US judge declines to fast-track lawsuit brought by Alabama woman who joined ISIS
By SPENCER S. HSU AND CAROL MORELLO | The Washington Post | Published: March 4, 2019
A federal judge Monday declined to fast-track a lawsuit brought by the family of an American-born woman from Alabama who alleges the Trump administration unlawfully denied her return to the country after she joined the Islamic State in Syria.
U.S. District Judge Reggie Walton of Washington rejected an emergency motion to recognize the U.S. citizenship claim of Hoda Muthana, saying her family's attorneys had not proved she would be "irreparably harmed" by remaining in a refugee camp with her 18-month-old son while litigation continued at a normal pace.
Muthana's father brought the case, and Walton indicated he would rule on her citizenship claim in litigation that lawyers said could be completed by summer.
Muthana, now 24, left her life as a University of Alabama student to go to Syria in 2014. She eventually married three Islamic State fighters in the country, having a child with her second husband, who was killed in battle. In December, she escaped from the dwindling territory held by the militant group and surrendered to Kurdish forces.
"Today we're disappointed but understand the judge's ruling . . . focusing on whether there's immediate harm," lead Muthana attorney Charles D. Swift of the Constitutional Law Center for Muslims in America said after the 90-minute hearing Monday.
"In the meantime, we're also very encouraged. The judge's comments certainly foreshadow the ultimate outcome of this case in our viewpoint . . . the fact that Hoda Muthana is a United States citizen," Swift said.
The case of the "ISIS bride" centers on a determination on when Muthana's father, Ahmed Ali Muthana, stopped being classified as a diplomat accredited to the Yemeni mission to the United Nations in New York.
Ahmed Ali Muthana said Yemen terminated his diplomatic posting before her birth but did not notify the U.S. government of that fact until after she was born in the U.S.
Justice Department attorneys argued "Muthana is not and has never been a U.S. citizen, and her son likewise is not a U.S. citizen. Settled law applied to the relevant events clearly demonstrates that Plaintiff enjoyed diplomatic-agent-level-immunity until February 6, 1995 - after Muthana's birth," wrote Joseph Carilli, a Justice Department immigration litigation trial attorney.
While she was living in the self-declared caliphate in Syria, Hoda Muthana helped spread Islamic State propaganda on social media and called for the death of Americans.
"This is a woman who went online and tried to kill young men and women of the United States of America," U.S. Secretary of State Mike Pompeo said in a radio interview in Kansas on Monday. "She advocated for jihad, for people to drive vans across streets here in the United States and kill Americans. She's not a U.S. citizen. She has no claim of U.S. citizenship. In fact, she's a terrorist, and we shouldn't bring back foreign terrorists to the United States of America."
In an interview last month with the Guardian newspaper, Muthana described herself as having been "brainwashed." She said she regrets her decision and wants to return home so her son can grow up as an American citizen.
"I look back now, and I think I was very arrogant," she said. "Now I'm worried about my son's future."
Her case presented the administration with a dilemma. Hundreds of former Islamic State militants are being held in Syria by Kurds who now feel abandoned by President Trump's decision to withdraw most U.S. troops from the country. The possibility of radicalized Islamist militants being set free has led Pompeo to publicly urge other countries to repatriate their own citizens.
But Trump tweeted last month that he ordered Pompeo not to allow Muthana back into the country. The State Department has revoked the U.S. passport she possessed based on her birth certificate showing she was born in Hackensack, New Jersey.
Hassan Shibly, a Tampa attorney who also represents the Muthana family, has accused the Trump administration of trying to "wrongfully strip citizens of their citizenship."
Shibly has released a 2004 document from the U.S. mission to the United Nations saying Muthana's father stopped being a diplomat on Sept. 1, 1994, two months before his daughter was born. It is unclear when his diplomatic visa was changed.
Swift after Monday's hearing called the government's position that a former diplomat retains the status until the U.S. is told of the change is "incredibly shortsighted," arguing it could give other countries "license to smuggle spies or others into the United States" under diplomatic cover, terminate their position to disclaim responsibility, yet not notify the U.S. government and allow the individuals to assert immunity from any illegal conduct they might commit.
"That is insane. That is really opening us up to danger," Swift said, noting that Walton suggested the government was "grasping at straws."
Swift said he did not sign up to defend Muthana's conduct, or to argue if she was a sympathetic character, but to defend her rights as a citizen, which he said are not forfeited based on a political viewpoint, "incredible unpopular statements" or other conduct.
"The loss of citizenship is not a punishment," Swift said, saying Americans should "think long and hard" about setting a precedent allowing the government to bar citizens from returning to the United States by asserting their dangerousness.
However, Walton at the hearing said he was not reaching a decision on the merits of Muthana's citizenship claim yet, because her father had not established that she faced an immediate threat.
Swift claimed that because Muthana in news accounts has denounced ISIS and sought to return to the United States, she was viewed by ISIS supporters in one refugee camp as "a heretic, she now is not a Muslim and should be executed and killed, so she faces significant danger from them." Swift said Muthana as a result was moved to another camp for her safety.
Her lawyers also claimed urgency by arguing that if the United States pulls out of Syria , Kurdish forces holding Muthana would be less likely to cooperate and aid her in making a return. Walton called Muthana's arguments speculative and that he could not rely on media accounts absent other evidence.He said if any emerged, Muthana could bring it to his attention later.
Attorneys for the U.S. government said Muthana should be denied emergency treatment because she created her situation by deciding to leave the United States in 2014, join a foreign terrorist organization and did not challenge a January 2016 determination that she is not an American citizen until now.
"Muthana would have understood this unchallenged determination that she was not a U.S. citizen when she gave birth to her son abroad, and his circumstance is like that of any child born abroad to a non-citizen," Carilli wrote. "To the extent that there are any plausible exigencies, they are of Muthana's own creation."