If the American-born woman who joined the Islamic State in Syria and now wants to return home is a citizen of the United States, what is she owed by her government?
President Trump announced in a tweet on Wednesday that he had instructed his secretary of state, Mike Pompeo, “not to allow Hoda Muthana back into the Country!” Pompeo proclaimed in a statement the same day that she “is not a U.S. citizen and will not be admitted into the United States.”
Swift responded Thursday with a complaint in the U.S. District Court for the District of Columbia, filed on behalf of Muthana’s father, Alabama resident Ahmed Ali Muthana, who is mounting a legal campaign for the homecoming of his daughter and her 18-month-old son. In 2014, she left her life as a student at the University of Alabama at Birmingham and ventured to Syria to marry an Islamic State fighter. She escaped in December from ISIS-held territory and surrendered to Kurdish forces, who placed her in a refugee camp with her child.
Now, she says she is prepared to come home and face the consequences of her actions, so that her son can grow up as an American citizen. “I know I’ve ruined my future and my son’s future and I deeply, deeply regret it,” she told the Guardian, which reported that she was the lone American of about 1,500 foreign women and children in the camp in northeastern Syria. Two hundred miles away, U.S.-backed forces were surrounding the final enclave of the Islamic State, whose reign of terror Muthana had once cheered on social media.
The case of the “ISIS bride” raises complex questions about indoctrination and violence, as well as about birthright citizenship. It parallels one that has divided Britain, where the British government has moved to strip citizenship from Shamima Begum, who left London in 2015 to join the Islamic State at the age of 15. Jeremy Corbyn, the leader of the opposition Labour Party, protested that the teenager had a “right to return.”
The lawsuit in U.S. federal court contends that Muthana, who was 20 when she left, enjoys an equivalent right. It seeks to compel the Trump administration to recognize her citizenship, which the young woman’s attorneys say she acquired at the time of her birth in Hackensack, N.J., and to “accept Ms. Muthana and her son back into the United States and to use all available means to do so.”
“When the Constitution ceases to rule, then it’s rule by tyranny,” Swift said in an interview Thursday with The Washington Post.
The nation’s highest principles, he said, “matter most when they’re inconvenient,” tested by people accused of heinous acts.
“Citizenship is a fundamental constitutional right, the most valuable right you will have,” he said. “If it can be taken away, then it must be done with due process of law. Where citizenship is concerned, that’s a judicial hearing. There has to be a process. You can’t simply say it. You would have to prove it.”
The State Department maintains that no such process is required, as it claims Muthana is not, and has never been, an American citizen. She stands outside of the 14th Amendment’s guarantee of birthright citizenship, the government argues, because her father, who is now a naturalized citizen, was formerly a Yemeni diplomat under the jurisdiction of his home country. U.S. Citizenship and Immigration Services guidelines specify an exception to birthright citizenship for children not born “subject to the jurisdiction of the United States,” as the 14th Amendment requires.
“She may have been born here,” Pompeo said Thursday on NBC’s “Today” show. “She is not a U.S. citizen, nor is she entitled to U.S. citizenship.” This is because she was born to a diplomat, he said.
But documents provided by Muthana’s lawyers indicate that her father had been discharged from his diplomatic position by the time of her birth on Oct. 28, 1994, by which point her mother had also gained permanent residency status. When the government revoked the young woman’s passport in January 2016, it stated in a letter that she was not a birthright citizen because her father’s termination had not been officially documented until February 1995 — a claim disputed by the family’s lawyers, who point to a notice from the United States Mission to the United Nations dating the end of his service to Sept. 1, 1994.
The notice, signed by a U.N. official, was used by Muthana’s father when he was applying for a passport on behalf of his daughter, then a minor, in 2004. The government issued the passport in January 2005, and the travel document was renewed before she left for Syria more than four years ago, when she disappeared after telling family she was going to a school event.
“It is inconceivable to me that the government is unaware of its own records and letters,” Swift said. “They may not have been aware that Mr. Muthana had saved them.”
The contest over the young mother’s citizenship — and the disputed timeline on which it turns — is at the nub of the case, said Stephen I. Vladeck, a professor at the University of Texas School of Law. If the family’s lawyers win their argument that she enjoys the protections of citizenship, any defense mounted by the government would unfold on “novel territory,” he told The Post.
“I’m not familiar with a prior episode in which the government refused to allow a U.S. citizen to enter the United States,” he said. “I really don’t think the government would want to argue that it has the power to maroon citizens overseas.”
Should her citizenship be established, the government lacks grounds to rescind it, the complaint argues, pointing to judgments issued by the Supreme Court as well as to federal statute.
In a 1958 ruling in Nishikawa v. Dulles, which arose when American officials denied a passport to a U.S.-Japanese citizen conscripted to serve in the Japanese military during World War II, the Supreme Court found that American citizenship is a “constitutional birthright” for those born on American soil — a guarantee that “neither the Congress, nor the Executive, nor the judiciary, nor all three in concert, may strip away.”
For a native-born or naturalized citizen to “lose his nationality,” U.S. law requires a “formal declaration of allegiance to a foreign state or a political subdivision thereof.” The complaint observes that, “ISIS is not and has not been recognized as a state by the United States, or any country.” It further argues that Muthana’s actions “do not meet the definition of treason,” the only crime defined in the Constitution, which further requires two witnesses for a conviction.
“Things like burning your passport, pledging allegiance to a criminal organization — those don’t get you there,” Swift said.
The State Department didn’t have an immediate response to the complaint, a spokesman told The Post early Friday.
The legal filing affirms the young woman’s desire to return to the United States despite her expectation that she will face “criminal prosecution for alleged conduct for which she otherwise could not be charged.”
“Having her citizenship validated is not a prize,” Swift said.
If the “ISIS bride” is a U.S. citizen, she is owed certain rights, but she also bears responsibility “for all of her conduct before U.S. courts,” he noted. “It’s a significant punishment, and she’s willing to bear it.”
Why?
“The answer is an 18-month-old child,” her attorney said. “If she’s a citizen, he’s a citizen, and he gets a life. She said, ‘I ruined mine.’ She doesn’t want to ruin his.”
Louisa Loveluck and Felicia Sonmez contributed to this report.
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