Is the Trump Administration Trying to Rewrite Citizenship Laws?

With the self-proclaimed Islamic State on the verge of losing its last area of control in Syria, nations around the world are debating what do with the men and women who joined ISIS but now want to return home. Here in the United States, the debate centers on a 24-year-old U.S.-born woman who left her family in Alabama in 2014 and moved to Syria, where she lived in the ISIS-controlled caliphate. While in Syria, Hoda Muthana married a series of ISIS fighters, all of whom died in battle. Now she is living in a refugee camp in Syria with her 18-month-old son but is seeking to return to the United States, setting off a constitutional debate. Last week, President Trump tweeted, “I have instructed Secretary of State Mike Pompeo, and he fully agrees, not to allow Hoda Muthana back into the Country!” The Trump administration is claiming Muthana is not a U.S. citizen, even though she was born in the United States and has been issued U.S. passports. We speak to her family’s attorney, Charlie Swift, the director of the Constitutional Law Center for Muslims in America.

TRANSCRIPT

AMY GOODMAN: With the self-proclaimed Islamic State on the verge of losing its last area of control in Syria, nations around the world are debating what do with the men and women who joined ISIS but now want to return home. Here in the United States, the debate centers on a 24-year-old U.S.-born woman who left her family in Alabama in 2014 and moved to Syria, where she lived in the ISIS-controlled caliphate. While in Syria, Hoda Muthana married a series of ISIS fighters, all of whom died in battle. Now she’s living in a refugee camp in Syria with her 18-month-old son. Last week, she spoke to ABC about how she first came to be a supporter of ISIS.

HODA MUTHANA: When I was 17, I had an account on Twitter. And we were all just normal Muslims speaking together, and like we were just learning off of each other, feeding off of each other. We heard the caliphate was announced, and then we interpreted ourselves that it was obligatory upon us to go.

AMY GOODMAN: Hoda Muthana is now seeking to return to the United States with her son, but it’s set off a debate that has gone all the way to the White House. Last week, President Trump tweeted, quote, “I have instructed Secretary of State Mike Pompeo, and he fully agrees, not to allow Hoda Muthana back into the Country!” The Trump administration is claiming Muthana is not a U.S. citizen, even though she was born in the United States, has been issued U.S. passports. This is Secretary of State Mike Pompeo speaking on Fox Business.

SECRETARY OF STATE MIKE POMPEO: This is a woman who inflicted enormous risk on American soldiers, on American citizens. She’s a terrorist. She’s not coming back. President Trump made clear that she wasn’t coming back. She’s not a U.S. citizen. She is not entitled to U.S. citizenship. And she’s not coming back to our country to pose a threat.

AMY GOODMAN: The dispute over Hoda Muthana’s citizenship centers on her father, who was a Yemeni diplomat based in the United states, and whether he still had diplomatic status in the U.S. at the time of her birth in October of 1994. According to the Constitution, everyone born in the U.S. is granted citizenship with the exception of children of diplomats, as they don’t fall under U.S. jurisdiction. Muthana’s attorneys insist she does hold U.S. citizenship. She was born in Hackensack, New Jersey, October 28th, 1994, after her father had relinquished his diplomatic status more than a month before. The United States issued her a passport in 2005, renewed it in 2014. But in 2016, the Obama administration sent her a letter saying her passport was no longer valid. On Thursday, Muthana’s family filed a lawsuit against the Trump administration to allow her and her son to come back to the U.S.

To find out more about the implications of Hoda’s case, we go to Dallas, Texas, to speak with Charlie Swift, the director of the Constitutional Law Center for Muslims in America, an attorney for Hoda Muthana’s father. Swift is a retired Navy officer who retired in 2007 as a lieutenant commander in the JAG Corps — that’s the Judge Advocate General’s Corps. He is best known for winning the U.S. Supreme Court case Hamdan v. Rumsfeld for his client, Guantánamo prisoner Salim Ahmed Hamdan.

Charlie Swift, welcome to Democracy Now! Explain the case of Hoda Muthana. Is she a U.S. citizen?

CHARLES SWIFT: Well, first, thank you for having me.

And second, yes, she is. You’ve hit on the pertinent facts. The 14th Amendment gives anyone born in the United States or naturalized, who are subject to jurisdiction of the courts, citizenship. Now, “subject to jurisdiction” was a phrase that was used for diplomats. In other words, diplomats, who have diplomatic immunity, are not subject to the jurisdiction of U.S. courts. However, Hoda Muthana’s father was discharged from that position. And diplomatic immunity isn’t personal. It follows the — it is part of the position you hold. If you’re a diplomat in a foreign country, you have it by virtue of the position that you hold having been recognized by that country, or in this country by the United States.

In Hoda Muthana’s case, Ali Muthana, her father, had been discharged on 1 September. And she wasn’t born until the 23rd of October. And I want you to think about it this way, if you have any question. Let’s say instead of Hoda Muthana being born on October 23rd, Ali Muthana had walked into a convenience store, held it up and shot the clerk — something he’d never do; he’s an incredibly law-abiding citizen. But for purposes of this, let’s use that hypothetical. Now, let’s seriously consider. He’s out of his position. He’s been discharged for more — almost 53 days. Are we going to say he has diplomatic immunity? Not a chance. It’s not a close question. The courts have looked at this. He’d have a reasonable period of time to leave the country, but if he had — which is generally defined as 30 days, but he hadn’t left the country, didn’t have any intent to leave the country. He’s now subject to the jurisdiction of the courts, and therefore his daughter, his family, is subject to jurisdiction of the courts, and she is a citizen.

And everybody thought she was a citizen. She was issued not one, but two passports. The State Department recognized that he had been — that Ali Muthana had been discharged. It wasn’t until after she made an incredibly bad decision, one that her family has urged her against from the beginning — they didn’t know she was leaving, but they have cooperated with authorities to try and get her back since she left — that this even came up. So, if you look at the facts, you look at the text of the Constitution, what you have here is simply ignoring the Constitution, ignoring the steps on it.

AMY GOODMAN: And what are the implications of this? How could this expand? Explain what could happen in other cases if someone’s outside the country. Does this mean, at this point, since they’ve pulled her passport, she cannot return to the United States?

CHARLES SWIFT: It does mean that. She doesn’t have the ability to travel. So, one of the reasons we’re going to court is to get the — is to seek the court to aid her in her return. The Supreme Court said that any U.S. citizen has the right to re-enter. That’s an absolute. And citizenship can only be lost under very limited circumstances, and it’s always a judicial matter. It can’t be done by the executive simply saying, “You’re not a citizen anymore.”

And the implications are tremendous. First part, if you’re comfortable with what’s happened to her, imagine another U.S. citizen is outside the country saying and doing things that the United States doesn’t like, so they to say, “You know what? We don’t believe her birth certificate, or his birth certificate. We question it. We’re sending you a letter saying I don’t think your birth certificate was valid, you’re revoked, you can’t come back. And by the way, you can’t come to a court here because your passport has been revoked. You can’t come back into the United States. We’ve closed the door.” The implications are significant. And in fact, we’ve been hearing at the center about these very same letters being used for persons who were born in the United States to midwives, but we’re now revoking their citizenship by letter.

AMY GOODMAN: I want to go back to Hoda Muthana speaking to ABC’s James Longman earlier this month.

JAMES LONGMAN: Do you feel shame when you hear that back?

HODA MUTHANA: Very much, yeah.

JAMES LONGMAN: What you think would be a kind of a normal thing —

HODA MUTHANA: Maybe therapy lessons. Maybe a process that will ensure us that we’ll never do this again. Jail time? I don’t know if that has an effect on people.

JAMES LONGMAN: I don’t know if you’ve quite grasped how awful ISIS was to the communities, the Yazidi women that were enslaved, the men and women who were accused of being homosexual who were pushed off buildings. Do you feel regret and sorrow and remorse for being part of an organization like ISIS?

HODA MUTHANA: Definitely. It’s not Islamic at all. I believe that 100 percent.

AMY GOODMAN: So that’s Hoda Muthana speaking on ABC.

CHARLES SWIFT: Yes.

AMY GOODMAN: Charles Swift, talk about her story. Talk about why Hoda left this country, about her wanting to join ISIS, going to Syria, marrying three different ISIS fighters, as they died, having this son. Why did she join ISIS?

CHARLES SWIFT: You know, I don’t have an answer to that. Her parents don’t have an answer to that, in the process in it. For me, the issues here are constitutional — the revocation of citizenship, which the Supreme Court has said is never a valid punishment. So I look at that part.

I think it’s noteworthy, though. Hoda Muthana may hope that she doesn’t get punished or get jail time. I’ve been a criminal defense attorney for most of my life, as well as working on civil rights, and all of my clients hope they won’t go to jail. I would say, though, that one of the things that she’s doing by pursuing to come back here is making herself eligible to go to jail. She puts herself in — by filing the suit, the defense to her actions — the best defense on going over is that she wasn’t a U.S. citizen. Almost all the statutes under which — I think all of the statutes under which she could be charged all require, for extraterritoriality, that the crime either originate in the United States or that she be a U.S. citizen. And since the crime didn’t occur ’til she got over there, and if she’s not a U.S. citizen, there would be no jurisdiction to try her for the criminal offenses. By establishing her citizenship, she actually makes herself eligible for trial and punishment, something — you know, her parents are fully aware of that. Her father is fully aware of it. And he thinks that she should face justice. And if she’s convicted of something, she should serve the time for it. But he also believes that his grandson and she are still citizens and should be able to return.

AMY GOODMAN: I wanted to read one of her inflammatory tweets, when she was in Syria. She wrote, “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 drive-bys and spill all of their blood, or rent a big truck and drive all over them. Veterans, Patriot, Memorial etc Day … Kill them.”

CHARLES SWIFT: Yep. And a question is whether that’s criminal or not. But my concern is if you strip your citizenship for it. See, there’s a very strong idea, this is — that plays in over time, that if you’re disloyal to the country, then you should lose your citizenship. That’s how the British approach it. It’s not how the United States approaches it, because we’ve had this absolute belief in free speech. Speech can become criminal. You can be punished for it. But we’ve never stripped citizenship.

So, I’d like to change that a little. What if the administration later on says that anyone who does not support the current administration is creating treason, that their speech is hurting America, and we’re going to strip you of citizenship for it? The 14th Amendment is absolute. If you’re going to strip somebody based on their words, where’s your line, Amy? Where’s your line?

AMY GOODMAN: Well, let’s turn —

CHARLES SWIFT: See, this issues here — this is the problem. The issues are always bigger than the person. The issues weren’t Miranda’s guilt. The issues here are the constitutional — our constitutional foundations. And how we treat Hoda Muthana says a great deal about who we are as a nation. We don’t strip citizenship. No one, at least in her family and whatnot, is saying it doesn’t deserve criminal prosecution. And I think we’re conflating the two, as somehow she comes back and doesn’t get prosecuted. She may hope that she’s not prosecuted. Again, I have yet to meet a criminal defendant who was extraordinarily excited about that prospect. But in choosing to return, she chooses prosecution.

AMY GOODMAN: Well, I’d like to turn to Hoda Muthana again, responding to Mike Pompeo’s claim that she’s not a U.S. citizen. She was interviewed in Syria by NBC’s Richard Engel.

HODA MUTHANA: I read the papers, and I know, in fact, that I was a citizen. And when I tried filing for a passport, it was very easy. It came in 10 days. So, I thought I didn’t have a problem. And I’m sure there’s no problem. And I know my lawyer, hopefully, is working on it, and he will win the case.

RICHARD ENGEL: Do you think you’ll be able to go back to the United States? Do you want to go to the United States?

HODA MUTHANA: I’d prefer America other than anywhere else, yeah.

RICHARD ENGEL: And what do you — what do you want to do, if you went back to the States? What do you think will happen to you, if you were allowed to go back?

HODA MUTHANA: Of course, I’ll be given jail time.

AMY GOODMAN: So that’s Hoda Muthana, who is saying she does expect she would be given jail time.

CHARLES SWIFT: Yeah, yeah. I would think it’s very important to separate hopes and expectations in this process, Amy, is that — you know, as I said, everybody hopes that they’re not going to go to jail for very long. Her expectation is that she will go to jail. And the reason, among all things, both the family and for Hoda, is the 18-month-old son, who is a U.S. citizen by virtue of birth to her. Hoda has used the words, to her family, that she has ruined her life, she doesn’t want to ruin his.

AMY GOODMAN: Shamima Begum is in a similar situation. Her citizenship was revoked by the U.K. She fled to Syria from London when she was 15. Your response to the two?

CHARLES SWIFT: Well, she’s in a similar situation until we get to what country she’s from — the British and the Americans. Now, I’m very, very — I like the British, but I’m very proud to be an American. And at the time of our founding and afterwards, we put in place a Constitution because of the very types of abuses that we thought were wrong in Britain. Britain threw around the word “treason” too easily. It stripped citizenship. It banished people. That’s what it did. That was part of its government’s system. The Founding Fathers of the United States were having none of that. We set up a constitutional republic under the Constitution. We don’t swear allegiance to a queen. We swear allegiance to the Constitution of the United States of America. And the Constitution here is clear. The Constitution is not for bright, sunny days. It’s for rainy ones. It’s for the unpopular. The popular don’t need it.

AMY GOODMAN: Well, Charlie Swift, we want to thank you for being with us, the attorney for Hoda Muthana’s family. He is the director of the Constitutional Law Center for Muslims in America.

CHARLES SWIFT: Thank you.

AMY GOODMAN: He happens to be speaking to us today from Dallas, Texas. This is Democracy Now! When we come back, Life and Death in Rikers Island. We look at the — well, the story of thousands of people who die in American jails every year. Stay with us.