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Ivor Prickett/The New York Tim​es/Redux

The Un-American

Hoda Muthana left the U.S. to join ISIS. Now she wants to return home to stand trial, but the Trump administration won’t let her. She is a test case for the future of birthright citizenship.

In late 2014, a young woman named Hoda Muthana slipped away from her Alabama home to travel to Syria as one more volunteer for the Islamic State. Over the ensuing years, her parents, Ahmed Ali and Sadiqa, experienced the rise and fall of the caliphate through their daughter’s WhatsApp messages, which morphed from semi-reassuring updates on her whereabouts to terrifying statements of ideological passion. She pleaded for her parents, who were from Yemen, to join her in Raqqa: “You and Mom have to come, we’ll all die here together and go straight to jannah,” to heaven. On Twitter, she posted for her international following under the name Umm Jihad—the Mother of Jihad—inciting her readers to drive vans into crowds, among other acts of war. American troops, she wrote, “cry for their lives while we cry for our death.”

For the first couple of years she was gone, Hoda appeared content with her chosen life, and strenuously resisted her father’s pleas to surrender to the United States. But throughout 2017 and 2018, ISIS was crumbling under the concurrent assaults of Kurds, Americans, Turks, Iranians, and Russians, and she started to realize she had made a terrible mistake. She lost two successive husbands in battles against the encroaching coalition. By the middle of 2018, as famine set in within the shrinking territory ISIS still controlled and civilians were reduced to eating fried grass, as if in some biblical siege, Hoda began to lose faith in the cause. She grew more afraid of dying in exile than facing trial back home, concerned not only for herself but also for her infant son, her child with a Tunisian ISIS recruit. Whatever happened to her, she told her father, she wanted the boy to have a life.

The trouble was that getting out was as dangerous as staying. Flight was punishable by death. Ahmed Ali feared she would fall into the hands of Syrians, Turks, or Russians—which meant, at absolute best, imprisonment by authorities who answered to nobody in particular and wouldn’t care that Hoda was an American citizen. To the south, Iraq had sentenced thousands to death—including European nationals—on even the vague suspicion of ISIS membership. So Ahmed Ali tried to get his daughter into American hands. Together with Charles Swift, a lawyer from the Constitutional Law Center for Muslims in America, he negotiated with the FBI to be prepared to receive her if she made it into allied territory. Meanwhile, he and Swift texted Hoda maps indicating the locations of approaching American and Kurdish forces.

During each of Hoda’s attempts to escape, she left her phone behind so as to avoid being caught with incriminating evidence. Twice she was apprehended; both times, she evaded punishment by convincing the guards she was looking for food. Finally Swift, a former Navy lawyer, texted her: “When the guard post disappears from the lines ... that means the opposition is close. They will start worrying about themselves and stop worrying about you.” Then, he told her, walk toward the sounds of cannons.

In late 2018, as Iraqi forces closed in on the village of Sousa, Hoda set off across the desert with her son. The Muthanas waited two nerve-wracking, helpless days, until Ahmed Ali’s phone buzzed with an unknown number: Hoda had been picked up by a unit of the independent Kurdish soldiers called peshmerga. Swift expected she would make a quick return home and get a plea bargain—an outcome that would put an end to the Muthana family’s limbo, if not to Hoda’s difficulties. The lawyer knew Hoda would face interrogation and prosecution when she returned to the United States, but he had no doubt that she would be able to return. He had spent more than 15 years defending people on the fringes of the war on terrorism. He was a counsel on the Supreme Court case that had successfully argued that the Bush administration’s military commissions for trying Guantánamo detainees were unconstitutional. He had won an acquittal for Noor Salman, the widow of Pulse nightclub shooter Omar Mateen.

Over the course of this work, he had negotiated the surrender to the FBI of a half-dozen ISIS recruits. Based on his experience in those cases, he assumed that the FBI would be eager to pick Hoda up. “They usually take about 20 minutes to respond to an offer of surrender,” he told me. Not this time. After she was apprehended, days stretched into weeks and then months, with no word from the agency. Hoda waited with her child in a tent in the Al-Hol detention camp in northeastern Syria, along with other Western women whose governments suddenly seemed to have no interest in them.

In early 2019, a group of Western journalists covering the caliphate’s final collapse found and interviewed her. “We had young people not knowing much about their religion—we interpreted everything very wrong,” Hoda told ABC News’ James Longman, her striking face framed by a hijab and accented by the eye shadow of bone-deep fatigue. “I can’t even believe I thought that, really.… I’m just a normal human being who has been manipulated once and hopefully never again.” She knew, she told the reporter, that she faced prison. “I hope America doesn’t think I’m a threat to them, and they can accept me.”

Whatever America thought, the day after ABC published the interview, President Trump tweeted his own decisive verdict. “I have instructed Secretary of State Mike Pompeo, and he fully agrees, not to allow Hoda Muthana back into the Country!” the president wrote. The reason, as Pompeo explained in a statement the same day, was that Hoda—despite having been born in Hackensack, New Jersey, and going off to Syria on a U.S. passport—was “not a U.S. citizen.”

Children play on swings at Camp Roj in northeastern Syria, where Hoda Muthana remains with other families of members of the Islamic State.
Ivor Prickett/The New York Times/Redux

Charles Swift saw the Trump administration’s statement as a dangerous power grab—a confluence of alarmism with the growing nativist, anti-immigrant sentiment of an administration that had already tried to ban Muslims from entering the United States and was separating families on the Mexican border. But at the same time, he greeted Trump’s tweet as an opportunity. For the past 15 years, as he had tried war on terrorism cases in American courts, Swift had seen himself as fighting a defensive action against the creeping lawlessness of the American military and surveillance state—a state that in the aftermath of the September 11 attacks had claimed ever-expanding frontiers of impunity.

From one perspective, the State Department’s move against Hoda was something bold and new: A U.S. president was flagrantly expanding the role of executive power, baldly asserting the right to personally decide, with no due process or hearing, that a woman born in the United States wasn’t an American citizen. And yet, if you look at what administrations do, as opposed to how they do it—or how they justify it—Trump could plausibly cite nearly two decades of federal precedent behind him. Indeed, in challenging Hoda Muthana’s claim of birthright citizenship, Trump was largely building on President Barack Obama’s legacy.

Obama had enabled the federal government to seize hitherto unimagined powers in the global war on terrorism. On the home front, the FBI—which previously had little to do with counterterrorism efforts—infiltrated mosques and chat rooms, set up fake terrorism plots, and arrested those ensnared in the schemes. In 2009, in “the largest terrorism financing case in American history,” a Dallas federal court sentenced the five heads of the Holy Land Foundation, an Islamic charity, to as many as 65 years apiece in federal prison for sending money to Hamas for schools and food—even though the government conceded that was precisely what Hamas had used the money for. Executive-branch drone operators killed, openly and at will, in wars spreading in concentric circles outward from Iraq. In 2011, a drone assault killed New Mexico-born imam Anwar al-Awlaki, a mellifluous preacher known for his articulate and increasingly violent online sermons, along with Samir Khan, the young American who reportedly published Inspire, the Al Qaeda magazine. Two weeks later, another CIA drone blew up al-Awlaki’s 16-year-old, Denver-born son.

The strike on al-Awlaki showed the American presidency, in a sense, at its dark apogee: Obama now asserted the power to kill individuals anywhere, at any time, with rockets from the sky. Anwar al-Awlaki’s death proved, Obama said, “that Al Qaeda and its affiliates will find no safe haven anywhere in the world.” But U.S. power proved curiously permeable. Even as Obama spoke, car bombs and insurgent strikes were ripping across northern Iraq: the work of the resurgent Islamic State of Iraq, revitalized under Abu Bakr al-Baghdadi with help of a cadre of ex-Iraqi military and intelligence people he had met while imprisoned by the United States. A couple of months before al-Awlaki’s death, al-Baghdadi was already sending experienced fighters into two new fronts where the American military colossus could not follow—into the growing chaos of Syria, and the new war for hearts and minds online.

As Swift began plotting out a defense strategy for Hoda, who was still trapped in Syria, he acknowledged that she was not an especially sympathetic plaintiff. Why not build a case around, say, the naturalized Haitians being deported after living for years in America? But “that’s what a journalist calls sympathetic,” he told me, “and where a lawyer says, ‘Who fucking cares?’ Most undocumented people are positive people in our society. But that’s not what the law measures.”

And there was a more fundamental point: If Hoda had the rights, despite what she had done, then who doesn’t? This was much the same logic that made the wholly unsympathetic Hustler publisher, Larry Flynt, the defendant in a key 1988 First Amendment case before the high court. And the precedent set by Hoda’s case could be especially important to curb the abuses of Trump, who has repeatedly spoken against birthright citizenship, and acted to use the legal innovations perfected against Muslims against Latinos, be they undocumented, naturalized, or—in the case of some delivered by midwives in Texas colonias—American-born. Unlike Obama, who would fold his cards if he was losing to avoid a bad precedent, Swift said, Trump “won’t back down.” Challenge Trump in Hoda’s case, he thought, and the administration would fight all the way to the Supreme Court.

Like other members of their prosperous, diverse Muslim community, the Muthanas had watched in horror as the Syrian civil war sent waves of refugees seeking haven to Europe. But throughout 2013 and 2014, they were more concerned with the way their daughter Hoda was disappearing into her phone. During her first year at the University of Alabama at Birmingham, Hoda lived with her parents and siblings, fighting her own kind of irregular conflict, which had now—like the one outside—gone on for years. The battle lines were simple: Hoda was an American girl in the suburban South whose parents wanted to raise her like a proper old-country Yemeni. When she was in high school, that had meant no parties, no overnight field trips, no boys. Deprived of any immediate prospect of an independent life before marriage, she watched her American friends prepare to attend out-of-state colleges she knew she would never get to go to.

“She wanted to ... but she couldn’t,” Ahmed Ali told me. The pain in his face at the word couldn’t was palpable. These restrictions were less Muslim than Yemeni, instinctive relics of Hoda’s parents’ own upbringing in a society where honor was paramount. She wouldn’t have run away, Swift agreed, if her parents “had given her an inch on the parties.”

As Hoda cast about for recognition beyond what her home had to offer, she poured her identity into Islam. She won prizes for Quranic recitation at their mosque, adopted the hijab, organized Muslim students at her high school for Friday prayer. Relieved, Ahmed Ali gave her a new iPhone as a graduation present. But soon, he said, she was showing up hollow-eyed at breakfast, and became unusually slow to help her mother or older sister with housework. At first, her parents were sure she had found a boyfriend. Yet Ahmed Ali’s search of her phone turned up only Quranic apps.

Then, in November 2014, less than six months after Abu Bakr al-Baghdadi declared ISIS’s global caliphate, Hoda asked to go on a field trip to Atlanta. Her mother told her no; even at 19, she wasn’t allowed to spend the night away from home. So Hoda turned to Ahmed Ali. If he wouldn’t let her go on the trip, she threatened, “Don’t ask me why if I fail in school.” He let her go. He did not know that for months Hoda had been secreting away the money he’d given her for the local university to use for her escape. By the next day, she was texting her parents from Turkey, on her way to Syria.

As he followed his daughter’s movements abroad via episodic exchanges over WhatsApp, Ahmed Ali tried to piece together how, day by day, under his nose, Hoda had slipped into the most militant reaches of the Islamist internet. He soon realized that he and Sadiqa had given their shut-in daughter unfiltered access to the internet during a boom time in online radicalism. As the FBI chased made-up plots in suburban mosques, forums on the dark web hummed with impassioned outbursts from young jihadis and fangirls of holy war. Like other congregations of the young, lost, and pissed-off—incels, white nationalists, the alt-right—these Western-raised Islamic militants-in-the-making were trying on a revolutionary identity out of range of the prying eyes of the state, or their elders.

On these forums, al-Awlaki’s killing—or, as Hoda and her new friends would have called it, his martyrdom—had been a technicality: An online eminence does not die. Obama had killed al-Awlaki to shut him up, but the late cleric still spoke from thousands of screens, his soft-spoken exhortations to violent revolt intercut with shock footage of ISIS stonings and beheadings.

Hoda’s Umm Jihad Twitter account, which she created in 2013, was a bold bid for attention, coinciding with her new ambition to be part of global Islamist revolt. The goal, for a certain kind of young person, was hijra—the journey to the front lines of the Syrian civil war, where young ISIS recruits were mustering. Drawn from comfortable Western lives into the online holy war, now they were outfitted with real weapons and facing off against real enemies in a life-and-death struggle for territory and power. It was only a matter of time before Hoda met one of the ISIS recruiters stalking the web forums of young Islamist radicals, who offered her a path to the first solo adventure of her entire life.

Trump’s tweet was not the first time Hoda’s citizenship had been challenged. In early 2016, Ahmed Ali received a letter from the Obama State Department informing him that his daughter was not and had never been a citizen. He assumed it was a mistake. For eight years, the Obama administration had pursued a set of hard-line immigration measures, from an unprecedented program of deportation of naturalized citizens (Operation Janus) to the unauthorized delay and deferment of naturalization applications submitted by South Asians, Muslims, and Middle Easterners (the infamous Controlled Application Review and Resolution Program, or CARRP). But none of these efforts, Ahmed Ali believed, were relevant to Hoda, because she had been born in America and traveled abroad on an American passport. He sent back proof of her birthplace and heard no more about it.

Hoda Muthana’s United States passport

The underlying logic of Trump’s claim that Hoda was not a citizen was essentially the same as the rationale in the 2016 letter. The evidence cited in the court case was extremely specific, resting on Ahmed Ali’s employment history. Until 1994, the year Hoda was born, Ahmed Ali had been among Yemen’s envoys to the U.N.; the standard trade-off that foreign workers like him made in exchange for diplomatic immunity was that their children weren’t eligible for birthright citizenship.

But before Hoda was born, as South Yemen disintegrated in war and forced union with the North, the new regime fired him—thereby restoring that right. Later, in court, the U.S. government argued it hadn’t found out about Ahmed Ali’s status until after Hoda’s birth. Therefore, the government found the prior agreement to still be in force—meaning Hoda was not, it argued, a citizen.

What’s more telling than the chronological particulars informing the Muthana prosecution was that in 2016, the State Department lawyers didn’t even bother to make this case. The letter to the Muthanas disputing their daughter’s claim to citizenship took for granted that it was simply the right of the executive branch to decide, without any hearing, due process, or trial, that a woman born in the United States, the recipient of two U.S. passports, wasn’t a U.S. citizen. For Swift, this maneuver was of a piece with his prior duels with the Obama administration over the rights of people accused of terrorism. It was evidence of an extraordinarily expansive power grab that, because it never declared itself as such, was almost impossible to fight in court. In both the Bush and Obama White Houses, Swift recalled, “the goal on the other side was ‘always avoid judicial review’”—i.e., to refrain from ever laying out the administration’s goals openly such that they could be challenged in court.

It’s unconstitutional to bar entry to U.S. citizens or to strip them of their citizenship based on conduct. Even a crime as blatantly treasonous as killing the president, noted David Cole, the national legal director of the American Civil Liberties Union, might make a citizen subject to the death penalty, but not loss of citizenship. But in Hoda’s case, Swift said, there was no way to prove the intention behind the State Department’s refusal to let her return. The government could insist that her citizenship status was an administrative matter easily cleared up if only she could get to the United States—on a passport that the State Department wouldn’t renew.

“So now she’s a presumptive alien,” Swift explained grimly. “She has no standing in U.S. court.” This sort of tactic, a banishment that never announces itself as such, was, he said, “a fundamental expansion of Guantánamo”—that is to say, the legal dead zone in which the U.S. president could exercise the broadest range of unilateral, unaccountable power. In Swift’s view, Trump wasn’t any more ambitious than Obama had been when it came to the extension of executive power—he was just far clumsier in how he went about it. Stephen Vladeck, a specialist in national security law at the University of Texas, agreed. Vladeck noted that Trump tended to kneecap his own lawyers by “tweeting first, and making them come up with justifications after.” In precedent-setting moves such as the 2017 Muslim ban, this was a major liability, since it amounted to executive endorsement of a plainly unconstitutional policy.

So when Trump tweeted that Hoda could not return—and when Pompeo followed up with a statement connecting her citizenship status to her identity as a “terrorist”—they shone a light directly through the fog of executive privilege. The long-concealed imperatives of executive impunity in the terror wars had burst into the open.

But Swift’s optimism about the opportunity offered by Hoda’s case met a stark obstacle in the judge presiding over it. In November 2019, Judge Reggie Walton ruled in favor of the State Department: Hoda was not a citizen. Walton did not question the department’s internal deliberations; he simply deferred to them—something no court had ever done in a case of revoking citizenship. The government had insisted that Ahmed Ali Muthana had no standing; that there was nothing to sue over; that in 2016 Hoda should have requested a hearing within 60 days of getting the letter disputing her citizenship.

This line of argument was dry and technical, but amicus filings indicate the larger stakes of the case. A brief from the right-wing Center for Constitutional Jurisprudence argued that birthright citizenship required not only birth in the United States, but also being “subject to its jurisdiction.” According to the CCJ, the Muthanas had been merely “temporary sojourners” when Hoda was born.

It’s not hard to divine just where an argument like this is headed in the Trump era. Indeed, Trump, in the wake of regulations last August that allowed the government to hold undocumented children and their families “indefinitely,” told a group of reporters that birthright citizenship was “frankly ridiculous,” and that his administration was seeking options to end it. (A federal judge later rejected the regulations.) At the end of February, the Department of Justice announced the creation of a section devoted expressly to revoking the naturalization of citizens it deems “fraudsters,” including “terrorists, war criminals, [and] sex offenders.”

Yet Swift has not given up. He had been most afraid, he told me, that the courts would refuse to let Ahmed Ali speak for his daughter, as State Department lawyers had requested, or deny that any judicial remedy was even possible. However, Walton had not questioned the proceedings on these grounds, leaving the way clear for an appeal. “It was always going to be a long road home for her,” Swift reminded me. “She’s going to have to survive while things play out here. If the government had lost, they would have appealed, too.”

Outside the court, behind the technical issues in the case, lurk more fundamental questions, not least about the war on terrorism. As James Risen, one of the journalists who broke the story of the National Security Agency’s massive, unchecked, congressionally approved surveillance program, put it in a conversation with me: “What was it for, and how will we know when it is done?” The odd thing about the xenophobic suspicions kicked up by the war on terrorism, Risen noted in The Intercept, was how far beyond radical Islam they have spread, particularly as mass killings migrate across America. In the wake of the mass shootings in Dayton and El Paso, some liberals have argued for a domestic version of the war on terrorism, modeled on the coalition against ISIS but aimed at white nationalists, like the members of “the Base” recently arrested by the FBI after plotting to start a race war at a gun rights rally in Richmond, Virginia. (In an odd synchrony, “the Base” is one common translation for “Al Qaeda.”)

The rationale for a state campaign against white nationalists, Risen wrote, was identical to that advanced after 9/11: “Get rid of a few regulations, a few laws, and everything will work out.” But as Risen observed, things haven’t worked out. Rather than decimating the Islamic threat in a shock-and-awe show of superior force, the U.S. war machine kicked up the regional blowback that led to ISIS’s rise.

For a prime case study in how a crackdown goes awry, consider Anwar al-Awlaki, who was originally famous for his attempts after 9/11 to build bridges between conservative Islam and American society—until, as detailed in Scott Shane’s meticulous 2015 book Objective Troy, he discovered the FBI was questioning the D.C. escort services he frequented. Fearing the agency’s attempt to make him an informant, Shane writes, al-Awlaki fled America, becoming ever more radical as the war on terrorism wore on and he was hounded from country to country. As he renounced the coexistence he had once preached, he recorded the sermons that would play, long after his incineration, to impressionable youths like Hoda.

Meanwhile, in the broader discourse around the terror wars, the U.S. government and much of the media treat any involvement with ISIS as a mark of Cain—a fatal sign that a recruit or sympathizer has not just broken with the American social compact but has surrendered the designation American altogether. In this simplified way of looking at things, a woman like Hoda, who might once have been seen as a camp follower or noncombatant, can be accused by Pompeo of inflicting “enormous risk” on Americans.

To ask where it ends is to ask the meaning of what she did, and to what extent it was anathema. At least a dozen acquaintances from my Orthodox Jewish neighborhood in Atlanta went off to fight in Middle Eastern wars in the mid-2000s—with the Israel Defense Forces. One, a former sniper who took part in two expeditions into Gaza, said Hoda Muthana “reminds me of myself, except her side lost.” The differences were obvious, the similarities poignant. Like her, he meant, we had been pulled less by violence itself than by a vision of a cleansing adventure, an escape from our parents, a place where outsiders could truly belong.

Now my friend was older, scarred, repenting what he had done. Unlike Hoda, however, he was allowed to question himself and his earlier battery of motivations—as have virtually all American troops and paramilitaries who have killed civilians, deliberately or accidentally, in Iraq and Afghanistan. Most soldiers throughout history, whatever army they served in, have been afforded the opportunity to experience regret and to seek full reintegration into civilian society. After World War II, even most Nazi troops were allowed to return to civilian life. During the Indian Wars, the great Comanche warrior Quanah Parker—a leader whose fighters had killed plenty of soldiers and civilians as he tried to slow their invasion of the High Plains—retired to a comfortable, peaceful dotage on an Oklahoma reservation. In retirement, he was even visited by the president of the republic he had once fought.

We come to the end of wars, in other words, by allowing wars to end. Meanwhile, less than a year after the loss of its territorial caliphate, ISIS has returned to its roots as a well-funded guerrilla army and prison gang. In that climate, Swift argued, defectors like Hoda—young, repentant, and digitally fluent—are unique propaganda assets. “The same people who inspired [Islamic youths] to pick up arms in IS’s international struggle,” he said, “might compel them to put them down.”

There is no real precedent for such a program, however. Even if Swift were to win in court, Hoda would still likely spend years in federal prison, and her child would be raised by the Muthanas. That’s the best-case scenario for the small family. If the Trump administration has its way, Hoda will remain in a detention camp, and her son will grow up stateless in a warming, darkening world—a frustrated kid with no prospects, raised by an embittered mother in a dead-end refugee camp. The boy will be one more seed in fertile soil, ready to be swept up in some whirlwind to come.