Hoda Muthana is not likely to inspire much sympathy in the US. Born in New Jersey in 1994, Hoda left her parents stateside in 2014 and willingly became an ISIS bride. She posted a slew of online statements condemning the United States and encouraging Muslims there to rise up in violence against civilians. In late 2018, she had a change of heart and fled ISIS territory with her son Adam, who was conceived and born during her time in ISIS. She managed to contact her father Ahmed in the US, who pleaded with federal prosecutors to let Hoda and Adam – his grandson – return to the United States, where Hoda would surrender to US authorities to face the music for her terrorist activities.
The State Department asserted that Hoda was not a citizen, despite that she was born in the United States and that the State Department had previously recognized her as a citizen by issuing her passports. Consequently, Adam also had no citizenship rights, as he would have if he had been born to an American citizen living abroad. As non-citizens, neither Hoda nor Adam had the right to return to the US; they remain in a Syrian detention camp with other former ISIS brides and their children. Ahmed sued to recover Hoda’s and Adam’s citizenship rights in federal court. Both the D.C. District and Circuit Courts ruled for the State Department, arguing that it had the discretion to terminate citizenship. Few American citizens will shed tears over an ISIS bride losing her citizenship. However, it should disturb all of us how easily – and how quickly – it happened.
“The Right to Have Rights” – A Lesson Learnt from 20th Century Despots
In the mid-20th century, historian Hannah Arendt published a renowned book, The Origins of Totalitarianism, chronicling the characteristics of two of the most oppressive regimes in modern history: Nazi Germany and Stalinist Russia. Both regimes regularly annulled their inhabitants’ citizenship status as a precursor to depriving them of other rights. Arendt described citizenship in a country as, “the right to have rights,” because without it, individuals belonged to no community on which they could rely to protect their rights at all.
This political philosophy influenced the Supreme Court under Chief Justice Earl Warren in the mid-20th century, resulting in seminal decisions which grounded the right to retain citizenship in the 14th Amendment of the US Constitution. Only if the citizen voluntarily expressed an intent to renounce their US citizenship could the US government cease to treat them as citizens. By law, there are very limited circumstances where the government can prove that the citizen voluntarily relinquished their citizenship (for example, if the citizen swore an oath of allegiance to another country). Unfortunately, the Warren Court’s protections were gradually watered down by subsequent courts’ rulings that allowed more and more instances where Congress and the President could revoke citizenship without the citizen’s assent.
The Lesson Forgotten – The US Makes Citizenship More Fragile in the 21st Century
There are three current mechanisms by which the government expatriates, that is, can take away citizenship. The first, where government proves that the citizen effectively renounces their own citizenship, is rare. The second is denaturalization, where the Justice Department removes citizenship of individuals who were not born citizens but applied to become citizens. The third method is through passport revocation. Passports have been recognized by law as effective proof of citizenship; they are used to register to vote, apply for certain jobs, and to get into the country. Passport revocation is as practically potent a tool to deny citizenship as denaturalization because it denies the citizen the right to return to the United States.
The Trump administration pursued the latter two methods vigorously. Trump even created a subdivision within the Justice Department dedicated to denaturalization, prosecuting hundreds of cases. However, Justice Department denaturalization cases, at least, allow the affected citizen a chance to defend their rights in court before their citizenship is stripped. The government bears the burden of proof, and must give notice before the denaturalization goes into effect. By contrast, the State Department may wield passport revocation or denial without judicial procedure, and when a hearing is held, the passport holder carries the burden of proof. Compounding the problem, data on how often passport revocation happens is lacking; State Departments (across presidential administrations) are not obligated to publish data revealing how often they employ the practice.
Hoda Muthana’s case thrust passport revocation and the right to return into the national spotlight, but she and Adam are far from the only Americans to suffer the consequences thereof. Examples of more loyal American citizens – such as Mark Esqueda, a Texas-born Iraq War veteran denied passports twice by Pompeo’s State Department – could convince a broad array legislators to take a second look at this practice.
Small but Consequential Changes
The Biden administration has pledged – and begun to undo – some of the more draconian anti-immigration efforts of the last administration. Biden’s February 2, 2021 executive order explicitly names denaturalization and passport revocation as extreme measures that Trump aggressively pursued and that the Biden presidency pledges to curb. Biden also pledged to dissolve Trump’s Denaturalization Section of the Justice Department.
However, such effective measures can be as easily undone by the next president, or by Biden himself. While there exists the political capital – with Democrats in control of both Congress and the Presidency – to make substantial legislative reforms, small but consequential changes to our laws regarding citizenship could make a more lasting difference in cases like Hoda Muthana’s or Mark Esqueda’s.
Congress must strip the State Department of its ability to revoke a passport without prosecuting a claim against the aggrieved citizen in court. This could easily be done by copying the relevant procedural requirements from denaturalization statutes. Forcing the State Department to litigate every case of passport revocation & bear the burden of proof before a judge would both deter the practice and buttress Fourteenth Amendment citizenship rights with the Due Process protections it deserves.
Justice Warren was convinced the right to retain citizenship was fundamental to American democracy, “This Government was born of its citizens, it maintains itself in a continuing relationship with them, and, in my judgment, it is without power to sever the relationship that gives rise to its existence.” If, indeed, American government is subservient to its citizens, and not the other way around, the power of government to strip citizenship should be much more difficult than it is today.