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Tuesday, November 29, 2005

Coercive Expatriation and Unconstitutional Conditions

[Although the title of this post might make for a good story about staying home too long during Thanksgiving, I, unfortunately, settled on something a little less exciting.]

We now have two-and-a-half more weeks to ponder the imponderables in the case of Jose Padilla, given that the SG asked for, and received, an extension on its Op. Cert. until December 16 (it was originally due yesterday). In that vein, Juliette Kayyem has some interesting thoughts on "The Future of Padilla" over at TPMCafe... Although tangential to her post, Kayyem mentions how one of the conditions of the release of the other U.S. citizen "enemy combatant" -- Yaser Esam Hamdi -- was that Hamdi renounce his U.S. citizenship.

There may not be much that Americans like me take more for granted than citizenship. Talk about something that we benefit from every day, but seldom think about... But the machinations in Hamdi, and Kayyem's suggestion that a similar fate may await Jose Padilla, led me to wonder about whether it really is that easy for the government. Can a condition of your release from military custody really be that you'll renounce your citizenship? Could local law enforcement borrow a page from the Department of Defense's playbook?

I was heartened to learn, after not that much research, that the answer appears to be a resounding NO. It is now black-letter constitutional law that "every citizen has a constitutional right to remain a citizen . . . unless he voluntarily relinquishes that citizenship." [From Vance v. Terrazas, which itself largely relied on Afroyim v. Rusk]. Such a right comes from the so-called Citizenship Clause of the Fourteenth Amendment, which provides that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

So, the only question that needs to be asked in assessing the legality of such coercive expatriation is whether the expatriating act was, in fact, "voluntary." Here, I'll defer to the experts on criminal procedure, but it seems fairly straightforward to me to conclude that any such Hobson's Choice  -- stay in military detention or renounce your citizenship -- could hardly be called "voluntary" within any traditional meaning of the word...

Absent such a voluntary renunciation of citizenship, it seems like Hamdi's release agreement presents the textbook "unconstitutional conditions" case, to borrow from the ongoing debate over the Solomon Amendment. The better question, I imagine, is who gets to raise this claim, unless Hamdi himself returns to the United States, and the government attempts to deport him...

Posted by Steve Vladeck on November 29, 2005 at 09:14 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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Peter -- I take your point, but I think there is a critical difference between knowingly and voluntarily waiving rights when it's exchange for dropping _charges_ (on which you might not be convicted anyway), as opposed to knowingly and voluntarily waiving rights when you're trading citizenship for freedom. Shouldn't such agreements be per se coercive?

Posted by: Steve Vladeck | Dec 1, 2005 3:07:15 PM

"it seems fairly straightforward to me to conclude that any such Hobson's Choice -- stay in military detention or renounce your citizenship -- could hardly be called "voluntary" within any traditional meaning of the word..."

I would grant you that presumptively his renunciation was involuntary, but an evidentiary hearing might reveal he was happy to say bye-bye to Uncle Sam. I would not favor a rule that renunciation contemporaneous with a bargain for freedom is per se involuntary, because there is no a priori certainty about what goes on in the human mind. Consider Newton v. Rumery, 480 U.S. 386 (1987), enforcing a waiver of right to sue for civil rights violation even though waiver was part of an agreement to drop criminal charges against the (future) civil rights plaintiff.

Posted by: Peter Lushing | Nov 30, 2005 2:32:58 PM

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