Fwd from Michael Froomkin re: Can Hamdi waiver citizenship?
Francisco Martin
ricenter at igc.org
Fri Sep 24 08:24:47 PDT 2004
The Third Geneva Convention (which SCOTUS held applied to Hamdi) states
that a PoW cannot renounce his/her rights protected by the GC3 (art. 7),
and such rights include the retention of "full civil capacity which [s/he]
enjoyed at the time of their capture" (art. 14).
Francisco Forrest Martin
President
Rights International, The Center for International Human Rights Law, Inc.
> [Original Message]
> From: Volokh, Eugene <VOLOKH at law.ucla.edu>
> To: <conlawprof at lists.ucla.edu>
> Date: 9/23/2004 9:18:01 PM
> Subject: Fwd from Michael Froomkin re: Can Hamdi waiver citizenship?
>
>
>
> > ---------- Forwarded message ----------
> > From: Michael Froomkin <michael.froomkin at gmail.com>
> > Date: Thu, 23 Sep 2004 21:07:25 -0400
> > Subject: Re: Can Hamdi waiver citizenship?
> > To: Sanford Levinson <slevinson at law.utexas.edu>
> > Cc: jason.mazzone at brooklaw.edu, conlawprof at lists.ucla.edu
> >
> > I find the idea of exiling citizens to be very troubling. I
> > think it is
> >
> > (1) cruel and unusual to (attempt to) require a
> > denaturalization; (2) likely a violation of due process to
> > demand this agreement as a condition of release from an
> > illegal detention in solitary confinement; and
> > (3) I would also be willing to argue that it's a per se
> > unconstitutional action for the government, created by We the
> > People, to demand that a citizen remove himself from the polity.
> >
> > Imagine if Congress were to proscribe denaturalization as a
> > penalty for a natural-born citizen? Would that be
> > constitutional? I trust and hope not. [The case of people
> > who lie on citizen applications is of course different, as
> > that fraud taints the citizenship from the start] That the
> > executive extorted an 'agreement' in the context of its
> > oft-expressed view that Hamdi need never be released, so that
> > it is formally 'voluntary' seems to me to be all form and no
> > substance.
> >
> > Finally, I think the fact that Hamdi is a dual national isn't
> > that relevant. Our view of dual nationals is that they have
> > all the rights and duties of other citizens. If they can do
> > this to Hamdi, they can do it to anyone. Indeed, the Soviets
> > used to denaturalize people and leave them stateless quite regularly.
> >
> >
> >
> >
> > On Thu, 23 Sep 2004 17:43:03 -0500, Sanford Levinson
> > <slevinson at law.utexas.edu> wrote:
> > > This certainly seems to set up a classic "unconstitutional
> > conditions"
> > > problem. How crucial is it, incidentally, that Hamdi has a
> > place to
> > > go to (that apparently will accept him)? Could the US in effect
> > > create a "stateless" person?
> > >
> > > sandy
> > >
> > >
> > >
> > > -----Original Message-----
> > > From: conlawprof-bounces at lists.ucla.edu
> > > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> > Jason Mazzone
> > > Sent: Thursday, September 23, 2004 5:35 PM
> > > To: conlawprof at lists.ucla.edu
> > > Subject: Can Hamdi waiver citizenship?
> > >
> > > A condition of Yaser Esam Hamdi's release from the brig in
> > Charleston
> > > is that he renounce his U.S. citizenship. From news
> > reports, Hamdi is
> > > apparently not troubled by this condition. But is citizenship,
> > > guaranteed under the Fourteenth Amendment, subject to
> > waiver through a
> > > deal with the government? If indeed citizenship can generally be
> > > waived (plea bargaining comes to mind) how about in this
> > kind of case,
> > > as a condition for the release of somebody who has never even been
> > > prosecuted? And can individuals held as enemy combattants
> > be required
> > > to give up other constitutional protections (speech, religion, for
> > > example) if they want to be set free?
> > >
> > > Jason Mazzone
> > > Assistant Professor of Law
> > > Brooklyn Law School
> > > 250 Joralmeon Street
> > > Brooklyn, NY 11201
> > > (718) 780-7514 (voice)
> > > (718) 780-0394 (fax)
> > >
> > > > On October 20. Canada votes to accept the U.S. offer.
> > On November
> > > > 2nd (or whatever the relevant date), Canadians vote
> > overwhelming for
> > > > John Kerry. Do these votes count? How many electoral votes? Who
> > > decides?
> > > >
> > > >>>> "Matthew J. Franck" <mfranck at radford.edu> 09/23/04 11:46 AM >>>
> > > > I haven't read the article yet, though I look forward to it. My
> > > > question is, if there is continuity from the Articles to the
> > > > Constitution, is the
> > > >
> > > > offer still open for Canada to become the (now) 51st
> > state? Or was
> > > > that
> > > >
> > > > foreclosed by the Constitution's failure to mention it?
> > > >
> > > > Matt
> > > > ***************************
> > > > Matthew J. Franck
> > > > Professor and Chairman
> > > > Department of Political Science
> > > > Radford University
> > > > P.O. Box 6945
> > > > Radford, VA 24142-6945
> > > > phone 540-831-5854
> > > > fax 540-831-6075
> > > > e-mail <mailto:mfranck at radford.edu>mfranck at radford.edu
> > > > www.radford.edu/~mfranck
> > > > ***************************
> > > > At 07:08 PM 9/22/2004, Calvin Johnson wrote:
> > > >> I invite critique and controversy in reaction to
> > my "Homage
> > > >> to
> > > >
> > > >> Clio: The Continuity from the Articles of Confederation into the
> > > >> Constitution," 20 Constitutional Commentary 463 (2004),
> > which can
> > > >> be reached at
> > > >> http://www.utexas.edu/law/faculty/calvinjohnson/HomageToClio.pdf
> > > >> I would of course send the reprint to you all,
> > personally, if only
> > > >> I
> > >
> > > >> could afford it.
> > > >> My best
> > > >> Calvin Johnson
> > > >> Abstract: The nature of the United States
> > > >> continued
> > > > even
> > > >> as the Articles of Confederation was replaced by the
> > Constitution.
> > > > The
> > > >> Constitution is a radical document, but unstated
> > assumptions about
> > > >> political institutions continued from the Articles into the
> > > >> Constitution. Only the provisions that were challenged
> > or changed
> > > > were
> > > >> written down. Routine parts of what the Framers knew defied
> > > > articulation.
> > > >> Historical continuity explains why George
> > > >> Washington could be President, even though Virginia had not
> > > >> ratified the Constitution either when he was born or when the
> > > >> Constitution was adopted. The United States was the same United
> > > >> States before and
> > > > after
> > > >> ratification.
> > > >> Historical continuity implies that the
> > ban in the
> > > >> Articles of Confederation on state discrimination against
> > > >> out-of-state
> > > >
> > > >> citizens by taxation or regulation is part of the Constitution,
> > > > although
> > > >> not stated. The norm was strongly felt, but unchallenged and so
> > > >> not written down in the Constitution.
> > > >> Historical continuity implies that Congress may
> > > >> commandeer state officers as it did under the Articles. Tax
> > > > requisitions
> > > >> were a commandeering of state officers for federal benefit under
> > > >> the Articles. The Framers assumed that requisitions of tax and
> > > >> similar commandeering would continue under the Constitution.
> > > >> Finally, historical continuity implies that
> > > >> Congress
> > > > has
> > > >> the general power to adopt all appropriate measures "for
> > the common
> > > >> Defence and general Welfare." The debaters assumed that federal
> > > > powers
> > > >> would be legitimate even though they were not enumerated
> > so long as
> > > > the
> > > >> powers fell appropriately within the national sphere.
> > They removed
> > > > the
> > > >> requirement in the Articles of Confederation that Congress have
> > > >> only
> > > > the
> > > >> powers "expressly delegated" to it, and they defended
> > that removal
> > > >> through the adoption of the Tenth Amendment
> > > >>
> > > >>
> > > >>Calvin H. Johnson
> > > >>Andrews & Kurth Centennial Professor of Law The
> > University of Texas
> > > >>School of Law 727 E. Dean Keeton (26th) St.
> > > >>Austin, TX 78705
> > > >>(512) 232-1306 (voice)
> > > >>FAX: (512) 232-2399
> > > >>Website: http://www.utexas.edu/law/faculty/calvinjohnson/cv.pdf
> > > >>_______________________________________________
> > > >>To post, send message to Conlawprof at lists.ucla.edu To subscribe,
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> > > >>
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> > > > or
> > > >>wrongly) forward the messages to others.
> > > >
> > > > _______________________________________________
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> > > _______________________________________________
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> >
> >
> > --
> > ---> GMAIL ACCOUNT IS JUST TEMPORARY<---
> > http://www.icannwatch.org Personal Blog: http://www.discourse.net
> > A. Michael Froomkin | Professor of Law | froomkin at law.tm
> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> > +1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
> > -->It's warm here.<--
> >
> >
> >
> >
> > --
> > ---> GMAIL ACCOUNT IS JUST TEMPORARY<---
> > http://www.icannwatch.org Personal Blog: http://www.discourse.net
> > A. Michael Froomkin | Professor of Law | froomkin at law.tm
> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> > +1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
> > -->It's warm here.<--
> >
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