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Should Courts Be Back-Stopping Political Citizenship-Stripping Decisions? Not Without Accounting for the Problem of Statelessness

[Alexander Talel is an American attorney. He previously served as law clerk to Judge Jon O. Newman of the U.S. Court of Appeals for the Second Circuit and to Judge Sidney H. Stein of the U.S. District Court for the Southern District of New York.]

Hoda Muthana of Hackensack, New Jersey joined ISIS when she was 19. She wants to come home now. The problem for her is that a U.S. federal court in 2021 upheld the U.S. State Department’s determination that Muthana is not and has never been a U.S. citizen. But having taken the case and thus delved into executive branch policy determinations, the court could at least have addressed relevant existing precedent—that U.S. federal courts since World War II have routinely denied individuals like Muthana access to the citizenship-based legal process she now seemingly wants. Muthana’s case is different from that of Shamima Begum, a former British citizen who joined ISIS at age 15, but the outcome is the same—in February, a U.K court upheld the Home Secretary’s statutorily-based decision to strip Begum of her citizenship despite finding that her presence in Syria was likely the function of trafficking. These rulings are troubling, particularly insofar as they render Muthana and Begum effectively stateless, in contravention of myriad principles of international law and, specifically, Article 15 of the Universal Declaration of Human Rights.

The problem of statelessness is elemental—without citizenship, the individual’s access to the most basic rights diminishes drastically. These rulings therefore beg the question of how far judiciaries should go when considering whether to rubber-stamp the inherently political executive branch decision to effectively strip individuals of citizenship.

Muthana’s Case: Neither the First nor the Worst of its Kind

The State Department initially raised some concerns with respect to Muthana’s U.S. citizenship in light of the status of Muthana’s father as a U.N. diplomat at the time of her birth (children born in the U.S. to U.S.-based foreign diplomats, whose status entitles them to immunity from U.S. law, are not typically entitled to birthright citizenship). But the government obviously determined those concerns resolved in 2005 when it issued Muthana a passport, which it renewed in 2014. And Muthana was never naturalized. But after Muthana joined ISIS in Syria in 2014, the government’s position changed—the Obama Administration revoked Muthana’s passport on the basis that she was not a birthright citizen because termination of her father’s diplomatic status had not been made official before her birth (had Muthana been born after termination of her faither’s diplomatic status, he would have been subject to U.S. jurisdiction and she would thus undoubtedly have been entitled to birthright citizenship). The Trump Administration adopted this same position, arguing that Muthana had never been a U.S. citizen. Muthana’s father sued on her behalf and, in January of 2021, the D.C. Circuit Court of Appeals upheld the government’s position.

But Mr. Muthana’s appeal also presented an equitable argument: that if he had known that the State Department was issuing his daughter a passport but nevertheless also taking the position that she was not a U.S. citizen, then he would have pursued naturalization on her behalf as he did for his two other children. In response, the Court said this: “Although Muthana may have had a good faith understanding that his daughter acquired citizenship at birth, an error initially shared by the State Department, the law affords Muthana no relief. As we have explained, Hoda has never been a U.S. citizen and therefore the State Department revoked her passport, but could not strip her of a citizenship she never lawfully enjoyed.” But Muthana did enjoy all the benefits of U.S. citizenship up until the moment her passport was revoked. It is difficult to understand how revocation of those rights and benefits is not tantamount to revocation of their source—namely, citizenship itself.

The court thus ruled in a manner that presented but failed to resolve a delicate and politically-charged jurisprudential quandary. And it did so while also failing to address that Muthana is not the first U.S.-born individual to join a foreign enemy and nevertheless claim that citizenship entitles her to civilian legal process. She is now, however, the first such individual that U.S. courts have ex post facto declared stateless.

Ex Parte Quirin dealt with a group of Nazi-affiliated submariners apprehended after docking on Long Island but before proceeding with a plan to detonate explosive devices throughout the country. The case now famously stands for the proposition that such individuals may properly be tried before military tribunals. But the Supreme Court’s Quirin opinion also addressed the question of citizenship because among these unlawful combatants was a naturalized U.S. citizen, Hans Haupt. The Court found that because he had passed “behind [U.S. military and naval lines] in civilian dress and with hostile purpose,” Haupt’s claim to citizenship did not entitle him to civilian legal process. Haupt, a U.S. citizen, was ultimately executed after trial by military tribunal.

The Supreme Court thus came nowhere close to declaring Haupt stateless, though it did signal that civilian due process protections guaranteed by the Fifth and Sixth Amendments do not necessarily apply where the citizen concedes alliance with a foreign enemy. Shortly after Haupt’s execution, the Ninth Circuit Court of Appeals seemed to confirm the Supreme Court’s view on the matter in the far lesser-known case of In re Territo, in which the court upheld the government’s position that a captured Italian soldier, born in West Virginia but designated a POW, was not entitled to the civilian legal process by virtue of his birthright citizenship, finding that “a citizen of the United States, domiciled in the enemy country…is deemed as much an alien enemy as a person actually born under the allegiance…of the hostile nation.”

Just as in Haupt’s case, the court in Territo did not suggest that Territo’s misdeeds rendered him stateless, just that he had admitted to betraying his state and, thus, was not entitled to the civilian legal protections to which his citizenship would otherwise have entitled him. Is a different outcome possible where a U.S. citizen is accused of allying with an enemy force but denies it? Apparently not.

Yaser Esam Hamdi was born in Louisiana in 1980, but taken by his father to Saudi Arabia in 1982. After being captured in an active combat zone in Afghanistan in 2001, Hamdi was detained at Guantanamo Bay. Hamdi asserted his U.S. citizenship and also claimed that he had never taken up arms in a manner hostile to U.S. interests, whereas Territo and Haupt had merely asserted citizenship as a means of mitigating the prosecutorial implications of an enemy affiliation that they willingly admitted. But even in Hamdi’s case, the Supreme Court found in a plurality opinion that his sworn denial of enemy affiliation did not entitle Hamdi to all the legal rights of citizenship, including the basic right to have his habeas corpus petition heard, and merely preserved his “right to further process”—a quasi-judicial hearing in which hearsay evidence would be admissible to prove his affiliation with al-Qaeda. To be sure, the plurality opinion did at least take the view that Hamdi was entitled to a circumscribed legal process because of his citizenship—far from a declaration of statelessness.

After Hamdi’s case, it seems clear that even full-fledged U.S. citizenship does not entitle an individual to the full protection of civilian law even where the citizen denies that he or she has engaged in conduct similar to that in which Muthana has. And Muthana, like Haupt and Territo, has never denied that she allied with a foreign enemy. All this is to say that various U.S. trial and appellate courts, faced with individuals like Muthana, have not subscribed to the notion that citizenship alone entitles one to critical legal protections, particularly access to the civilian criminal process that Muthana seems to want.

It is worth noting that the central issue in QuirinTerrito and Hamdi was the scope of the executive authority to detain, but those precedents do not suggest that their treatment of citizenship was intended to apply only in the detention context. Having taken Muthana’s case, the D.C. Circuit could at least have addressed those precedents and perhaps even worked to apply them, as opposed to diving headfirst and eyes closed into the politics of effectively stripping her citizenship and thereby rendering her stateless.


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