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."

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.

No Per Se Rule Against Enforcement of Release-Dismissal Agreements

A plea bargain, however, is in some sense the opposite of the agreement between Hamdi and the government. A defendant who pleads guilty admits guilt. By contrast, Hamdi has long maintained his innocence--and continues to do so, even in the agreement. It recites Hamdi's contentions "that he never affiliated with or joined a Taliban military unit, never was an enemy combatant . . . and . . . was never a member of nor affiliated with al Qaeda."

The closest analogue in the case law to the agreement that Hamdi signed is something called a "release-dismissal agreement." In entering into such an agreement, a criminal defendant who is also a plaintiff in a lawsuit against the government agrees to drop his civil suit, in exchange for the government's agreement to drop the criminal charges against him. In the Rumery case, the Supreme Court ruled that release-dismissal agreements are sometimes enforceable.

The federal appeals court in Rumery had said that release-dismissal agreements were categorically unenforceable on two principal grounds: First, the court found that the threat of prosecution exerts so much pressure on a criminal defendant/civil plaintiff, that his decision to drop the lawsuit cannot be treated as truly voluntary; and second, the court found that prosecutors and police would be tempted to institute baseless criminal actions against civil rights plaintiffs if release-dismissal agreements were enforced.

A 5-4 majority of the Supreme Court rejected these arguments, however. The Justices thought that the coercion arising out of a release-dismissal agreement is no greater than the coercion associated with a plea bargain. Because the law permits plea bargains, they concluded, it should similarly permit release-dismissal agreements.

The Court also thought that any risk of prosecutors trumping up charges against civil rights plaintiffs could be addressed on a case-by-case basis. It was not necessary to invalidate all release-dismissal agreements, the majority Justices reasoned, simply because some of them might trade the chance to continue with a potentially meritorious lawsuit for the dismissal of a weak criminal case.

The Legal Standard for Enforcement of Agreements Like Hamdi's

Thus, the Supreme Court in Rumery rejected the argument that release-dismissal agreements are categorically unenforceable. Yet it did not say that they are categorically enforceable.

The lead opinion by Justice Lewis Powell recites the general principle of contract law to the effect that "a promise is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement." Providing the crucial fifth vote to uphold the release-dismissal agreement--and thus also providing an authoritative gloss on the result in the case--Justice O'Connor added in a concurring opinion that the government bears the burden of showing that the balance of factors favors enforcement.

Why did the Court to uphold the particular release-dismissal agreement in Rumery? Justice Powell's opinion highlighted six factors--all of which counseled in favor of upholding the agreement:

Rumery was a sophisticated businessman who likely understood the stakes and consequences; he "was not in jail" when the agreement was negotiated and signed; he "was represented by an experienced criminal lawyer"; he "considered the agreement for three days before signing it," showing that he did not act rashly; he received, through the agreement, a substantial benefit--namely immunity from prosecution for witness tampering in a case involving a friend of his; and the prosecution had a sound independent reason for foregoing the criminal prosecution--that of sparing a key witness "the public scrutiny and embarrassment she would have endured if she had had to testify in either" the criminal prosecution of Rumery or his potential civil suit against the county for defamation.

To these six factors, Justice O'Connor's authoritative concurring opinion added another that she thought especially relevant. Reasoning that "the greater the charge, the greater the coercive effect," Justice O'Connor concluded that the fact that the charge against Rumery was "one of the lesser felonies under New Hampshire law, and a long prison term was probably unlikely" cut in favor of enforcement of the plea agreement.

Justice O'Connor also noted that one factor not present in Rumery's case-- judicial supervision of the plea agreement--would also have cut in favor of enforcement of the agreement.

Does Hamdi's Agreement With the Government Satisfy the Supreme Court's Standard in the Rumery Case?

In his agreement with the government--in addition to renouncing any claim to U.S. citizenship and accepting a variety of travel restrictions--Hamdi also agrees that he "releases, waives, forfeits, relinquishes and forever discharges the United States, its departments, agencies, officers, employees, instrumentalities and agents, in their individual or official capacities, from any and all claims for any violation of United States, foreign, or international law arising from" his custody.

As if that language weren't clear (and redundant) enough, the agreement also states that Hamdi likewise foregoes "any and all challenges to the terms and conditions imposed by" the agreement itself.

But of course, if the agreement is unenforceable, then so is the waiver of the right to challenge the agreement. And thus we are left with the question: Does Hamdi's agreement satisfy the Rumery test?

Multi-factor balancing tests are notoriously difficult to apply, especially where, as in Rumery, the Court does not assign relative weights to the various factors. We cannot know for certain what a court would do if, after leaving the country, Hamdi were to file a federal civil rights action alleging that his detention for nearly three years without charges or a hearing was unlawful.

Nonetheless, a comparison of the circumstances in Rumery's and Hamdi's cases suggests that Hamdi's suit would probably be allowed to proceed, notwithstanding his agreement with the government.

Let us briefly examine the arguments for and against enforcement, under the Rumery factors:

In favor of enforcement are three factors: Hamdi, like Rumery, was represented by experienced criminal defense counsel. Presumably, given the advice of counsel, Hamdi was not rushed into signing the agreement. And Hamdi received a substantial benefit from the agreement --although, unlike Rumery, his benefit was lessened by the fact that he had to accept exile and parole-like conditions on his liberty.

In favor of invalidating the plea agreement are five factors:

First, unlike Rumery, Hamdi was not a sophisticated actor in our legal system. Although he claimed U.S. citizenship in virtue of his birth on American soil, he spent nearly his entire life (prior to his imprisonment here) outside this country, and his signature on the agreement is in Arabic, suggesting a lack of familiarity with English.

Second, and also unlike Rumery, Hamdi was in custody when the agreement was negotiated and signed. He thus had a strong incentive to agree to whatever terms would hasten his release.

Third, unlike the prosecution in Rumery, the government does not appear to have a sound independent reason for the agreement. On the contrary, from what appears in the public record, it looks as though the government's principal reason for the agreement is its inability to establish that Hamdi was an unlawful enemy combatant under procedures that satisfy the Supreme Court's June decision. But if so, that hardly justifies requiring Hamdi to forego his remedy for any past injustice as the price of shortening the time he must remain in custody.

Fourth, under Justice O'Connor's principle that "the greater the charge, the greater the coercive effect," Hamdi was under very substantial coercion. In the government's view, unlawful enemy combatants in the global war on terrorism can be held until the threat has passed, which, unfortunately, may not happen for decades, if ever. Thus, the "charge" against Hamdi carried the distinct possibility of indefinite detention. So Hamdi--unlike Rumery--faced the substantial likelihood of a lengthy period of incarceration. And in the government's view, he faced this likelihood even if he was never proved guilty, at trial, of any crime.

Fifth, there was no judicial supervision here. Instead, the government's agreement with Hamdi was filed in federal district court in Norfolk, Virginia, pursuant to Federal Rule of Civil Procedure 41(a)(1)(ii). That rule authorizes dismissal of a pending lawsuit "without order of the court."

The Bottom Line

If you're keeping score at home, the factors tipped in favor of upholding Rumery's plea agreement, 7-1. (Only the absence of judicial supervision suggested the agreement should not be enforceable.) But in Hamdi's case, the factors tip in favor of invalidating his plea agreement, 5-3.

Moreover, it is plain that in Hamdi's case, especially powerful coercive forces were at work. The prospect of indefinite detention based only on a finding of unlawful enemy combatant status--without proof of any crime--is indeed a daunting one.

Rumery itself appeared to be a fairly close case. After all, the Supreme Court itself split 5-4 on the question of whether Rumery's agreement should be enforced. In light of that fact, it is difficult to see how the government could satisfy its burden of showing that the Hamdi agreement is enforceable.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases.

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