Although the remarkable dumpster fire that is the Jussie Smollett self-beclowning saga has captured all the headlines this week, the legally murky kerfuffle that is the so-called "ISIS bride" — Hoda Muthana — is probably the more nationally pressing story.
Muthana was born in the U.S. to a father who was a Yemeni diplomat. All sides of the constitutional debate regarding the original public meaning of the Fourteenth Amendment's Citizenship Clause concede that if the Clause's intermediary phrase, "subject to the jurisdiction thereof," means anything at all, it refers to the fact that the children of foreign diplomats are not automatically granted U.S. citizenship simply due to their having been born on U.S. soil.
After all, as Senator Lyman Trumbull, author of the Civil Rights Act of 1866 and Chairman of the Senate Judiciary Committee during the Fourteenth Amendment ratification debate, stated: "The provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.'...What do we mean by 'subject to the jurisdiction of the United States?' Not owing allegiance to anybody else." The phrase means "not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States," Trumbull helpfully added.
The legal dispute begins with Muthana's father's diplomatic status — or lack thereof — at the time of Muthana's birth. The U.S. government's legal position is that the government's records show that Muthana's father held diplomatic status until February 6, 1995 — which is after Muthana's birthdate of October 28, 1994. The government's position is that this means Muthana herself was not a U.S. citizen at birth. But the details of Muthana's birth are made more complex by the specific actions of her father around that time: Only months prior to her birth, he stepped down from his position at the Yemeni United Nations mission, thereby relinquishing his diplomatic immunity while still remaining in the U.S. on a diplomatic visa.
The legal dispute only gets murkier from there. Muthana was granted a passport in 2004, despite initial reluctance from the U.S. government. Her passport was renewed in 2014, shortly before she sauntered off to Istanbul in 2014 en route to her ultimate destination: The then-ascendant nearby Islamic State "caliphate." While carousing with her motley crew of 7th-century lusting, genocidal, mass murderous, sex enslaving jihadists, Muthana decided to symbolically burn her physical U.S. passport.
While Muthana was in the Middle East marrying three different sharia supremacist Islamic State jihadists (all three of whom died in vain for the terrorist group), the Obama Administration in January 2016 attempted to revoke her passport:
In January 2016, the U.S. government sent the Muthana household a letter addressed to Hoda officially revoking her U.S. passport. The letter claimed that the passport had been issued in error, because there was “no evidence” that she was actually a U.S. citizen by birth. The government asserted that, contrary to the testimony provided in 2004, the U.S. Mission to the U.N.'s records showed that Muthana’s father didn’t lose diplomatic status until months after Hoda was born.
Muthana now shows "remorse" and wants to come home, forcing the Trump Administration to address these thorny legal questions. The Administration's stated legal position is that Muthana is not a U.S. citizen.
With Muthana's father suing the Trump Administration, this legal standoff has all the makings of a blockbuster. The problem, for conservatives who would properly prefer to show zero sympathy whatsoever for a U.S. "citizen" who would jet off to the Middle East to join a sharia supremacist death cult and then feign "remorse" in order to come back "home," is two-fold. First, this legal dispute would take awhile to wend its way through the judicial system, and an outcome that is favorable for Muthana would result in a lot of time wasted over her being brought home before she has even been charged with any crimes. Second, this is simply not an area of law where conservatives — already scarred by what we have seen from Chief Justice Roberts and Justice Kavanaugh, of late — should have any faith in our judiciary to get the law right. At the Supreme Court level, for example, it is not even remotely obvious that any Justice besides Clarence Thomas would be particularly sympathetic to the underlying first principles dispute involving the Citizenship Clause of the Fourteenth Amendment.
I would like to offer an alternative approach. Concede citizenship for Muthana. Let her come back "home." And then immediately try her for treason.
Treason is a constitutionally defined high crime. It is defined in Art. III, Section 3 of the Constitution:
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
Now, it is true that only one person has ever been executed by the U.S. government for treason. Hard to believe, perhaps, but true nonetheless. Soviet spies Julius and Ethel Rosenberg were ultimately tried and executed for espionage, not treason.
But so what? With the sole execution for treason coming during the Civil War, it seems that we are overdue. And there is no particularly persuasive textual argument against Muthana's satisfying the prescribed definition of "treason": Clearly, she "adher[ed]" to America's "enemies" and "[gave] them aid and comfort." She married three different Islamic State jihadists! And a high-profile case of trying a (conceded, in this hypothetical) U.S. citizen for treason after that citizen has defected overseas to a sharia supremacist terrorist death cult is not merely morally just — it would also serve as a wonderful deterrent. Indeed, the Executive Branch trying Muthana for treason, if combined with Congress passing the Expatriate Terrorist Act of Sen. Ted Cruz (R-TX), would be a powerful and clarifying warning to all would-be domestic jihad-sympathizers considering the idea of defection to an overseas Islamic extremist death cult. (Of course, jihad-sympathizing U.S. citizen defectors also have to bear in mind the precedent of Anwar al-Awlaki — the drone assassination of whom I unironically consider the high water mark of the otherwise morally benighted Obama presidency.)
Of course, if trying for treason fails, there are then a myriad of other statutory prosecutorial options, such as 18 U.S.C. § 2339A: Material support for terrorism.
The Trump Administration should consider this modest proposal. Cut to the chase and do not let this constitutionally nuanced controversy get bogged down in the judicial system for years. Let the "ISIS bride" back into the U.S. and then immediately try her for treason.