Lawsuit in Muthana Case Raises New Issues

The father of Hoda Muthana, the young woman who fled the US to join with ISIS in Syria and now would like to come home, has filed a lawsuit asking that she be allowed to come back. I first wrote about the Muthana mess last week, when it seemed clear that the young woman was a U.S. citizen by birth. Her father was a Yemeni diplomat whose post, it appeared, ended prior to her birth. But an exhibit attached to the lawsuit throws shade onto that assumption- and onto the narrative that the decision to forbid her return is a Trumpian overreach.

The lawsuit was filed by Hoda’s father, Ahmed Ali Muthana, as “next friend” of Hoda and her young son. The complaint is “verified”, meaning that the filer has signed a sworn statement that the facts set forth in the complaint are true. Because Hoda Muthana is not able to verify the contents of the complaint with her sworn signature, her father is doing so on her behalf. The complaint seeks a declaration recognizing his daughter and her son as citizens, a mandate of relief that would obligate the U.S. to accept the pair into the country and “use all available means to do so”, and an injunction which would allow Mr. Muthana to send his daughter money to assist her return home without subjecting himself to criminal charges of aiding terrorism.

The facts set forth in the complaint allege that Mr. Muthana was terminated from his position as a diplomat and required to surrender is diplomatic identity card in June of 1994; Hoda was born in October of the same year. His wife, Hoda’s mother, began the process of applying for permanent residency earlier that year in anticipation of the loss of diplomatic status. Hoda Muthana was issued a birth certificate by the state of New Jersey, where she was born. Her first passport was issued in January 1995.

A decade later, the Muthanas sought a second passport for Hoda, but the State Department this time questioned Hoda’s citizenship because their records showed Mr. Muthana’s diplomatic status was in effect until February of 1995. Mr. Muthana produced a letter, on United Nations letterhead and signed by Russell F. Graham, Minster Counselor, Host Country Affairs, which stated that Mr. Mathuna’s diplomatic status ended no later than September 1, 1994. Apparently satisfied of Hoda’s citizenship, the State Department issued the passport.

In 2016, however, subsequent to Hoda’s joining with ISIS, the Obama administration sent a letter to her parents’ address in Alabama, notifying her that her passport had been revoked. The State Department had determined that the passport was issued “illegally, fraudulently, or erroneously”. The letter recognized the termination date of September 1, 1994, as indicated by the letter issued in 2004. However, the letter continued:

…the United Nations, Host Countries Affairs Section was not officially notified of his termination from this position until February 6, 1995. Therefore, your father remained in diplomatic status when you were born on October 28, 1994. As such, you wer not born subject to the jurisdiction of the United States, and did not acquire U.S. citizenship at birth pursuant to the Fourteenth Amendment to the Constitution…”

So, while President Trump appeared to declare via Twitter edict that Hoda Muthana was not a citizen and could not return, his words, and the subsequent agreement of Secretary of State Mike Pompeo, were actually echoing an Obama-era determination. While it certainly fits within the anti-immigration, anti-Muslim rhetoric expected from Trump, in this case, outrage is misplaced (to the extent outrage is appropriate at all).

The lawsuit acknowledges the position of the State Department but attempts to cite inconsistent prior positions of the government. Without a detailed dive into the cited case, suffice to say it is not directly analogous and is likely of dubious precedential value. ¹

The question of diplomatic immunity is at the heart of this case, and perhaps the courts are the best place to solve it. However, the government will likely ask the Court to dismiss Mr. Muthana’s lawsuit for lack of “standing”; normally, one cannot bring a suit on behalf of the interest of others except in certain circumstances. In 2010, the father of American citizen and terror suspect Anwar Al-Aulaqi filed suit as “next friend” against the U.S. government for placing Al-Alaqi on the “kill list”. The Court dismissed the suit, finding that the father lacked standing because 1)Al-Alaqi could have presented himself to the US embassy in Yemen and brought suit himself, were he not hiding from the government; and 2)his father was not committed to his son’s interests, because there was no indication Al-Alaqi wanted to avail himself of the Courts or justice system. Muthana’s father may have an easier time with the “standing” test, since there is no embassy at which she can present herself, and she has gone on record asking for the relief her father seeks on her behalf.

For now, we wait for the response of the U.S. government and for the legal proceedings to unfold. Hoda Muthana remains in a refugee camp with her child. And like any and all legal questions, the answer to whether she is permitted to return and under what circumstances is “it depends.”

1. The case involved a diplomat who was accused of committing a crime while still under diplomatic protection. The man did not leave the country when his status ended, and he was prosecuted. He challenged his indictment because the alleged incident occurred while he was still a diplomat. The Court agreed with the position of the State Department that U.S. jurisdiction exists “over persons whose status as members of the diplomatic mission has been terminated[,] for acts they committed during the period in which they enjoyed privileges and immunities…” This does not resolve the question presented in Muthana over when, exactly, Mr. Muthana’s immunity ended.