Russian Spies Plea Agreement – Unconstitutional Use of Exile?

by Peter Spiro

At least two of the Russian spies are naturalized US citizens — Vicky Palaez and her husband Mikhail Vasenkov (aka Juan Lazaro).  In Palaez’s case, at least, it looks like there was nothing fraudulent about her naturalization (presumably there’s a case that her husband’s was, though I haven’t seen anyone make it).

As part of the plea agreement, Palaez agrees to cooperate in “her immediate removal or expulsion” from the US, and “agrees never to reenter the United States following removal, for any purpose, without prior authorization” of the Attorney General.  If she re-enters without such authorization, the plea agreement will be null and void, and she’ll be subject to removal or prosecution.

This looks fishy to me — like banishment — and I wonder if there are any precedents.  Unlike Yaser Hamdi, there’s no indication that Palaez has renounced her citizenship.  Citizens can’t be deported — leaving aside the constitutional question, relevant sections of the Immigration and Nationality Act apply only to aliens.  Under international law, states must allow citizens to enter and remain on their territory.  Is this okay simply because it’s voluntarily undertaken as part of a plea?  The mechanism might present an end-run around the sticky question of whether terrorists and others can be expatriated.

http://opiniojuris.org/2010/07/09/russian-spies-plea-agreement-unconstitutional-use-of-exile/

4 Responses

  1. There are some vague precedents. Lincoln had Clement Vallandingham deported to the Confederacy and barred from the Union. Edvard Everret’s famous tale, Man Without a Country, is said to be about an associate of Aaron Burr’s, exiled for treason. It is said to be based on actual events, but I do not know the reason.

    Whether the government can banish a citizen is not the question here. The question is whether a citizen can accept such a condition as part of a plea agreement. Given that one can send oneself to jail by pleading, I don’t know why one couldn’t send oneself to Russia.

    Is there a constitutional right of residency that is not trumped by espionage? Treason?

  2. To:

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    I agree her case is different from the others, but depending on when she was naturalized (did it occur before or after her illegal activities), there are numerous questions on the Naturalization application to which she may have provided false information.
     
    The Natz form has changed over the years, but most of the questions have remained the same. The current form contains questions about past employment, foreign travel, whether you have ever been associated with any organization (including the Communist Party – tho I suspect few Russian spies are Party members these days), have you committed a crime for which you have not been arrested, have you given false or misleading information to a US Govt official, have you ever lied to a US Govt official to gain entry to the USA, are you willing to bear arms on behalf of the USA, do you support the Constitution, do you understand the Oath of Allegiance, and are you willing to take the Oath of Allegiance.
     
    But having said this, even if there is an argument to be made that she acquired US citizenship through fraud, in normal circumstances there would be a denaturalization proceeding.
     
    -Niels Frenzen

  3. Eugene, thanks for the comment.  I’m not sure that the fact that one can go to jail means it’s okay voluntarily to accept exile.  In Trop v. Dulles, the Supreme Court found compelled expatriation to be cruel and unusual punishment.  The question is whether plea agreements are subject to the same constitutional standards as convictions.  I assume one couldn’t agree to be drawn and quartered, or agree to a life sentence for shoplifting.  But I don’t have a handle on any nuance on this.

    Niels, Agreed.  I’m assuming that she started working for the Russians only after she was naturalized, in which case it would be pretty difficult to show that her naturalization was fraudulent (assuming no misrepresentations), and in any case as you point out she would have to be subject to a denaturalization proceeding.

    Just discovered that the UN Declaration of Human Rights prohibits arbitrary exile — implying that in some cases exile is consistent with international law. UNDHR art. 9 (“No one shall be subjected to arbitrary arrest, detention, or exile.”).

  4. Robert Vesco, Roman Polanski, Anwar al-Awlaki, anyone can volunteer to be placed in the same state as the Russians. You just have to commit a crime and flee overseas. Normally you jump bail and run for it, but this seems to be a case where the US covers its eyes and counts to 100 to give them time to get out of the country before the “ready or not here we come.”

    It is perfectly legal for the US to decide not to prosecute for now, but if you ever show your face around here again … Since all the suspects have dual citizenship and a place to go, agreeing not to prosecute if they bug out (which is not a plea bargain because it does not involve a judge, a plea, or a sentence) is a pretty good deal for all involved.

    If you need a term for this, it is something like “negotiated inactive fugitive status”, not exile.

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