Published by The Lawfare Institute
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In the past few days, two young women who left their home countries to join the Islamic State in Syria announced their desire to return home with their children. Hoda Muthana, from the United States, and Shamima Begum, from the United Kingdom, both married Islamic State fighters and had children in Syria. But neither the U.S. nor the U.K. will allow their return.
The legal bases for the two countries’ positions, however, are starkly different, and those differences highlight their different conceptions of citizenship and the fascinating and controversial doctrine of expatriation—the loss or relinquishment of citizenship.
As always, much depends on the facts, and we know only what has been reported. Based on those reports, Hoda Muthana was born in New Jersey in 1994 to a father who had recently been a Yemeni diplomat but whose diplomatic post had been terminated one month prior to her birth. She has been issued two U.S. passports in the past, one as a child and a second shortly before she left to join the Islamic State. She apparently traveled on this second passport to Istanbul in 2014, was smuggled into Syria, and then posted a picture on Twitter of herself and several others holding their passports with the heading “Bonfire soon, no need for these anymore.”
During her time with the Islamic State, Muthana advocated violence and supported the terrorist group through her Twitter account. For example, one tweet urged: “Americans wake up! Men and women altogether. You have much to do while you live under our greatest enemy, enough of your sleeping! Go on drivebys, and spill all of their blood, or rent a big truck and drive all over them. Veterans, Patriots, Memorial, etc. day … Kill them.”
According to information reported by the New York Times and the Guardian, upon arriving in Syria, Muthana was placed in a house for single women and eventually paired with an Islamic State fighter for marriage. She ultimately entered into three arranged marriages during her time with the Islamic State. Her first two husbands were killed fighting in Syria and Iraq, and she divorced the third husband after a brief period. She also had a son, who is now 18 months old, with her second husband.
In January 2019, Muthana fled the Islamic State’s diminishing territory with her son and was eventually captured by Kurdish forces. She and her son now reside in the al-Hawl refugee camp in northern Syria. And she wants to bring her son home to the United States.
Muthana has expressed deep regret for her actions, saying she “didn’t appreciate or maybe even really understand how important the freedoms that we have in America are.” “To say that I regret my past words, any pain that I caused my family and any concerns I would cause my country would be hard for me to really express properly.” Through her attorney, she has also indicated a willingness to face the legal consequences of her actions in the American justice system.
According to CNN, at the age of 15, Shamima Begum, who was born and raised in the United Kingdom, flew out of London’s Gatwick Airport with two other classmates in 2015 and entered Syria to join the Islamic State. She was a British citizen, and it is unclear whether she holds dual citizenship or has ever been a citizen of another country.
Initially placed into a house for single women like Muthana, Begum says she applied to “marry an English-speaking [ISIS] fighter between 20 and 25 years old.” A little over a week later, she married a Dutch national fighting for ISIS.
Several weeks ago, Begum fled from the Islamic State as the group made its last stand in Syria. She ended up, like Muthana, in the al-Hawl refugee camp. She initially expressed a desire to return to Britain to have her child. According to news reports, she eventually gave birth in the camp and, in interviews, has asserted that she was simply a housewife during her time with the Islamic State and never engaged in recruiting or propaganda or did anything dangerous. She also said she had been aware of the executions and beheadings perpetrated by the Islamic State before joining the group and “was OK with it,” because, from what she had heard, those actions were allowed by Islam.
Both the United States and the United Kingdom have rejected the women’s pleas to return home, claiming the women have no right to return because they are not citizens. But those claims appear to rest on entirely different foundations.
The U.K. has asserted its intent to strip Begum of her British citizenship. Under a British law passed shortly after 9/11 and since amended, the government can revoke an individual’s citizenship if it is “conducive to the public good” and would not leave an individual stateless. The British government sent a letter to Begum’s mother indicating its intent to revoke her daughter’s citizenship pursuant to this authority and asking her to notify her daughter of the decision and of her rights to appeal it.
The U.S. has also indicated that it will not allow Muthana to return. But the grounds for that position are not entirely clear. In a statement, Secretary of State Mike Pompeo asserted that “Ms. Hoda Muthana is not a U.S. citizen and will not be admitted to 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.” President Trump also weighed in on Twitter, affirming that he had “instructed Secretary of State Mike Pompeo, and he fully agrees, not to allow Hoda Muthana back into the Country!” Pompeo has asserted that Muthana has never been a citizen because she was born to a foreign diplomat.
The framework governing Begum’s situation is relatively straightforward, even if the application of the law to the particular facts of her case are not. British law permits citizenship stripping, with certain substantive and procedural requirements. Most notably, Begum’s citizenship may not be revoked if doing so would render her stateless.
Reports indicate that Begum may have, or may be able to acquire, Bangladeshi citizenship because her mother holds a Bangladeshi passport. But Bangladesh has asserted that Begum is “not a Bangladeshi citizen” and has “never applied for dual nationality with Bangladesh.”
If Begum is a naturalized citizen, the U.K. may revoke her citizenship even if she is not presently a Bangladeshi citizen, however. That is because under current law, revocation of citizenship obtained through naturalization is still permissible if the government “has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom to become a national of such a country or territory.”
Accordingly, Begum’s citizenship will likely turn on whether or not revocation will render her stateless, which includes the question of whether the government has reasonable grounds to believe she may be able to become a Bangladeshi citizen. In response to questions about the revocation, the U.K. has indicated that its “decisions to deprive individuals of citizenship” are “not taken lightly,” and thus has presumably analyzed this issue and believes that it will be able to satisfy the legal requirements for revocation and demonstrate that it will not render Begum stateless.
The legal issues surrounding Muthana’s return, however, are more complex and potentially involve a collection of different legal doctrines, several of which Steve Vladeck has helpfully unpacked. The United States’s position, as expressed in Secretary Pompeo’s statement and in a 2016 letter from the State Department to Muthana’s parents revoking her passport, is that Muthana is not, and has never been, a citizen. The administration has not indicated whether it would allow Muthana to return if, in fact, she is a citizen.
As Vladeck and others have explained, the question of whether Muthana was ever a U.S. citizen is largely dependent on the facts surrounding her birth and the status of her father at that time. Little attention has been paid to the status of Muthana’s mother, but the lawsuit filed on Muthana’s behalf claims that her mother’s status as a lawful permanent resident also makes her a citizen.
The Citizenship Clause of the Fourteenth Amendment grants U.S. citizenship to all persons “born or naturalized in the United States and subject to the jurisdiction thereof.” Federal regulations explain that a “person born in the United States to a foreign diplomatic officer accredited to the United States ... is not subject to the jurisdiction of the United States.” Accordingly, that person is “not a United States citizen under the Fourteenth Amendment to the Constitution.” The regulations also define who is considered a “foreign diplomatic officer” for purposes of the Fourteenth Amendment.
If Muthana’s father was, at the time of her birth, a “foreign diplomatic officer” within the meaning of the regulation, she would not be a citizen unless she could claim citizenship based on her mother’s status. But, according to her lawyer, her father was not a diplomatic officer at that time. And it appears that the State Department has already considered that question and agreed that Muthana is a citizen because it issued her a U.S. passport on two separate occasions before reversing itself in 2016 when it revoked Muthana’s passport.
When Muthana’s parents applied for a passport for her as a child, her father submitted a letter from the United Nations proving that he had been discharged from his diplomatic post prior to her birth. But in 2016, her father’s lawsuit alleges, the State Department reversed that determination. The 2016 letter acknowledged that Muthana’s father’s post had terminated on Sept. 1, 1994, but asserted that because the relevant U.N. body had not been informed until February 1995, after Muthana’s birth, she was still not subject to the jurisdiction of the United States at birth and, thus, not a citizen.
Muthana contests that claim, both on the facts and on the law. She claims that diplomatic immunity terminates at the time a diplomat’s position is terminated, or after a “reasonable time for departure has passed,” and thus she was subject to the jurisdiction of the United States at birth given the passage of almost two months between her father’s termination and her birth. And she also has provided a letter demonstrating that the relevant U.N. body issued a letter prior to her birth acknowledging the termination of her father’s position, contradicting the State Department’s 2016 claim that it was not aware until February 1995.
The State Department agreed with her once but then reversed itself in 2016. Neither conclusion is binding, but the initial agreement and the issuance of two passports to Muthana certainly provides strong evidence that her claim to citizenship is substantial. And, along with the lawsuit filed on her behalf, U.S. law provides Muthana a mechanism to challenge the secretary of state’s conclusion that she is not a citizen, even from outside the United States.
Barring the Return of a Citizen
If Muthana did become a U.S. citizen at birth, then the United States’s position that she may not return becomes much less tenable. Although the Supreme Court has never directly addressed a situation such as this one, it has indicated on several occasions that a citizen has an absolute right to enter and reside in the U.S.. The court has said that a U.S. citizen would be entitled to “the absolute right to enter its borders”; that it is a “fundamental right, inherent in citizens of free governments, peacefully to dwell within the limits of their respective states ... and to have free ingress thereto and egress therefrom”; and that congressional acts barring entry “do not and cannot apply” to citizens. Moreover, the refusal to allow a citizen to return to her country would likely amount to banishment, which the Supreme Court has declared a “fate universally decried by civilized people” and which would potentially run afoul of the Eighth Amendment’s ban on cruel and unusual punishment.
It is true that U.S. law, subject to certain exceptions, makes it a crime for any citizen to enter or attempt to enter the United States without a valid U.S. passport. And the secretary of state has authority to deny or revoke a passport based on national security concerns, authority the State Department has apparently exercised in revoking Muthana’s passport when she traveled to Syria. Thus, Pompeo could potentially refuse to issue Muthana a new passport on national security or other relevant grounds.
However, if the United States attempted to enforce the prohibition against returning to the U.S. without a passport or otherwise deny Muthada an opportunity to return, it would likely run into significant constitutional objection. In recognition of the right of citizens to return to the U.S., the regulations governing the revocation or denial of a passport expressly allow for the issuance of a special passport valid only for direct return to the United States. And one court of appeals has held that such enforcement is unconstitutional, reasoning that it is “inherent in the concept of citizenship that the citizen, when absent from the country to which he owes allegiance, has a right to return, again to set foot on its soil.”
The U.S. could also attempt to take other actions to prevent Muthana’s return as a practical matter, such as placing her on the no-fly list. If the right to return to one’s country of citizenship is a fundamental right, however, burdens on that right would also be subject to constitutional scrutiny. In one constitutional challenge to inclusion on the no-fly list, for example, a court opined that a citizen’s right to re-enter the U.S. is not limited to simply stepping over the border because “at some point, governmental actions taken to prevent or impede a citizen from reaching the border infringe upon the citizen’s right to reenter the United States.”
In short, if Muthana is, in fact, a U.S. citizen, she likely has a fundamental—and perhaps absolute—right to return to the United States. Any action taken by the government to thwart or infringe on that right would raise significant constitutional issues.
But why can’t the United States do as the United Kingdom has done with Begum and strip Muthana of her citizenship, thus extinguishing her right to return and resolving the constitutional issues? The answer lies in the different conceptions of citizenship in the two countries and the concept of expatriation.
Expatriation—the loss or relinquishment of citizenship—has a long and fascinating history in the United States. Originally, the term was understood as an individual’s inherent right to relinquish citizenship in one country and instead pledge allegiance to another. The Expatriation Act of 1868, for example, declared expatriation “a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.” But over time the term took on a slightly different meaning. As the U.S. moved from welcoming immigration and new citizens from all over the world—which, at a time when dual citizenship was not common, depended on those immigrants’ ability to renounce their former citizenship and become citizens of the United States—to trying to restrict immigration and exclude particular classes and races of people at the beginning of the 20th century, expatriation began to be understood as a governmental authority to revoke citizenship.
In the middle of the 20th century, on the precipice of World War II, the U.S. began to formally assert the authority to revoke an individual’s citizenship against his or her will. The Supreme Court initially upheld that authority, at least in part, in a 1958 opinion concluding that Congress had the constitutional authority to provide for the “withdrawal of citizenship” and the “termination of citizenship” for an individual who had voted in a foreign election. But the court reversed itself nine years later in Afroyim v. Rusk, concluding that Congress lacks authority to revoke U.S. citizenship conferred by the Fourteenth Amendment and that citizens cannot lose their citizenship unless they voluntarily relinquish it.
The Afroyim decision, which was split 5-4, makes it impossible for the United States to pass a law similar to the U.K. law that allows British officials to revoke Begum’s citizenship. The Fourteenth Amendment makes all persons born in the United States, and subject to its jurisdiction, citizens. And, under Afroyim, Congress has no power to later alter that status. Under current doctrine, a citizen thus has “a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.”
The Afroyim decision, however, has not stopped Congress from attempting to remove the citizenship of certain disfavored individuals, while also satisfying the requirements of the Constitution. And some of those attempts were motivated by the Islamic State’s recruitment of foreign fighters and designed specifically to address situations such as Muthana’s.
The law at issue in Afroyim, Section 349 of the Immigration and Naturalization Act, is still on the books and provides that a citizen of the United States “shall lose his nationality” if he “voluntarily performs” any of a list of enumerated acts “with the intention of relinquishing United States nationality.” The last requirement—that the individual specifically intends to relinquish citizenship—was added to the provision after Afroyim to satisfy the constitutional requirements it established.
Pursuant to Section 349, the United States can revoke or strip the citizenship of an individual against his or her will if the government can prove that the person performed one of the specified acts with the requisite specific intent to relinquish citizenship. Not an easy task, no doubt, particularly if the person is herself contesting expatriation and expressing the contrary intent. But not an impossible task, either. That is particularly true because Section 349 erects a presumption that a person performing one of the enumerated acts did so voluntarily.
As Vladeck notes and others have recognized, however, Muthana’s citizenship could not be revoked pursuant to this section even if the government could prove that she joined the Islamic State with the specific intent to relinquish her U.S. citizenship. The expatriating acts currently listed in Section 349 derive largely from the original 1940 act and administrative practice predating it, and they do not account for the existence of non-state terrorist organizations such as the Islamic State. “[T]aking an oath or making an affirmation or other formal declaration of allegiance to a foreign state” is one ground for expatriation, for example. But an oath or declaration of allegiance to the Islamic State would not count because the Islamic State is not a foreign state. Similarly, joining “armed forces” engaged in hostilities against the United States is grounds for expatriation, but only the “armed forces of a foreign state,” which would again not include joining the Islamic State’s forces. Treason and bearing arms against the United States are also grounds for expatriation. But those provisions are applicable only “if and when” an individual has been convicted of those acts. Given the difficulty of proving treason and the fact that Muthana very likely did not “bear arms” in a traditional sense, a conviction of either offense would appear very unlikely in her case—and certainly has not yet occurred.
A number of legislative proposals since 2010 have attempted to update Section 349 to account for terrorist organizations and armed forces not associated with a foreign state. Some of these were bipartisan, and some more extreme than others. Draft legislation known as the Patriot Act II, which was proposed shortly after 9/11, would have added “joining, serving in, or providing material support ... to a terrorist organization” as an expatriating act. And it would have also made the voluntary commission of that act prima facie evidence that the act was done with the intention of relinquishing U.S. nationality. In other words, rather than requiring the government to prove that an individual specifically intended to relinquish her citizenship, the legislation would have required an individual such as Muthana to prove that she did not specifically intend to relinquish citizenship.
The most recent legislative proposal, known as the “Expatriate Terrorists Act,” would have similarly amended Section 349 to include numerous acts related to foreign terrorist organizations, including making an oath or affirmation of allegiance to a foreign terrorist organization, joining the armed forces of a foreign terrorist organization, accepting an office or employment with a foreign terrorist organization and providing material support to a terrorist organization. None of these proposals has yet been successful. But in light of Muthana’s situation, the impetus for these legislative proposals may be reignited.
If such legislation were passed, Muthana’s actions would almost certainly fall within one of those additional categories. At the very least, the government could likely make a strong case that they do. But enacting legislation after Muthana had already engaged in one of the new expatriating acts, and attempting to apply it to revoke her citizenship or that of similarly situated individuals, would of course raise significant constitutional questions about whether the legislation could be applied retroactively. But given the Trump administration’s forceful stance against the re-admission of Muthana to the U.S., and the potential that there are other Americans who are similarly situated in refugee camps and in custody in Syria and the Middle East, it would not be surprising to see renewed calls for such legislation.
Even assuming such legislation passed, however, the constitutional questions surrounding expatriation and citizenship remain unsettled in the U.S., in part because the authority granted in Section 349 has been invoked so rarely and because history has distorted the concept of expatriation. Section 349 requires the government to prove a specific intent to expatriate, but it continues to allow for involuntary expatriation on the basis of enumerated acts—an authority that, I argue in a recent paper, is not consistent with the historical understandings of expatriation and citizenship. Though Congress may decide to take action if it is not satisfied with the resolution of Muthana’s plight, any legislation would represent only the beginning of the legal dispute over expatriation and a citizen’s right to return home.
Citizenship thus has a much different status in the U.S. than in the U.K. Under British law, citizenship may be revoked by a single official, with an opportunity for the individual to seek review of that decision. And the standards governing revocation are vague and grant quite a bit of discretion to British officials to determine whether revocation would be conducive to the public good.
Pursuant to this authority, Britain has stripped the citizenship of a number of citizens who joined the Islamic State, including immediately before the individual was targeted and killed in a U.S. drone strike. The U.S. has not taken that route, nor could it given existing law. But the U.S. has not refrained from targeting current citizens in drone strikes, instead concluding that citizens may be killed by targeted drone strikes consistent with the Constitution and due process.
British law thus regards citizenship as less permanent but perhaps more important in terms of the rights it conveys. Presumably, Begum would have no difficulty returning to the U.K. if the government decided not to revoke her citizenship. But Muthana, apparently because of her actions in joining the Islamic State, faces a re-examination of her citizenship and a reversal of a previous State Department position that she is in fact a citizen. She may also face continued hurdles returning home even if she is determined to be a citizen.
Ultimately, the parallel situations of Muthada and Begum illustrate the sharply different approaches to citizenship—and its revocation—adopted by the United States and United Kingdom. And the discrepancy highlights an area of U.S. constitutional law that has historically been of utmost importance but has largely faded from the collective consciousness. Whatever the end result for these two young women who left their homes to join the Islamic State and currently find themselves unable to return, the issue is not likely to go away. The legal disputes and court challenges over Begum’s and Muthana’s respective statuses are only in the initial stages. Their resolution may set a precedent for the future disposition of similar cases and clarify important principles about citizenship. At the very least, Muthana’s case will hopefully establish that the determination of whether a person claiming to be a U.S. citizen may return home cannot be resolved by a cursory statement or tweet but requires careful examination of the relevant facts, pertinent laws and fundamental constitutional principles.