does the existence of a status of forces agreement between the united states and afghanistan affect the lower courts determination that issue was decided in the favor of the plaintiffs because of the lower court indicated that it does not affect raised by the defendant but i'm not saying that you can't look at it what does the super provide about the government of afghanistan providing  to leave issues involved here because the land was still privately owned that the combat outpost millet was built on on page fifteen of the appendix the court of federal claims that the government has never offered nothing suggesting how international law and international justice are implicated by the court rolling takings claim against the united states by a united states citizen albeit on foreign soil i suppose the claim involved the death of a u s citizen fighting for al qaeda for fighting for the taliban on foreign i'm talking about the underlying law you have any thoughts on that i would say that what would be legal implications in them deciding to fight for al qaida and they could not bring an action against the united states that due to the threat of i e d as an on going out taliban threat in the in the area the u s army destroyed buildings containing bomb making materials on the real property and then built outpost millet on that property do you dispute those facts yet and in certain respects because the plaintiffs maintain that yes there were buildings on his property  can i shift gears for a minute so i understand that but as i said you make a couple arguments one is that the that it was inappropriate for the court to rule at the motion to dismiss stage on let's just review ownership interest because there were too many factual disputes but more pointedly i think you're contending that that court's view of afghan law is incorrect and that there are other ways to establish ownership is that right now like yes yes because ok so which which document which piece of evidence did he lead she could submit and support of his claims i understand he argues that there are other ways to establish ownership that are that are you know that are far outside the bounds of the law but with respect to what the court of claims spelled out as to what the law requires did he al ege that he could establish any one of those well eventually he did the inheritance agreement was recalled was register although it was after the statute had been enacted so what at the time that the inheritance agreement was executed in two thousand and four that requirement was not there there's a there's a list of things that the court or federal claims said had to be established there are different ways to establish our ship under afghan law and the court gave a list of them  seven types of documents yes all right and which one of those seven did mr sharifi plead he could provide parents agreement so you're saying that those constitute title documents and that they were they were registered ye since two thousand and four when they were executed because there was no requirement on this judge while on page twenty four of the red brick the government to search that you did not contest the a agency and they did an exhaustive study of the rule of law and over the entire country and they recogni five which is say fifteen years ago are you do you agree that afghanistan has three overlapping types of law civil law sharia law and customary law yes do you agree that what the expert from the government laid out was the civil law analysis of the transfer of la talks ok i know this is difficult because of the phone let me ask you a couple of questions one is how the existence of a sofa status forces agreement affects the lower court's determination your honor we did not brief specifically the status of forces agreement and i cannot answer whether there are any particular provision that agreement impacts the court's determination what i can say though is that the united states presence in afghanistan the army's presence was pursuant to a u n security council resolution we were there as part of an inner national security assistance force and with the consent question there and there is an i as well is there not time when they were fighting a counterinsurgency by the taliban and under the enemy property dr in the dry so so you don't want to stop firm on that do you i would be happy for you to firm on that you're on and we we would prefer that the court did not leave it open that there was a takings climb in that circumstance because for the reasons that you know from even then the court just say it was too early in the proceedings to make a determination because it turns on on what factually was occurring and that there are certain pieces of evidence that the government tried to submit that that are appropriate at the motion to dismiss stage so i don't think the court reference any specific evidence the court did suggest that it wasn't you know appropriate at this time because of the what the court was applying was the substantial indirect involvement tests from some of the cases of this court and said that the needed that's not a situation where a taking can be found because any taking in that context is a taking by under the sovereignty of the the territorial sovereign there in that case japan in this case we would submit that any you know even if  argument it does that's trying to can ask a i guess i have two questions when one is about the ownership issue and then the other is about as the non and then the property version of your argument that the limitation is just compensation clause and we start with the ownership i think ms gaines said in her argument that although i'm not sure this is in the blue brief but i think she said plaintiff here did in fact submit not submit did in fact allege that he had a registered title document if i understood that right can you comment on directly addressing just trying to ask question because the question is is is the inheritance document that she's referring to does that that's the same as alleging  issues were irrelevant because there was no registered document there's not nothing that documented his father's ownership is that right now the words that show there was something to inherit yes that's right  i mean there are several steps in this sort of the janet title but what our experts said is that if you have an inheritance agreement you have to have attached to that right the deed and if there's not a deed you need one of these other competent pieces of evidence that registered but it came to be registered later right and that's what i was talking about became to be registered later was sending it to the district governor in two thousand and sixteen i think after the complaint was filed or at some time there in to get the district point not not not the any enemy property grounds which you present i think quite correctly as a separate ground under your argument number two but under to be as i understand it you make an argument that the united states indeed any sovereign cannot be liable under the just compensation clause for taking property outside that  sovereign control and i guess i die find that when you take away the enemy property and military aspect a somewhat surprising proposition  if georgia took some property in tennessee is there no taking claim against georgia that would be an unusual  circumstance i mean it's hard to imagine how georgia would have the legal authority under georgia law to take any property in tennessee right but that so that i guess gets to the point that i guess struck me as  basis of what i i guess basically thought was a confusion in your argument it probably is quite true that the authority of a sovereign to exercise eminent domain power is limited to that power limited to land within the sovereign control but i don't understand how that translates into the proposition that if the acting government has a foreign affairs authority or commerce clause authority gives the united states army the the legal authority to take private property within the confines of another territory another nation another territorial were arguing is that the context of our occupation of possession of private property in a in a foreign country is important and ordinarily there are two basic ways that happens right one is as if for seizing property in the course of warfare or the nd ordinary lawful way it happens is with the consent of the nation you know where we're at then are there to laugh always right not and setting aside all providers a ctions that may occur there are two lawful ways for for the u s army to occupy foreign soil one is pursuant to the war powers and the other is pursuant to the consent of the government and what we say here in consistent with the standard vacuum cases were there as part of an international security assistance force assisting the sovereign government of afghanistan in its own internal warfare and struggle  and in that context we are not exercising the united states is not exercising its power of eminent domain it is relying on afghanistan's power of eminent domain where it is necessary no to fulfill its mission under the u n security council resolution again are these don't these turn on factual questions i mean i guess we all know that were in afghanistan but do we know exactly with respect to this piece of property how things played out and do we even get there on a motion to dismiss judge malley i don't it's a little we're in afghanistan a war in afghanistan under a u n security council resolution that's a matter of law where there is a matter of an international security assistance force that's a matter of law there's no dispute that this is simply a combat outpost and it's part of our mission there's no dispute that we were doing it in concert with the government of afghanistan it's it's  difficult for me to conceive of any particular fact that would change the notion that there were we are there as part of an international security assistance force with the consent of the sovereign government to help them  clear out a counterinsurgency by the taliban and in that context you know if our troops need to be housed even in a non combat non enemy property sort of circumstance the proper  way to view it is that the taking authorities the authority of the sovereign government of afghanistan because we're not they're acting as a matter of our eminent domain and if you look at the other cases where united states has been held far as the legal status with respect to the international force in the resolution i quite frankly i don't recall whether there in the complaint they are matters of law that are subject to this  sure that there were subject to noted i don't think there disputed here and you know if you ask the court a federal was on it was a motion to dismiss but it was supported by external facts statements specifically on the government's part the affidavit by its expert on afghan law conversion under a rule fifty six summary judgment standard that the court even need to do that when when the rules specifically explain what the court may consider when motion to dismiss the compliant and the standard of review required lower court to that the facts alleged in the complaint as true or and  me let me just ask you this rule forty four point one says that the court may consider evidence even testimony and other materials that would not be even admissible under the federal rules of evidence and it still is to be treated as a pure question of law and in making the determination as to what the law applies so why wouldn't we just believe that what the court was doing is determining whether your client adequately stated the claim under right so for instance if you were you know alleging that they took your property in the state of ohio you would have to look at ohio law to determine the property ownership and here if you're alleging the property was taking and in afghanistan you have to establish ownership under afghan law correct correct under the l a beneficial owner whether or not there was a de present because really original owner the document was reported they still had an interest in the property as beneficial and that would give them the right to need ok thank you counsel the case will be