00:
Your Honor, that's the government position is that the Taliban.

[00:09:20] Speaker 00:
And again, the facts will establish this if you look at it.

[00:09:24] Speaker 00:
There are multiple checkpoints to get to these properties or to get to the properties discussed earlier on.

[00:09:30] Speaker 00:
Those checkpoints are controlled by the Taliban.

[00:09:35] Speaker 00:
If you go to the area, the Taliban will say, where are you going?

[00:09:37] Speaker 00:
If you tell them that you're going to this property, they say, no, you cannot go there because that's the embassy.

[00:09:41] Speaker 00:
But the premises itself has metal gates, iron gates, very high walls.

[00:09:45] Speaker 00:
They're protected.

[00:09:46] Speaker 00:
Nobody's allowed to go in there.

[00:09:47] Speaker 00:
They're treated as if they're part of the embassy.

[00:09:50] Speaker 00:
The Taliban will not allow people to go into the premises because they're considered part of the embassy.

[00:09:55] Speaker 00:
They will not allow anyone.

[00:09:57] Speaker 00:
So that's sort of the question.

[00:09:59] Speaker 00:
This is a question of fact.

[00:10:00] Speaker 00:
Is it the Taliban that's preventing people from going and recovering?

[00:10:04] Speaker 00:
the premises or is it actually the embassy that prevented it?

[00:10:07] Speaker 00:
Because the embassy treated this as part of the embassy.

[00:10:10] Speaker 00:
I draw your attention to some of the facts that I mentioned earlier in the earlier case, Mr. Hendricks' deposition.

[00:10:16] Speaker 00:
He said very clearly that in order to get to the premises, get past those, you'd have to either bring a bulldozer and blow the gates open, which would be an unreasonable expectation from a civilian landlord in Afghanistan, or climb over whatever

[00:10:32] Speaker 00:
fences or barbed wires, walls that are around those premises.

[00:10:36] Speaker 00:
And again, the Taliban are simply saying this is part of the embassy, we won't allow anyone to go near there.

[00:10:42] Speaker 00:
It's not that they're denying the landlord his ownership right in the premises, but rather they're protecting the embassy.

[00:10:50] Speaker 01:
Is there anything unique you want to argue about the other lease agreement in this case?

[00:10:54] Speaker 01:
I understand you've identified for us what you thought was the most favorable provision for you in the

[00:11:00] Speaker 01:
But what about in the Pulaski lease?

[00:11:04] Speaker 01:
Is there something you want to point us to?

[00:11:05] Speaker 00:
Your Honor, in the Pulaski lease, again, there's the Article 8.

[00:11:11] Speaker 00:
C, tenant will not be responsible for restoring premises.

[00:11:16] Speaker 00:
And then the second set says the premises are at least as is condition and may be returned in as is condition.

[00:11:23] Speaker 00:
That's the date of the lease expiry or termination.

[00:11:26] Speaker 01:
So again, our- You're on Appendix 88, is that correct?

[00:11:28] Speaker 01:
That's correct, Your Honor.

[00:11:30] Speaker 00:
And our position is that that is expressed language that requires return of the premises to the landlord You're well into your ball.

[00:11:40] Speaker 00:
Do you want to save it or do you want to keep yes, your honor?

[00:11:43] Speaker 00:
I will save some time.

[00:11:44] Speaker 01:
Thank you counsel Mr. Real You can proceed when ready Thank you, your honor

[00:12:00] Speaker 03:
So just off the bat, the Pulaski lease, that's the same template as the Champagne lease.

[00:12:07] Speaker 03:
So we've gone over that one.

[00:12:11] Speaker 03:
The Kissimmee lease, that's the one that Temdula says that he is the most favorable to his, most favorable terms for him.

[00:12:28] Speaker 03:
That provision, again, it's fairly similar to the Pulaski lease, the Champagne lease, and it mentions the word return, but it's in the context of the condition of the property.

[00:12:43] Speaker 02:
Here it does say will return as opposed to may return.

[00:12:47] Speaker 02:
Does that make a difference?

[00:12:49] Speaker 03:
It doesn't make a difference in terms of these cases.

[00:12:52] Speaker 03:
It says the tenant will return the property in which it was, the property in

[00:12:56] Speaker 03:
the condition in which it was received.

[00:12:57] Speaker 03:
It looks like there's a couple words missing there, but the tenant will return the property in which it was received minus normal wear and tear.

[00:13:03] Speaker 03:
No unnecessary make ready will be accomplished unless the damage is the result of negligence by the tenant.

[00:13:08] Speaker 03:
So it's about the condition of the property at the end of the termination of the lease.

[00:13:15] Speaker 03:
And so that's what the board concluded and the board was correct in that conclusion.

[00:13:23] Speaker 03:
This lease is like the other leases in that it allows the United States to terminate for convenience by notice.

[00:13:32] Speaker 03:
It also contains that clause 8B, which Mr. Hamidula's counsel had mentioned, but it includes that language that, yes, it's to maintain the said premises in good repair and tenable condition, including minor maintenance such as trash removal and light bulb replacement during the continuance of the lease.

[00:13:51] Speaker 03:
But it also says except for reasonable and ordinary wear and tear damaged by the elements or other circumstances not under the tenants control any damage arising from the intentional acts or negligence of the landlord its agents or employees or any other third parties not under the landlord or tenants control is similarly accepted.

[00:14:08] Speaker 03:
That's a page 79 of the of the appendix.

[00:14:11] Speaker 03:
So, you know, that's that's showing that

[00:14:14] Speaker 03:
The government's not responsible, the United States government's not responsible for the hostile acts of an insurgent force like the Taliban in this case as well.

[00:14:25] Speaker 03:
And just to clarify in terms of what happened to the property after the termination, there's a specific finding by the CBCA here at Appendix 5.

[00:14:40] Speaker 03:
The Taliban took control of the properties after DOS departed.

[00:14:44] Speaker 03:
So that's the finding of the CBCA.

[00:14:48] Speaker 03:
I don't think there's been a challenge to factual findings in this appeal, certainly not directly.

[00:14:54] Speaker 03:
And that's supported by the evidence as well.

[00:14:58] Speaker 03:
For example, for the Pulaski lot in an interrogatory response, Hamidullah stated that Pulaski lot is in possession and under the control of a Taliban commander named Qari Abed.

[00:15:09] Speaker 03:
That's an appendix 464 through 65.

[00:15:14] Speaker 03:
Hemedul explained that Abbott constructed several residential units, houses on Tulaski Lot that are currently occupied by families of the Taliban military commanders.

[00:15:24] Speaker 03:
Same citation, 464 to 65.

[00:15:27] Speaker 02:
There's a suggestion from opposing counsel that something as simple as a letter to the Taliban from the United States government saying essentially this is not the embassy might have been sufficient for,

[00:15:43] Speaker 02:
the Taliban to agree that his client could retake the property.

[00:15:48] Speaker 02:
Is there anything in the record that would support that and whether there is or isn't, why should this contract not be interpreted as at minimum requiring the government as part of its necessity to return to at least consider writing a letter?

[00:16:04] Speaker 03:
Well, I mean, we have to remember that the Taliban advanced upon Kabul and essentially did a military takeover of the city, which caused the government, the United States, embassy to hastily evacuate the area in August of 2021.

[00:16:23] Speaker 03:
So I think that the suggestion that a simple letter to the Taliban would allow Ahmadullah to retake control of the properties

[00:16:35] Speaker 03:
is a little far-fetched.

[00:16:38] Speaker 03:
I mean, the contracts, they don't require the government to take the diplomatic action to actually negotiate with a foreign country, Qatar in this case, to include these properties under some sort of non-binding monitoring agreement that's been created here.

[00:16:56] Speaker 03:
And there's also, there's a suggestion that if the government had put the Kissimmee lot or the Pulaski lot under this agreement,

[00:17:04] Speaker 03:
that that would allow Hamidullah to retake control of the properties.

[00:17:08] Speaker 03:
And that's not supported by the record.

[00:17:10] Speaker 03:
That's not, that hasn't been, maybe, maybe not, but we have no evidence that Qatar would actually be able to get the Taliban to give up these properties to Hamidullah at the conclusion, or if asked by the United States or Qatar.

[00:17:29] Speaker 02:
There's nothing in the record to support this letter idea, right?

[00:17:32] Speaker 03:
Right, yes.

[00:17:34] Speaker 03:
Yeah, and the Qassemi Lot, it's a similar situation as Pulaski that, you know, Hamidullah stated his understanding is that the Qassemi Lot is being used by Taliban special forces as a security facility.

[00:17:50] Speaker 03:
That's an appendix 465.

[00:17:53] Speaker 03:
I mean, he attempted to retake possession of the Qassemi Lot by contacting the Taliban.

[00:17:58] Speaker 03:
If the United States was in control of this, he presumably would have contacted the United States for that.

[00:18:06] Speaker 03:
Unless the court has any other questions, we respectfully request that the court affirm the decision in this case as well.

[00:18:13] Speaker 01:
Thank you, counsel.

[00:18:17] Speaker 01:
You can have four minutes for rebuttal.

[00:18:20] Speaker 00:
Thank you, your honor.

[00:18:21] Speaker 00:
A couple of things.

[00:18:23] Speaker 00:
One is, counsel just mentioned the facts, and again, the facts are very complicated, but what Mr. Hamidullah did say, and this is reflected,

[00:18:33] Speaker 00:
in the appendix 922, 923 is that Taliban told him that this is part of the U.S.

[00:18:40] Speaker 00:
embassy.

[00:18:42] Speaker 00:
One.

[00:18:42] Speaker 00:
Two.

[00:18:43] Speaker 00:
Again, it was not an act of Taliban that has caused Mr. Hamidullah to lose his premises.

[00:18:53] Speaker 00:
It's actions of the U.S.

[00:18:54] Speaker 00:
embassy that has caused Mr. Hamidullah to lose his premises.

[00:19:01] Speaker 00:
Three.

[00:19:04] Speaker 00:
Council mentioned that the board has already found that there was no force majeure.

[00:19:21] Speaker 00:
The board has found as a matter of fact that the actions of Taliban, the takeover of Taliban, the Kabul takeover of Taliban had nothing to do with the

[00:19:34] Speaker 00:
did not change the property, did not impact the property.

[00:19:38] Speaker 00:
It was rather the US government and the US embassies internal decisions that caused them to leave Afghanistan, they shut down operations.

[00:19:47] Speaker 00:
That was really the basis.

[00:19:49] Speaker 00:
Therefore, there is an inherent discrepancy between or inconsistency between the board saying on the one hand that the Taliban takeover had nothing to do with this and then stating that somehow the Taliban takeover caused the property to be lost.

[00:20:04] Speaker 00:
As a matter of fact, I think that's a question of fact that needs to be, all of the factors have to be taken into consideration.

[00:20:12] Speaker 00:
Our view is that at the end of the day, the facts will establish that the premises, there's absolutely no difference between them.

[00:20:20] Speaker 00:
They're simply protected because there's US government equipment, facilities, US government vehicles, armored vehicles, all kinds of things that are on those premises.

[00:20:30] Speaker 00:
That's why the Taliban are protecting them.

[00:20:32] Speaker 00:
We cannot say whether the Taliban are using them or not.

[00:20:34] Speaker 00:
I'm not sure whether the facts state that.

[00:20:40] Speaker 00:
So simply, we believe that the board has already found that the Taliban has not caused any damage to the premises, or it's not a Taliban action that has caused anything to the premises.

[00:20:51] Speaker 04:
For those reasons, we ask- What were the acts of the Taliban?

[00:20:55] Speaker 04:
Is there anything the United States

[00:20:58] Speaker 04:
has done or is doing to prevent your client from access to these properties?

[00:21:04] Speaker 00:
Well, other than the United States building massive walls around these properties and keeping... But they had a right to do that, correct?

[00:21:11] Speaker 00:
That's correct.

[00:21:11] Speaker 00:
They had the right to do that.

[00:21:13] Speaker 04:
Other than the acts of the Taliban?

[00:21:16] Speaker 00:
Correct.

[00:21:17] Speaker 04:
Are there any other acts of the United States that are preventing your client from retaining property, regaining the property?

[00:21:25] Speaker 00:
So a couple of things specifically.

[00:21:27] Speaker 00:
The United States, when they left, they sealed all the gates.

[00:21:30] Speaker 00:
They put large vehicles behind them to make sure nobody could breach them.

[00:21:35] Speaker 00:
So those are stated in the facts.

[00:21:37] Speaker 00:
And they never communicated with anyone until months later that they were evacuating or that they were terminating the leases.

[00:21:47] Speaker 00:
To our knowledge, they've never communicated to the Taliban that these are lease premises, that these are, that landlords are authorized to go back and recover these premises.

[00:21:55] Speaker 00:
So it's both the actions and the missions of the United States that have caused the Taliban not to allow anybody to go to those areas and to recover the premises.

[00:22:05] Speaker 00:
In order to recover the premises, as I said earlier, according to the facts,

[00:22:09] Speaker 00:
The landlord would have to come get special permission, bulldoze the gates, or blow up the gates, whatever that is.

[00:22:18] Speaker 00:
And then there's the question of what they do with all the equipment.

[00:22:21] Speaker 00:
And those are U.S.

[00:22:22] Speaker 00:
Embassy equipment.

[00:22:23] Speaker 00:
The government has argued that we vacated the premises.

[00:22:27] Speaker 00:
There was no vacating.

[00:22:29] Speaker 00:
They took no action to vacate.

[00:22:31] Speaker 00:
Yes, they took their personnel out of the premises, but they left everything intact.

[00:22:35] Speaker 00:
And they sealed those doors.

[00:22:36] Speaker 00:
They put vehicles behind those gates.

[00:22:38] Speaker 01:
to make sure nobody could access it.