U.S. Birthright Citizenship, the Diplomatic Immunity Exception, and the New Jersey born, University of Alabama Student turned ISIS Recruit, Hoda Muthana

International media has spotlighted the controversial case of Hoda Muthana–a New Jersey born University of Alabama student turned ISIS recruit. Having become disenchanted with her adopted extremist ideology, and now being responsible for her 18-month-old infant, Ms. Muthana wants to return to her native U.S. home and face justice for her criminal acts.

The U.S. Department of State is demurring her request for a passport, passage, and prosecution, and is further insisting she was never a citizen of the United States at all. Her father has filed suit on her behalf citing that she was born in the United States, has been issued two passports by the United States, and has never had her citizenship previously questioned.

Noting that the Department of State is not arguing Ms. Muthana renounced her citizenship during her odyssey of terrorist accessory to Damascus, outside observers are understandably confused.

For reasonably archaic reasons explained below, this case could be decided on one question of fact: Did her father, Ahmed Ali Muthana, have diplomatic immunity in the United States at the time of her birth?

To answer this question I will define “birthright citizenship,” explain the Parental Diplomatic Immunity Exception, and conclude by applying the law as it exists today to the facts of this case.

Birthright Citizenship Defined

The United States is among few countries in the world that offers “birthright citizenship.” The origin of this right is Section 1 of the 14th Amendment of the U.S. Constitution, which in part declares: “All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The general rule, therefore, is if a person is born within the physical territory of the United States (including U.S. territories, and in many cases, overseas U.S. embassies, and U.S. military bases) that person is automatically a citizen of the Land of the Free.

If a suicide bomber births a baby en route to her high profile target at a D.C. children’s hospital, that baby enjoys an unequivocal right to U.S. citizenship, no matter how deplorable a parents’ behavior.

The Parental Diplomatic Immunity Exception to Birthright Citizenship

There are, though there is no reason any normal person would have ever heard of them, exceptions to birthright citizenship.

The exception relevant to this case: If the child is born physically in the United States, but is shielded by diplomatic immunity through the diplomatic status of a parent, the child is not “subject to the jurisdiction of the United States” and is therefore not entitled to birthright citizenship.

Therefore, if Ahmed Ali Muthana, a former Yemeni diplomat to the United Nations, enjoyed diplomatic immunity at the time of his daughter’s birth, the government’s argument goes, then Ms. Muthana has never been, and continues not to be, a U.S. citizen.     

Hoda Muthana was born after her father ceased to be a diplomat, but before the United States was notified that he was no longer a diplomat.

Ahmed Ali Muthana was a Yemini diplomat to the U.N., living in the United States (for International Law purposes, the country a diplomat lives in is called the “host country” and the country he represents is the “origin country.”)  As a Yemini diplomat, he was shielded from the jurisdiction of his host country (the United States) by the Vienna Convention on Diplomatic Relations (1961)–more casually referred to as “diplomatic immunity.” His term of office ended on September 1, 1994, more than a month before, his daughter, Hoda Muthana, was born on October 28, 1994. The U.S. Mission to the U.N. was notified that Mr. Muthana was no longer a diplomat on February 6, 1995–more than three months after his daughter was born.

The question of law is this: Does an outgoing diplomat lose jurisdictional immunity from a host country at the time the diplomat’s origin country (in this case Yemen) ceases to recognize his diplomatic status, or at the time the host country is given notice that he has ceased to be a diplomat?

There is a necessary prequal question to this that requires the reader to journey into the obscure abyss of transnational conflict of law: What if Yemen ceased to recognize Mr. Muthana as having diplomatic immunity on September 1, 1994, but the United States, for its own jurisdictional purposes, recognized it through February 6, 1995.?

U.S. courts, in determining jurisdiction at the time of Hoda Muthana’s birth, will apply the Law of the United States even if they conflict with the Law of Yemen.

Absent superseding language in the Vienna Convention or a relevant treaty to which both the U.S. and Yemen are signatories that postdates any contradictory U.S. federal statute, a U.S. court would use U.S. Law to determine the date of cessation of diplomatic immunity.

As the reader may guess, a court in Yemen may find it more convenient to rely on the Law of Yemen.

(Please note that, though beyond the scope of this Essay, there are frequent circumstances when U.S. courts will apply the laws of other jurisdictions to domestic proceedings.)

In determining U.S. Law, a court would look for guidance in the language of U.S. treaties and statutes. If a court finds relevant direction from both a treaty and a statute, U.S. Constitutional Law requires the court to apply the language of the treaty or statute that came into effect later in time. (Federal statutes and treaties are coequal in authority, so if one contradicts the other, the law created later governs as if it repealed the contradictory language of the other.)

U.S. law likely terminates diplomatic immunity at the time a diplomat leaves his official capacity as recognized by the origin country.

The Vienna Convention, relevant treaties and federal statutes, seem silent on the question of the effect of a delay of notice to a host country on a former diplomat’s diplomatic immunity. Absent authoritative caselaw, international custom, or a history of relevant behavior between the U.S. and other Vienna Convention signatories, courts will reluctantly consider public policy.

Public policy strongly supports the view that the U.S. retroactively terminates its recognition of diplomatic immunity at the time a diplomat leaves his official capacity as recognized by the origin country.  This is necessary to avoid the potential of the absurd result outlined below.

When discussing the subject of diplomatic immunity the question often arises: “What if a diplomat goes on a killing spree in the host country?”

Since diplomatic immunity is a right held by the origin country, and not a right held by the diplomat, the origin country can, and often does, waive the diplomatic immunity of a wayward agent abroad.  It cannot do this, however, if the unstable agent is not actually recognized by the origin country as having diplomatic status.

Let’s assume that Yemen stopped recognizing Mr. Muthana’s diplomatic immunity in September of 1994 but that the U.S. generously extended it’s recognition to February 6, 1995 when it received notice of his ceasing to be a diplomat several months prior.  With Yemen unable to waive a right it does not acknowledge exists, Mr. Muthana would, arguably, be unprosecutable for any bad behavior in the United States during the interval.

To avoid such an absurd result, the U.S. would need to recognize the date Mr. Muthana left his role as diplomat as the effective date of his loss of diplomatic immunity whenever the U.S. was served of actual notice that he was no longer recognized by Yemen as a diplomat.

Such is the policy that should be followed whether a recently-ex-diplomat kills a baby, or procreates a new one into existence on U.S. territory.

Since Hoda Muthana’s father did not have diplomatic immunity at the time of her birth, she was both born in the United States and subject to its jurisdiction making her a citizen with the right to return home and subject to U.S. prosecution.

This case is more straightforward than commentators and pundits argue. U.S. law likely requires the Department of State to recognize Ahmed Ali Muthana as loosing his diplomatic immunity on September 1, 1994–more than a month before his daughter was born in New Jersey–making both him and her subject to the jurisdiction of the United States at the time of her birth. The 14th Amendment of the U.S. Constitution therefore bestows upon her birthright citizenship which, absent a revocation of citizenship, survives her treasonous behavior.  She and her child are entitled to admission to the United States where she would be immediately taken into custody for her crimes.

Ironically, should it be determined that she is not a citizen of the United States, while she would effectively become a stateless individual, the U.S. would also be giving up jurisdiction to put her on trial for what would otherwise be her crimes against the United States.

Her practical alternatives are therefore these: Be imprisoned in the Land of the Free, or just be free.

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