What allegiance does the United States owe to our enemies when they are our own citizens?
More than we should.
The question arises due to the case of Hoda Muthana, a young woman born in Alabama, the daughter of Yemeni immigrant parents.
As too often happens, the impressionable young Muslim was drawn, in her teen years, into fundamentalist Islam. This ideology -- commonly called “radical Islam,” but more accurately labeled “sharia supremacism” -- teaches that Muslims have a duty to impose and spread Islamic law throughout the world. It fuels violent jihadism and other aggressive Islamist strategies, pressuring governments and societies to concede to fundamentalist Muslims the right to live autonomously -- i.e., to adhere to sharia whenever it conflicts with domestic law.
This is a profoundly dangerous concession. Sharia supremacism is anti-American and anti-Western. It systematically discriminates against women and non-Muslims; it rejects our notions of equality, freedom, and privacy. Basically, it is counter-constitutional.
The result in Muthana’s case was dire. She fled to Syria to join the Islamic State terrorist network -- the ISIS caliphate. And she was all in, calling for violent jihad against the West and the annihilation of the United States in ISIS recruiting messages on social media. “Spill all of their blood or rent a big truck n drive all over them. Kill them” -- that is what she called for her fellow radicals to do to her fellow Americans.
Though just 24 years old, Muthana is on her third marriage, her first two husbands having been ISIS militants killed fighting American and other armed forces. She has an 18-month-old son, born of her second marriage, to a jihadi killed in Mosul.
She was captured by Kurdish forces and is now living in a refugee camp in Syria. Naturally, she is expressing remorse and pleading that she be permitted to return with her son to her family in Alabama.
Clearly, she is not a sympathetic case. Nevertheless, she has a right as an American to be admitted back into the United States.
It is entirely reasonable to posit that, because she has committed treason, Muthana should be deemed to have renounced her American citizenship by making war on our country. But that is not the law.
A person who is an American citizen by birth may not have that citizenship revoked without her consent. In its 1973 Afroyim v. Rusk decision, the Supreme Court reasoned that the Constitution does not grant Congress the power to strip an American of citizenship because, in our system, the people are sovereign -- the government serves us, it is not the source of our citizenship.
I think this is ill-considered. Citizenship implies obligations of fealty as well as benefits. Traitorous acts should be construed as renouncing those obligations, and thus renouncing citizenship itself.
Moreover, there are situations in which the power of government to revoke citizenship is recognized. Granted, these involve naturalized citizens who procure citizenship by fraud. But a section of our immigration law permits revocation if a naturalized citizen joins a subversive organization within five years of becoming a citizen. The legalistic theory is that this is a form of fraud: You can’t have taken the oath of citizenship seriously if, so soon after being naturalized, you’ve joined such a group -- e.g., al Qaeda. But the more salient point, I believe, is that you have renounced the obligations of citizenship; it should not matter if you are a born or a naturalized American if you make war against America.
Alas, that is not how the law is interpreted. Muthana will be permitted re-entry into our country. She should be prosecuted for treason and terrorism offenses. Indeed, the Justice Department should indict her now, so that she has fair notice of what she faces if she chooses to return.
For purposes of our security, we should be thankful that this is a highly unusual situation. Not many Americans have been captured fighting for ISIS. A more pressing challenge than what happens in Syria is that we avoid the development of sharia-supremacist enclaves within our country. As we learn from the European experience, such enclaves can become cauldrons of radicalization.
Some people, like Hoda Muthana, will take that calling half way around the world; many more will practice jihadism at home.