Former ‘Enemy Combatant’ Promised Not to Sue U.S. Government in Exchange for Release
When the news broke last week that the United States had tried to prevent Binyam Mohamed from suing the U.S. government — or even talking about his treatment at the hands of U.S. authorities before they would allow him to return to the United Kingdom — I wondered how many more former detainees deemed “enemy combatants” had been asked the same thing. And how many had actually* made* that promise as a condition of securing their release from prison?
I don’t have the numbers yet, and many of the agreements are confidential, but at least one, now on file in a federal district court, reveals that Yaser Esam Hamdi — who was captured in Afghanistan in 2001, deemed an “illegal enemy combatant” and sent to Guantanamo Bay, where he was imprisoned for almost three years without charges — signed a promise not to sue the U.S. government as a condition of his release.
Evidently, the government knew it was vulnerable to suit for unlawful indefinite detention and abuse in custody — exactly the claims that some other former detainees have made since then.
“It was certainly a condition that the goverment insisted on,” says Geremy Kamens, an Assistant Federal Public Defender in the Eastern District of Virginia who represented Hamdi at the time.
Hamdi, who was born in Baton Rouge, La. and is therefore a U.S. citizen, insisted he was never a member of the Taliban or fighting the United States, as the U.S. government claimed. Still, to secure his release from prison (he was eventually transferred to the same Navy Brig in South Carolina that held Ali Saleh Kahlah Al-Marri), he signed the following statement:
Except in case of breach of this Agreement by the United States, Hamdi hereby 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 acts or omissions occurring prior to the official date of this Agreement, and from any and all challenges to the terms and conditions imposed by this Agreement.
Hamdi also agreed to relinquish his U.S. citizenship, be deported to Saudi Arabia, and face a host of travel and other restrictions.
But say Hamdi was tortured, abused, humiliated or otherwise mistreated while in U.S. custody, in violation of U.S. and international law, as many other former Guantanamo detainees claim they were? Would his promise to not sue hold up in court?
As Shayana Kadidal of the Center for Constitutional Rights explains in an e-mail: “A nearly universal principle of contract law is that courts should refuse to enforce agreements made under duress, or that are against public policy (like gag rules). So one could make the argument against enforceability on those grounds.”
Of course, one could say that any plea agreement by a criminal defendant is entered into under duress, and those are virtually impossible to challenge in court. Then again, Hamdi did not plead guilty to anything, so this situation is a little different.
As Cornell University Law Professor Michael Dorf has written, “if Hamdi one day brings a lawsuit, the government will bear the burden of