Indict the ‘ISIS Bride’

By Andrew C. McCarthy

Thursday, February 21, 2019

I had a column in the New York Post yesterday morning about the so-called “ISIS bride,” Hoda Muthana, who is detained in a Syrian refugee camp and now pleading to come back home to her family in Alabama. I argued that, despite the fact that she has treasonously waged war against our country, she had a right to be readmitted if she tried to enter because she was — according to the facts available at the time — a natural-born American citizen.

Now Secretary of State Mike Pompeo has announced that Muthana will not be allowed to reenter the U.S. because she is not an American citizen: While born in America, she was the daughter of a diplomat and thus not subject to the jurisdiction of the U.S. As the secretary put it in his statement, “Ms. Hoda Muthana is not a U.S. citizen and will not be admitted into the United States. She does not have any legal basis, no valid U.S. passport, no right to a passport, nor any visa to travel to the United States.”

This conclusion is disputed by Muthana’s family and allies, and they may have a case. I would strongly urge the Justice Department to file an indictment against Muthana for treason, material support to terrorism, and any other readily provable offenses. She is less likely to press the issues of citizenship and right to enter if she understands that she faces prosecution and, very likely, lengthy imprisonment if she succeeds in coming here.

But it’s worth taking a closer look at the citizenship question itself. To my mind, the concept of citizenship implies not just the benefits of being a full-fledged member of the body politic, but also a duty of fealty to the nation. In a rational world, then, a citizen who made war against the United States would be stripped of citizenship.

Alas, that is not the law. As I related in the Post column, Supreme Court precedent holds that natural-born citizens may not have their citizenship revoked without their consent. (This is in contrast to naturalized citizens, who may have their citizenship revoked if they join a subversive organization within five years of being naturalized, but this is not relevant to Muthana’s case.)

Reports indicate that Muthana, the daughter of Yemeni immigrants, was born in New Jersey in 1994. For the most part, she appears to have grown up in Alabama, attending high school and starting college there. As noted at National Review when the issue is debated from time to time, the prevailing interpretation of the 14th Amendment generally provides for birthright citizenship: If you were born here, you are a citizen, regardless of whether your parents were citizens — even regardless of whether your parents were legally in the United States. But there is an exception, and the State Department is seizing on it here.

According to the New York Times, government officials contend that Muthana’s father was not merely a Yemeni immigrant but a diplomat of that country. Children born of diplomats are deemed to be citizens of the diplomat’s sovereign. Apparently, Muthana’s camp concedes that Muthana père was a Yemeni diplomat, but contends that she was born 30 days after Yemen discharged him from his diplomat position. We are not told what his immigration status supposedly was at that point, or if he had a legal status. But Muthana would no doubt argue that even if she was an illegal alien, she’d be as entitled to birthright citizenship as any other child of an illegal alien born in the U.S.

Pompeo emphasized that Muthana does not have a valid U.S. passport or a visa to travel to the U.S. That is true, but probably irrelevant. Passports and visas are just forms of travel authorization. They have no bearing on whether an American citizen may be denied entry into her own country. If an American citizen presents herself at a port of entry, the government has no authority to bar the citizen from entering (although the citizen may, of course, be detained while the authorities make certain that she is who she claims to be; and she may be prosecuted for violating travel regulations).

The Times further reports that Pompeo is taking a hard-nosed position here because President Trump has directed him “not to allow Hoda Muthana back into the Country” — as the president put it on Twitter. It is entirely appropriate for the official constitutionally responsible for protecting the nation from foreign threats to direct his subordinates to take all legal steps to prevent a terrorist enemy combatant from entering the country. But, to reiterate, if Muthana is an American citizen, she has the right to enter the U.S. if she presents herself at a port of entry; she may not be barred just because the president wants her turned away.

Again: If the president and the secretary do not want Muthana to try to come back to the United States, the best strategy is to have the Justice Department indict her on serious felony charges. She may seek another alternative if she knows the risk of coming back here is decades of imprisonment. Of course, Muthana may decide to come anyway. After all, (a) she might see life in an American prison as better than her other alternatives, and (b) if she is an American citizen, there is a good argument that her young son is a citizen, too — he’d have a more promising chance of survival and a decent life here than in Syria (or wherever else in that godforsaken region they could end up).

In any event, the State Department has made its decision. Now it is up to Muthana’s supporters to establish her citizenship if they can, and for the Trump administration to indict her if it chooses.