“Bonfire soon. No need for these anymore. Alhamdulillah. [Praise be to God].”
That tweet — and the American passport pictured in it — belonged to “ISIS bride” Hoda Muthana, a U.S.-born 24-year-old woman who joined ISIS in 2014. She says she regrets her decision to join the terrorist group and is locked in a high-profile court battle with the U.S. government as she tries to return to the United States.
President Trump tweeted that she should not be allowed to return to the U.S., and Secretary of State Mike Pompeo said he’d follow Trump’s directive to keep her out, saying the U.S. does not consider her a citizen. Muthana’s attorneys filed a complaint in federal court.
The case hinges on whether Hoda Muthana is a U.S. citizen. Muthana’s attorneys say she is and that she therefore has the right to return. The government says she is not and thus can be barred from entry. The case is in front of Judge Reggie B. Walton of the D.C. Circuit Court.
The first major court skirmish was on Monday, when the judge ruled the case would proceed at a normal pace, even though Muthana is in the custody of U.S.-allied rebel forces in Syria. Muthana’s attorneys argued the case should be expedited due to reports of U.S. forces drawing down in Syria. But the judge agreed with the government.
Here are five things to know as the case proceeds:
1) Muthana will likely be in trouble if she wins
If the judge rules in favor of Muthana’s argument that she has U.S. citizenship, it’s likely she will find herself facing criminal prosecution upon her return to America. Her decision to join ISIS and use social media to recruit and to encourage terrorist attacks could open her up to terrorism charges.
2) If she loses, she has no country
If the judge rules against Muthana’s citizenship, her attorneys say “she would be stateless, because she has no other state … and she would not be subject to prosecution because she would not be subject to any nation’s laws, except perhaps Syria’s. For the laws of the U.S. to extend to her, she would have to be a U.S. person.”
So while the U.S. would get to exclude her from the country, it may also lose its ability to prosecute her for her alleged crimes.
3) The citizenship question is key
Both sides agree Muthana was born in the United States. Where they disagree is whether Muthana’s father, who had been a Yemeni U.N. ambassador, was still protected by diplomatic immunity at the time of her birth.
If he was, then the diplomatic immunity that covered him would also extend to his family, including his newborn, meaning Muthana would not have been a natural born citizen. But if her father was no longer a diplomat, then diplomatic immunity would have no longer covered him and, according to the Fourteenth Amendment, Muthana would’ve been a citizen at birth.
Muthana’s attorney says her father was terminated as a diplomat on Sept. 1, 1994. Muthana was born on Oct. 28 that same year. In early 1995, the U.S. was notified of her father’s termination.
A complicating factor is that Muthana was issued a passport by the U.S. government, seemingly a recognition of her status as a U.S. citizen.
4) The U.S. says those factors make her a noncitizen
The Trump administration followed in the footsteps of the Obama administration, which argued in January 2016 that Muthana had never been a U.S. citizen and delivered a letter to her family’s home in Alabama informing them of that.
The government claims, “Muthana was born with diplomatic agent-level immunity because she was a member of the household of her father and because the United Nations did not notify the USUN [U.S. Mission to the United Nations] of his termination until February 6, 1995, her father held diplomatic-agency-level immunity at the time of her birth.”
They say because Muthana was born before the U.S. was notified of her father’s termination as a diplomat, “she was not ‘subject to the jurisdiction’ of the United States. As a result she did not acquire U.S. citizenship at birth.”
The government used this to justify revoking Muthana’s passport and keeping her out of the country.
5) Muthana says citizenship ‘cannot be revoked by fiat’
Muthana’s attorneys say the issuance and renewal of her passport is a recognition of her citizenship and that the government can’t simply decide that never happened.
They also argue diplomatic immunity ends when a diplomat is terminated, not when that diplomat’s termination is reported to another state, and that Muthana’s father no longer had that immunity when she was born meaning she was subject to the jurisdiction of the U.S. and is a natural born citizen.
And they say the logical extension of the government’s argument would “open the U.S. up to a wide range of malicious conduct by a malicious state … and would permit a nation to terminate an individual from a diplomatic position, then instruct that individual to commit crimes of espionage, or even simple acts of violence against United States citizens and residents, with immunity from prosecution.”
6) The judge sympathized with Muthana’s arguments
Judge Walton said this week that Muthana’s attorneys “make a very valid argument about when diplomatic status actually does expire.”
The judge also gave some credence to the idea that the government’s position could harm national security, saying: “I think counsel makes a good point that a country could terminate status, nonetheless use that person to engage in espionage activity and then claim after the fact that, well, the person still is protected by diplomatic immunity because notification had not been given. That doesn’t seem to me to make sense.”
However, Walton has not made a ruling on this issue yet.
[Opinion: ‘ISIS bride’ Hoda Muthana was an ISIS propagandist, not some brainwashed child]
