Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and of counsel to the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own. View more opinion on CNN.
I received an interesting call from my oldest daughter earlier this week. Kathryn ( “Casey” to everyone but me) is a dedicated inner-city elementary school teacher in Denver whose self-described progressive politics are far to the left of my own more centrist approach.
Kathryn happily advised me that she had finally found a controversial news story about which both she and I might agree. This would be a rare event – our only consistent shared views relate to the enduring superiority of classic rock. She had concluded that Hoda Muthana, the US-born ISIS bride – a widow and mother of an innocent toddler – should be stripped of her American citizenship and denied admittance to the United States for her treasonous acts.
Much to Kathryn’s surprise, I had to disagree.
As a lawyer, however much I might share the instinct that Ms. Muthana richly deserves banishment for her betrayal of country, I recognize the Constitution of the United States does not permit such a sanction. If Muthana is, as she claims, a “birthright” citizen of the United States, she cannot be involuntarily stripped of her citizenship for any reason.
She should be returned to the United States and granted due process in facing whatever legal proceedings are warranted against her. Our belief in the law is a key reason that America intervened in Syria to fight the barbarous and lawless acts of the terrorists Ms. Muthana so fervently admired until their caliphate was pounded into the desert sands. She went so far as to use social media to encourage ISIS sympathizers to kill Americans.
Hoda Muthana is the daughter of a former Yemini diplomat, who in 2014 used her University of Alabama-Birmingham tuition money to secretly fund a trip to ISIS-held Syrian territory. The so-called “ISIS Bride” at age 19 allied herself with the infamous terrorist organization and sequentially married three of the caliphate’s fighters. Her first two husbands died in battle. During her second marriage she conceived a son who is now around 18 months old and resides with her in a Kurdish-run refugee camp. Muthana is now 24 years old.
After the collapse of ISIS, Ms. Muthana began an effort to repatriate to the US. She claims that she now regrets the error of her ways and wants to return to America with her young son. Upon hearing of the Muthana matter both President Trump and Secretary of State Mike Pompeo have said they will not permit her return to the United States and they deny the legitimacy of her citizenship claim.
Even if Mr. Trump is wrong and Ms. Muthana’s claim of birthright citizenship is proven, she can still be prosecuted for a variety of criminal offenses upon her return to the United States. State and federal criminal codes are replete with serious felony charges relating to Americans who conspire with terrorist organizations for the purpose of engaging in acts of violence on Americans, and others at home or abroad.
Providing material support to terrorist organizations is also a criminal offense and her alleged actions as an ISIS propagandist would likely be charged as such.
Although American law does not permit the government to strip the citizenship of a natural born citizen, the law does permit the voluntary renunciation of citizenship. Many might think that joining a terrorist organization dedicated to the violent destruction of the American secular state would be an act of such “renunciation.”
The US Immigration & Nationality Act does not agree. One can only renounce US citizenship by signing an oath of renunciation in the presence of a US consular or diplomatic officer. Renunciations that do not meet these conditions have no legal effect.
None of Ms. Muthana’s known actions constitute a valid renunciation of citizenship.
One question remains. Is Hoda Muthana truly a natural born American citizen? Her family has produced a birth certificate reflecting her birth on October 28,1994, in Hackensack, New Jersey. Her family has hired attorneys who recently filed a lawsuit claiming that she is a birth citizen and a federal judge in Washington, DC has set a hearing for March 4. Her family’s lawyers also assert that she has citizen rights as her mother was a permanent US resident at the time of the birth.
Since her father came to this country as a Yemeni diplomat, it is likely that US Immigration authorities will claim that as the child of a foreign diplomat Hoda was not entitled to birth citizenship status under the “jurisdiction” clause of the 14th Amendment.
Foreign diplomats enjoy diplomatic immunity and are technically not viewed legally as “under the jurisdiction” of the United States. Their children are therefore deprived of American birth citizenship rights as they remain citizens of the diplomat’s home country.
In January 2016, the US government wrote to Ms. Muthana that they were officially revoking her passport because UN records showed that her father didn’t lose diplomatic status until months after her birth. While she could have challenged this finding, she was already with ISIS by that time.
Revoking a passport is a far cry from revoking their citizenship, however. Her father is disputing this point about the timeline and his daughter’s citizenship, claiming that he had resigned as a diplomat one month before his daughter’s birth – according her the right to “natural born” status.
Her lawyers also say since she was previously issued a US passport (a passport, incidentally, that she promised to “burn” after joining ISIS) the government has previously conceded her “natural born” status. There also remain some unanswered questions about her mother’s status at the time of her birth.
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If a court finds that the UN records show the proper timeline and her father’s resignation was not officially filed until after Hoda Muthana’s birth, such a technicality would void her claim of US birth citizenship on a technicality. In that instance, she could be returned to Yemen, not the US, despite the fact that both of her parents live here now.
The questions presented are complex; extended federal litigation will have to resolve them, a process that will likely take time. In the meantime, my daughter and I will have to look for another important issue where we can agree for the first time in family history.