U.S.-born Hoda Muthana should be in an American prison for joining Islamic State, the caliphate that terrorized, murdered and raped innocent civilians. Instead, she and her 2-year-old son are stuck in a refugee camp in Syria — because the U.S. government, relying on a technicality, has stripped her of her passport and told her that she and her son are not citizens. A federal judge has just held that government had the authority to do so.
It's hard to feel sympathy for Muthana. But the judge's decisions, and the government's before that, set a terrible precedent for others whom the government might try to strip of their citizenship in the future. A person who reasonably believes she was born a citizen, and has been issued a passport on that understanding by the government, should be treated as a citizen unless she has lied to get that passport in the first place.
The backstory to the Muthana case starts with the fact that various European governments have been dealing with people who joined Islamic State by actively stripping them of their citizenship to stop them from coming home. Ordinarily, the U.S. government can't do that. U.S. law doesn't have provisions for taking away citizenship once it is conferred, except if it was obtained by fraud.
But in apparent imitation of those European states, the Obama administration in 2016 decided to take away Muthana's citizenship. She had a high public profile after BuzzFeed publicized her Twitter efforts to recruit for Islamic State.
The way the Obama administration did it was to insist that Muthana had never been a citizen at all. She was born in the U.S., which is usually a guarantee of citizenship under the Constitution, but her father was a Yemeni diplomat at the United Nations. And under prevailing U.S. law, children of active diplomats don't become citizens even when born in the U.S.
Here's where things get complicated. When Muthana was born, her father was no longer serving his diplomatic mission, but he hadn't officially informed the U.S. government that he was no longer a diplomat. According to treaty-based rules, a diplomatic mission doesn't end until the host government is told about it. So technically, the government maintained, Hoda didn't become a citizen by birth.
Yet the Muthana family didn't know those technical rules, it would appear. Hoda seems to have believed herself to be a citizen her whole life. When her father became a U.S. citizen, he sought to naturalize his older children, recognizing that they weren't citizens. He didn't do that for Hoda, presumably because the family thought she was already a citizen by birth. Importantly, the U.S. government seemed to agree, issuing her the passport on which she traveled to join Islamic State.
The federal judge considering the case ruled that he had to accept the U.S. government's decision. That ruling is highly unfortunate. It fails to take account of the fact that Muthana genuinely and reasonably believed herself to be a citizen — and that the government effectively agreed by giving her a passport. In other words, she relied on her citizenship her whole life. If the government hadn't been angry at her for joining Islamic State, she'd be considered a citizen still.
You can lose naturalized citizenship if your citizenship application was false. But Muthana never applied to be naturalized. She never appears to have knowingly lied to get her citizenship; all along, she's thought she was a natural-born citizen. That might have given the judge the tiny bit of legal leeway to find that her citizenship could not so easily be stripped.
Of course, part of a judge's job is to adhere to technical rules. But the law should recognize a legitimate reliance interest on U.S. citizenship for someone who doesn't know every last technicality, and then travels outside the U.S. on a passport issued based on the theory that she is a citizen.
Muthana is extremely unappealing as a claimant for citizenship. President Donald Trump has tweeted that she will be kept out of the country; it was the Obama administration that first canceled her passport. What's more, she doesn't seem to have paid any attention to the cancellation until the caliphate collapsed and she wanted to come home.
Yet there's an old legal maxim that says hard cases make bad law. The fact that Muthana is morally culpable shouldn't distract us from the concern that her case will set a precedent. The next time a U.S. citizen abroad offends public sentiment, you can expect the government to start looking for ways to pull his or her citizenship. That prospect is worrying to say the least.
And there's her child to consider. If Hoda isn't a citizen, neither is the toddler. And he, unlike his mother, is genuinely an innocent bystander in this train wreck of case.
The blame here ultimately lies with the Obama administration, not the judge, who is trying to do his job and apply the law. But sometimes we need judges to step up and find legal means to do the right thing. This is one of those situations — not for Muthana, but for the rest of us.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.