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Comments by YACCS
Wednesday, September 29, 2004

Hamdi may well sue


Yusuf Hamdi in custody. Likely to sue the shit out of the US at some point


Have We Heard the Last of Yaser Hamdi?
Why His Promise Not to Sue the Government May Not be Binding
By MICHAEL C. DORF
----
Wednesday, Sep. 29, 2004

Late last week, the federal government reached an agreement with Yaser Esam Hamdi, permitting him to leave the United States for Saudi Arabia.

In late 2001, the Northern Alliance handed Hamdi over to U.S. forces in Afghanistan. Since then, Hamdi--a U.S. citizen--had been held without charges as an "unlawful enemy combatant."
Click here to find out more!

In June of this year, Hamdi won a partial victory in the Supreme Court when the Justices ruled that he was entitled to a hearing on his claim that he was not affiliated with the Taliban or al Qaeda. But that hearing never took place; instead, talks between Hamdi's attorney and the government ensued.

In the wake of the announcement of Hamdi's release, commentators have questioned whether the government ever needed to hold Hamdi in the first place. As an editorial in the Miami Herald asked, if, as the government once claimed, Hamdi "was so dangerous that he couldn't even be allowed to talk with a lawyer," why does the government now think that he poses no threat?

That and other questions about Hamdi's detention will seemingly never be answered--at least in court. That is because Hamdi's agreement with the government provides, among other things, that he waives the right to sue for any violations of his legal rights that may have occurred.

But is that really the end of the story? The law has long recognized the principle that a contract signed under duress is not enforceable. And under the leading Supreme Court decision, the 1987 case of Town of Newton v. Rumery, if Hamdi one day brings a lawsuit, the government will bear the burden of establishing "that the agreement is neither involuntary nor the product of an abuse of the criminal process."

It is doubtful whether the government can meet that burden.

A Contract Requires Voluntary Consent

Suppose that Kim the Kidnapper demands that before she will release Harry the Hostage, the ransom payers must agree not to sue for their money back, the government must agree not to prosecute Kim, and Harry must agree not to sue for the harm the ordeal caused him. Suppose further that the ransom payers, the government, and Harry accept Kim's terms.

None of these promises, however, would be enforceable--for the parties were acting under duress. A contract requires the voluntary consent of the parties entering into it, and none of the parties acceding to Kim's demands was in a position to say no.

Does that legal principle extend to agreements with the government? Yes and no. Contracts with the government are generally subject to the same rules as contracts with anybody else, including the principle that no enforceable contract can arise out of undue coercion. But what constitutes undue coercion? In the context of agreements with the government, courts seem particularly loath to find duress on the part of the private party.

Consider plea bargains--in which a criminal defendant gives up her right to a jury trial and appeal in exchange for the promise of a relatively light sentence. They are generally held by courts to be enforceable. Yet the threat of a long rather than a short prison sentence, or even the threat of execution, certainly can, as it were, concentrate the mind.

Nevertheless, our courts do not see defendants who accept plea bargains as having acted under duress--so long as there is a factual basis for believing that the defendant actually committed the offense.


Why would he sue? The right to retain his US citizenship, among other things. That and the illegal travel restrictions are more than enough for him to make this deal and then whip around and sue the crap out of the US. US citizenship is important around the world and getting it is not a small deal.

posted by Steve @ 5:18:00 PM

5:18:00 PM

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