Should Courts Be Back-Stopping Political Citizenship-Stripping Decisions? Not Without Accounting for the Problem of Statelessness

[Alexander Talel is an American attorney. He previously served as law clerk to Judge Jon O. Newman of the U.S. Court of Appeals for the Second Circuit and to Judge Sidney H. Stein of the U.S. District Court for the Southern District of New York.]

Hoda Muthana of Hackensack, New Jersey joined ISIS when she was 19. She wants to come home now. The problem for her is that a U.S. federal court in 2021 upheld the U.S. State Department’s determination that Muthana is not and has never been a U.S. citizen. But having taken the case and thus delved into executive branch policy determinations, the court could at least have addressed relevant existing precedent—that U.S. federal courts since World War II have routinely denied individuals like Muthana access to the citizenship-based legal process she now seemingly wants. Muthana’s case is different from that of Shamima Begum, a former British citizen who joined ISIS at age 15, but the outcome is the same—in February, a U.K court upheld the Home Secretary’s statutorily-based decision to strip Begum of her citizenship despite finding that her presence in Syria was likely the function of trafficking. These rulings are troubling, particularly insofar as they render Muthana and Begum effectively stateless, in contravention of myriad principles of international law and, specifically, Article 15 of the Universal Declaration of Human Rights.

The problem of statelessness is elemental—without citizenship, the individual’s access to the most basic rights diminishes drastically. These rulings therefore beg the question of how far judiciaries should go when considering whether to rubber-stamp the inherently political executive branch decision to effectively strip individuals of citizenship.

Muthana’s Case: Neither the First nor the Worst of its Kind

The State Department initially raised some concerns with respect to Muthana’s U.S. citizenship in light of the status of Muthana’s father as a U.N. diplomat at the time of her birth (children born in the U.S. to U.S.-based foreign diplomats, whose status entitles them to immunity from U.S. law, are not typically entitled to birthright citizenship). But the government obviously determined those concerns resolved in 2005 when it issued Muthana a passport, which it renewed in 2014. And Muthana was never naturalized. But after Muthana joined ISIS in Syria in 2014, the government’s position changed—the Obama Administration revoked Muthana’s passport on the basis that she was not a birthright citizen because termination of her father’s diplomatic status had not been made official before her birth (had Muthana been born after termination of her faither’s diplomatic status, he would have been subject to U.S. jurisdiction and she would thus undoubtedly have been entitled to birthright citizenship). The Trump Administration adopted this same position, arguing that Muthana had never been a U.S. citizen. Muthana’s father sued on her behalf and, in January of 2021, the D.C. Circuit Court of Appeals upheld the government’s position.

But Mr. Muthana’s appeal also presented an equitable argument: that if he had known that the State Department was issuing his daughter a passport but nevertheless also taking the position that she was not a U.S. citizen, then he would have pursued naturalization on her behalf as he did for his two other children. In response, the Court said this: “Although Muthana may have had a good faith understanding that his daughter acquired citizenship at birth, an error initially shared by the State Department, the law affords Muthana no relief. As we have explained, Hoda has never been a U.S. citizen and therefore the State Department revoked her passport, but could not strip her of a citizenship she never lawfully enjoyed.” But Muthana did enjoy all the benefits of U.S. citizenship up until the moment her passport was revoked. It is difficult to understand how revocation of those rights and benefits is not tantamount to revocation of their source—namely, citizenship itself.

The court thus ruled in a manner that presented but failed to resolve a delicate and politically-charged jurisprudential quandary. And it did so while also failing to address that Muthana is not the first U.S.-born individual to join a foreign enemy and nevertheless claim that citizenship entitles her to civilian legal process. She is now, however, the first such individual that U.S. courts have ex post facto declared stateless.

Ex Parte Quirin dealt with a group of Nazi-affiliated submariners apprehended after docking on Long Island but before proceeding with a plan to detonate explosive devices throughout the country. The case now famously stands for the proposition that such individuals may properly be tried before military tribunals. But the Supreme Court’s Quirin opinion also addressed the question of citizenship because among these unlawful combatants was a naturalized U.S. citizen, Hans Haupt. The Court found that because he had passed “behind [U.S. military and naval lines] in civilian dress and with hostile purpose,” Haupt’s claim to citizenship did not entitle him to civilian legal process. Haupt, a U.S. citizen, was ultimately executed after trial by military tribunal.

The Supreme Court thus came nowhere close to declaring Haupt stateless, though it did signal that civilian due process protections guaranteed by the Fifth and Sixth Amendments do not necessarily apply where the citizen concedes alliance with a foreign enemy. Shortly after Haupt’s execution, the Ninth Circuit Court of Appeals seemed to confirm the Supreme Court’s view on the matter in the far lesser-known case of In re Territo, in which the court upheld the government’s position that a captured Italian soldier, born in West Virginia but designated a POW, was not entitled to the civilian legal process by virtue of his birthright citizenship, finding that “a citizen of the United States, domiciled in the enemy country…is deemed as much an alien enemy as a person actually born under the allegiance…of the hostile nation.”

Just as in Haupt’s case, the court in Territo did not suggest that Territo’s misdeeds rendered him stateless, just that he had admitted to betraying his state and, thus, was not entitled to the civilian legal protections to which his citizenship would otherwise have entitled him. Is a different outcome possible where a U.S. citizen is accused of allying with an enemy force but denies it? Apparently not.

Yaser Esam Hamdi was born in Louisiana in 1980, but taken by his father to Saudi Arabia in 1982. After being captured in an active combat zone in Afghanistan in 2001, Hamdi was detained at Guantanamo Bay. Hamdi asserted his U.S. citizenship and also claimed that he had never taken up arms in a manner hostile to U.S. interests, whereas Territo and Haupt had merely asserted citizenship as a means of mitigating the prosecutorial implications of an enemy affiliation that they willingly admitted. But even in Hamdi’s case, the Supreme Court found in a plurality opinion that his sworn denial of enemy affiliation did not entitle Hamdi to all the legal rights of citizenship, including the basic right to have his habeas corpus petition heard, and merely preserved his “right to further process”—a quasi-judicial hearing in which hearsay evidence would be admissible to prove his affiliation with al-Qaeda. To be sure, the plurality opinion did at least take the view that Hamdi was entitled to a circumscribed legal process because of his citizenship—far from a declaration of statelessness.

After Hamdi’s case, it seems clear that even full-fledged U.S. citizenship does not entitle an individual to the full protection of civilian law even where the citizen denies that he or she has engaged in conduct similar to that in which Muthana has. And Muthana, like Haupt and Territo, has never denied that she allied with a foreign enemy. All this is to say that various U.S. trial and appellate courts, faced with individuals like Muthana, have not subscribed to the notion that citizenship alone entitles one to critical legal protections, particularly access to the civilian criminal process that Muthana seems to want.

It is worth noting that the central issue in Quirin, Territo and Hamdi was the scope of the executive authority to detain, but those precedents do not suggest that their treatment of citizenship was intended to apply only in the detention context. Having taken Muthana’s case, the D.C. Circuit could at least have addressed those precedents and perhaps even worked to apply them, as opposed to diving headfirst and eyes closed into the politics of effectively stripping her citizenship and thereby rendering her stateless.

The Case of Shamima Begum

Shamima Begum’s case is critically different in one respect: the U.K. has a statutory apparatus by which the Home Secretary may strip citizenship, which the Home Secretary did in Begum’s case. But in upholding that determination, a British court did not so much as address the problem of statelessness in any practical sense.

Begum left her home in London in 2015 to join ISIS in Syria. Shortly after she was found in a refugee camp in 2019, the Home Secretary Sajid Javid stripped Begum of her citizenship, ostensibly under Section 40(2) of the British Nationality Act 1981, which authorizes revocation of citizenship so long as the Home Secretary has “reasonable grounds for believing that the person is able, under the law of a country or territory outside the UK, to become a national of such a country or territory.” In other words, the Home Secretary was statutorily empowered to strip Begum of citizenship, though not if doing so would render her stateless. But the Home Secretary, who at various times has expressed interest in becoming prime minister, seemed politically committed to keeping Begum out of the country of her birth.

To this end, the Home Secretary articulated the belief that stripping Begum of citizenship would not render her stateless because Begum’s parents were Bangladeshi nationals and she was therefore entitled to apply for Bangladeshi citizenship. But for all practical purposes, Begum was not, as the Bangladeshi Ministry of Foreign Affairs subsequently made clear that it would not afford Begum a path to citizenship that did not include subjecting her to the death penalty. No matter—a separate provision of the applicable statutory apparatus provides that if the Home Secretary is satisfied that the individual has “conducted themselves in a manner which is seriously prejudicial to the vital interests of the UK whilst being British,” then the Home Secretary can make an order under Section 40(2) even if the person would thereby be rendered stateless. But the Home Secretary never explicitly invoked this provision as a basis for stripping Begum’s citizenship. He did, however, say of his decision that “[I]f you did know what I knew, because you are sensible, responsible people, you would have made exactly the same decision—of that I have no doubt…I won’t go into details of the case, but what I will say is that you certainly haven’t seen what I saw.”

Thus confronted with a deeply political and seemingly slapdash determination of a cabinet minister, the Special Immigration Court of Appeals ruled on Begum’s case in February, upholding the Home Secretary’s decision of four years prior despite “accepting that there is a ‘credible suspicion’ that Ms. Begum was trafficked.” The court also considered written evidence submitted by a former MI6 director of counterterrorism that the Home Secretary’s claim that Begum posed a national security risk was “superficial and inadequate.” In the face of all this, the court acknowledged that “reasonable people will profoundly disagree with the [Home Secretary],” but dismissed those considerations as “political questions.” Intriguingly, the prevalence of such questions would itself have been sufficient basis to withhold jurisdiction in the first place, at least under the U.S. federal court system.

As for the Home Secretary having made his decision knowing that it would render Begum stateless, the court found essentially that when making the decision in 2019 the Home Secretary had, in fact, considered that stripping Begum of her citizenship would make her stateless. The court neither explained how it arrived at this conclusion nor how mere cursory consideration of Begum’s statelessness problem was sufficient to discharge the Home Secretary’s duties under the applicable statutory provision, which explicitly states that the Home Secretary cannot strip citizenship if “he is satisfied that the order would make a person stateless.” 

The Problem of Unguided Judicial Citizenship-Stripping

Courts engaging in this kind of judicial citizenship-stripping play fast and loose with considerations of statelessness central to international law, as expressed through the 1948 Universal Declaration of Human Rights, and reemphasized through the 1954 Convention relating to the Status of Stateless Persons, in addition to the 1961 Convention on the Reduction of Statelessness. Common law jurisdictions are not invariably bound by these treaties or their fundamental principles, but courts of any jurisdiction should be concerned with how statelessness diminishes the impacted individual’s ability to secure access to what most such courts consider to be basic human rights—educational resources and healthcare services, to name just two examples.

It is worth noting that neither the U.S. nor U.K. government ever proved or even argued that either Muthana or Begum had ever taken up arms against the nations of which they were once citizens. Their ostensible culpable conduct then, in those governments’ eyes, is mere affiliation with ISIS—taking non-violent action in the furtherance of a detestable socio-political or socio-ethnic ideology. And for this non-violent act, these individuals are no longer welcome in their birthplaces. One wonders whether that logic could extend to non-violent acts of, say, protest or even the basic exercise of speech undertaken by citizens within U.S. or U.K. borders. Any responsible judiciary should wonder similarly and act (or not act) accordingly.

It is high time for courts to more formally consider how and whether cases of citizenship-stripping—actual or effective—can or should be fit within their jurisdiction, particularly in light of the practical problems of statelessness with which international law has long been concerned.