This ISIS Citizenship Case Could Set a Terrifying Precedent

Hoda Muthana’s story is not unlike that of other children of immigrants. She was born in New Jersey and raised in Alabama, where she was studying for a business degree. Her father described her as religious, but worried that she might be surreptitiously talking to boys. That’s why few would have predicted that she would withdraw from the University of Alabama in 2014 and make her way to ISIS-controlled territory in Syria.

Now, with ISIS confined to a tiny pocket of Syria, Muthana says that she wants to return to the United States with her 18-month-old son. In doing so, she has triggered a dispute that could have far-reaching implications for American citizens the world over.

Muthana, who now lives in a displaced-persons camp in Syria, says she is prepared to face justice for her actions, which include sending tweets that exhorted Americans to commit acts of violence. The Trump administration argues, however, that not only is Muthana not an American citizen, but she was never eligible to be one, and so she cannot enter the United States. A lawsuit filed last week by Muthana’s father on her behalf at the U.S. District Court for the District of Columbia challenges that assertion, setting up a legal battle.

Muthana’s case raises broad questions about the protections Americans enjoy under the law, and whether a certain class of immigrants has a higher burden of citizenship. By no means are these questions new: They have been debated since well before the internment of Japanese American citizens during World War II. But the potential return of hundreds of citizens who joined ISIS or went to live in its self-proclaimed caliphate is forcing Western governments to reexamine their citizenship laws—partly because they have few legal avenues to deal with those who are returning. (A similar case in Britain is prompting an analogous debate there.)

The New York Times notes that nearly all of the 59 American men who went to fight for ISIS have been repatriated, but at least 13 American women and children have not—including Muthana, whose case is compounded by the fact that the Trump administration is denying the citizenship of someone the government had previously recognized as a citizen.

The United States is among a small number of countries that offer what is known as birthright citizenship, and Charles Swift, Muthana’s lawyer and the director of the Constitutional Law Center for Muslims in America, contends that by virtue of her birth in New Jersey, Muthana is an American citizen. Stripping someone of U.S. citizenship is not uncommon: The government has “denaturalized,” or revoked the citizenship of, hundreds of former Nazis for lying on application forms about their political affiliations, as well as other people who have committed immigration fraud. What is different in Muthana’s case is that the government has, in effect, retroactively stripped her of recognition as a citizen.

"That should be incredibly terrifying," Swift told me. "If they can do this to Hoda, they can do it to anyone."

This is a striking demonstration of the U.S. government’s ability to determine citizenship and its rights. Immigrants have prized American citizenship because, among other things, it accords their U.S.-born children the same rights and opportunities as other native-born Americans. It also offers the protection of the rule of law that their home countries sometimes lack. Muthana’s case illustrates how illusory those protections could be.

This is hardly the first such case in recent years. Since the start of the War on Terror in 2001, civil-liberties groups have complained about government actions against Americans that appear to deprive them of their rights. President George W. Bush’s administration was criticized for holding José Padilla, an American citizen, as an enemy combatant for three and a half years without trial. President Barack Obama was condemned over the mass surveillance of citizens, and excoriated for the drone strike in 2011 that killed Anwar al-Awlaki, the American-born radical preacher. His teenage son, also an American citizen, was killed two weeks later in another strike.

Muthana’s case bears some similarities to that of Shamima Begum, who traveled to ISIS-controlled Syria with two friends. She too is now in a camp. She too has a child. And she can't return to her family either. The British government stripped Begum of her citizenship, saying that she possessed Bangladeshi nationality as well, though the Bangladeshi government says that it will not admit her because she has never been a citizen. Begum’s and Muthanna’s cases might appear isolated, but they represent a political dilemma for Western nations that are grappling with what to do with their citizens who joined ISIS or moved to the group’s territory: Bring them back and try them for their actions while inflaming political debate at home, or strip them of their citizenship and be seen as weakening the rule of law.

In Muthana’s case, the consequences extend further still. The government’s position, that she was never eligible for citizenship, is a contentious one because, on the face of it, the facts surrounding her case aren’t controversial. Muthana was born on October 28, 1994, in Hackensack, New Jersey, to Ahmed Ali Muthana and his wife.

The Trump administration’s move centers on Muthana’s father. A former Yemeni diplomat, his position ended on September 1, 1994, more than a month before Hoda was born (the children of diplomats posted to the United States are ineligible for birthright citizenship).

According to the government, though, the U.S. Mission to the United Nations wasn’t officially notified that Ahmed Ali Muthana had left his diplomatic position until February 6, 1995, more than three months after his daughter was born. According to the lawsuit, the government maintained that this means he wasn’t “within the jurisdiction of the United States,” and so his daughter was not an American citizen. In other words, the case against Muthana appears to hinge on a filing delay.

The date of the government’s letter, January 15, 2016, suggests it was issued in the final days of Obama’s presidency. The Trump administration appears to be following the Obama administration’s legal justification for denying Muthana citizenship.

The lawsuit filed on behalf of Muthana’s father against President Trump, U.S. Secretary of State Mike Pompeo, and Attorney General William Barr says that the government’s rationale “contradicts [the government’s] prior interpretations of the Vienna Conventions on Diplomatic Relations that diplomatic immunity terminates at the time the diplomat’s position is terminated.”

The Trump administration has not publicly disclosed its legal logic for saying Muthana isn’t a citizen. The State Department did not respond to an email seeking comment about its position. Last week, Pompeo said in a statement that Muthana “does not have any legal basis, no valid U.S. passport, no right to a passport, nor any visa to travel to the United States.” Yet according to the lawsuit, she was issued passports twice: in 2005 and in 2014.

The U.S. government has in the past rendered people ineligible for citizenship because of a parent’s diplomatic work, Steve Vladeck, a professor of law at the University of Texas School of Law, told me. In one such case, the daughter of an Egyptian diplomat sued Hillary Clinton, then secretary of state, in 2010 over the State Department's refusal to issue her a passport. A lower court sided with the State Department because the woman's father had been a diplomat at the time of her birth in 1981.

The impact of Muthana’s case rests on how the government responds to the latest lawsuit: If the White House bases its argument on Ahmed Ali Muthana’s diplomatic status, then the dispute’s impact will be limited. But if the case becomes a referendum on whether a citizen can be denied reentry into the United States, then it can have major repercussions. Swift, the lawyer, told me that the administration’s position would essentially allow Muthana to escape the legal consequences of her actions. Muthana herself has told the Times that she knows what she faces if she is allowed to enter the United States.

“I ruined my life,” she told the paper. “I ruined my future.”