How Do You Solve A Problem Like Muthana?
“You can look up Obamas schedule on the white house website. Take down that treacherous tyrant!”
“Go on drive bys, and spill all of their blood, or rent a big truck and drive all over them. Veterans, Patriots, Memorial, etc day … Kill them.”
These are the purported words of Hoda Muthana, a woman who left Alabama as a teenager to join ISIS in Syria. Muthana saw ISIS propaganda on the internet and somehow came away with the thought “this is for me”. So she stole money intended for her college tuition and took a flight to Turkey, later crossing into Syria. She posted a picture on Twitter of her passport and what appeared to be those of other women who had joined her, with the caption “Bonfire soon. No need for these anymore.” Four years, three husbands, and one child later, Muthana has decided she made a mistake and wants to return to the United States. And some people think she should be permitted to do so.
President Trump does not. Neither does Secretary of State Mike Pompeo. According to them, she is not a citizen and therefore has no right to return. This, however, appears to be at least half wrong. Muthana, born in New Jersey, was the daughter of a Yemeni diplomat. The Constitution is clear that children born to diplomats are not citizens by birth, which appears to be the official stance of the Trump administration as to Muthana. But documents released by Muthana’s lawyer appear to prove that her father’s post ended prior to her birth, which almost certainly means she has birthright citizenship.
Many argue even if she was an American citizen, she has forfeited her citizenship and has no right to come home. Some -myself included- are content to let Muthana lie in the bed she made and rest easier with one less person like her on our soil. Others -myself included- begrudgingly look to the law for a determination of the propriety of her return, and find much more gray area than one would hope.
For purposes of this analysis, it is assumed that Hoda Muthana is a citizen by birthright, which can be easily determined through State Department records. The next place we must look for answers is federal law. Specifically, 8 U.S.C. §1481, concerning “loss of nationality by native-born or naturalized citizens.” This section of the code provides several ways in which a person may lose or renounce citizenship. It is not a particularly lengthy statute, so we can break it down a little at a time. The section begins:
(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality—(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or(3) entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer; or
(A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or (B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or
Let’s stop here and take these first 4 clauses. The problem with applying these sections to Muthana’s case is that the United States does not now, nor has it ever, recognized ISIS as a foreign state, nor is it the “armed forces” or a “political subdivision” of a foreign state. ISIS is classified as a terrorist organization. While Muthana may have declared her de facto allegiance to ISIS, there is no record or evidence that she has become a naturalized citizen or declared allegiance to a foreign state. Nothing in paragraphs 1-4 of of subsection (a) is applicable. Moving on:
(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or
Paragraphs 5 and 6 are also easily dispensed with; there is no evidence that Muthana has gone before any diplomat or consulate to renounce her nationality, nor did she do so by “formal written renunciation” before a US government official.
(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.
Paragraph 7 is most closely aligned with Muthana’s actions. She undoubtedly joined with an enemy of the United States, though it may be a tough sell to prove she committed or attempted to commit treason by force; the only available evidence is her encouragement of others to do so, and giving aid and comfort to the enemy as the wife of three different ISIS fighters.
Did she “levy war”? Perhaps.
As Chief Justice in 1807 John Marshall clarified that mere conspiracy is not enough to constitute “levying war”; an actual assemblage of men was required. However, he clarified that “if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.” An argument could be made then that by her peripheral support and encouragement of acts of war against the United States, Muthana has forfeited her citizenship under Paragraph 7. There’s just one catch there, in that last sentence: it requires a conviction. In a courtroom, not the court of public opinion.
The final paragraph of this statute concerns the burden of proof in a controversy over citizenship:
(b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.
Muthana claims she is a citizen. The Stated Department says she is not, either by by birth or due to her actions. It is the burden of the United States to prove it “in an action or proceeding.” Currently, there exists no such proceeding, but Muthana has an attorney who has stated he would be taking legal action on her behalf soon. It is unclear what form the action will take, but it will perhaps fall under 8 U.S.C. §1501 (b):
If any person who is not within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States, such person may make application to a diplomatic or consular officer of the United States in the foreign country in which he is residing for a certificate of identity for the purpose of traveling to a port of entry in the United States and applying for admission. Upon proof to the satisfaction of such diplomatic or consular officer that such application is made in good faith and has a substantial basis, he shall issue to such person a certificate of identity. From any denial of an application for such certificate the applicant shall be entitled to an appeal to the Secretary of State, who, if he approves the denial, shall state in writing his reasons for his decision. The Secretary of State shall prescribe rules and regulations for the issuance of certificates of identity as above provided. The provisions of this subsection shall be applicable only to a person who at some time prior to his application for the certificate of identity has been physically present in the United States, or to a person under sixteen years of age who was born abroad of a United States citizen parent.
Under this provision, Muthana must appeal first to a diplomatic or consular office in the country in which she resides. The problem with that is that the United States does not currently have such office in Syria; the Czech Embassy is currently handling only the emergency needs of American citizens in Syria, if Muthana can even access these services from the refugee camp in which she resides. And if she is denied, she can appeal to the Secretary of State- and we already know his thoughts on the matter. It is likely this denial by Secretary Pompeo’s office that will form the basis for Muthana’s appeal with the courts, at which time the matter of her citizenship can be resolved.
Or, the United States could give up its contention that she is not a citizen and treat her as a criminal, as it has done with American ISIS fighters in the past. This may be the most workable solution, to bring her back in custody as a prisoner and treat her accordingly. Charge her with treason, if the DOJ determines it appropriate and feasible, try her, and strip citizenship if she is convicted.
But this solution is unpalatable to many, who distrust the ability of the justice system to handle the matter effectively. Muthana has shown herself to be a danger to this country, even if only by her words, thus far. She saw the barbarism and extremism of ISIS, their thirst for the blood of Americans, and found it appealing. She cheered when they succeeded in taking lives, and celebrated the martyrdom of her own husbands. But as the caliphate diminished, Muthana found her life getting exceedingly more difficult for her and her son. She says the final straw was when she had to feed her son grass. And so, she suddenly found the grass looking a lot greener across the globe in the country where she was born. And she wants to come home. She says she is sorry and regretful and made a terrible mistake.
Is she really?
Does she really regret throwing her lot in with a group who pride themselves on beheading innocent people all over the world, among other atrocities committed, or does she simply regret the loss of her own freedom and comfort? Would she some day be set free here, and if so, could she ever be trusted to be part of society? Or is she a proverbial wolf in sheep’s clothing, tasked with unleashing destruction at the right opportunity? We don’t know. We can’t know. And it is easy to understand why so many are happy to accept her informal renouncement of her citizenship and keep her far away from our soil.
Would it be so bad to deny someone who has done something as unforgivable as Muthana has her rights as a citizen? There are many quite willing to say she deserves it. But that is the slipperiest of slopes, a veritable vertical rock face with nothing but tyranny at the bottom. There are very few who offer much in the way of sympathy for Hoda Muthana. Even those who advocate for the existence of her citizenship and her return to the U.S. do so within a rubric of due process principles, not out of grace or pity.
If it is proven that Muthana’s father was acting as a diplomat at the time of her birth, we can have a different discussion. But as of now, it appears she is a citizen, and we must avail her of the processes due to an American citizen. That is, after all, the American way. And isn’t that the point?