Terrorist Case Reveals Inadequacy of Birth Certificates as Proof of Citizenship

By Dan Cadman on February 25, 2019

About the same time I blogged about the dilemma posed to the United States by Islamic State (ISIS) foreign fighters captured in Syria, news was starting to bubble out on a case that carries implications of a different nature, emanating, though, from the same terror group and the same conflict.

The case involves one Hoda Mothana (alternate spelling Muthana), described by the British newspaper The Guardian as "the only American" in a camp holding 1,500 foreign women and children who were the wives, sons, and daughters of ISIS fighters in Syria. It is a semi-sympathetic portrait of a woman who lived comfortably in the United States, but decided to travel to Syria, where she became an ISIS bride — three times, as her husbands were serially killed in battle. Now she has seen the light and only wants to "come home" to her family in Alabama. However the Guardian also notes:

Once one of Isis's most prominent online agitators who took to social media to call for the blood of Americans to be spilled, Hoda Muthana, 24, claims to have made a "big mistake" when she left the US four years ago and says she was brainwashed into doing so online.

Speaking from al-Hawl refugee camp in northern Syria, while her 18-month-old son played at her feet, Muthana said she misunderstood her faith, and that friends she had at the time believed they were following Islamic tenets when they aligned themselves to Isis.

"We were basically in the time of ignorance […] and then became jihadi, if you like to describe it that way," she said. "I thought I was doing things correctly for the sake of God."

Of course the Guardian couldn't resist a little dig at the U.S. president: "Donald Trump on Sunday urged western countries to repatriate captured fighters, appearing to ignore the fact that his administration has shown little enthusiasm for doing so." Given the appearances of the case, it was probably fair game to point a finger, and I suspect that Mothana's situation left a number of American leaders and diplomats temporarily with a deer-in-the-headlights look, especially after the family's attorney asserted:

The Trump administration continues its attempts to wrongfully strip citizens of their citizenship. Hoda Muthana had a valid US passport and is a citizen. She was born in Hackensack, NJ in October 1994, months after her father stopped being [a] diplomat.

This statement may have been Mothana's undoing because it gave U.S. officials enough information to backtrack and find that her father had indeed been admitted to the United States as a Yemeni diplomat accredited to the United Nations. This is key to the whole matter, because notwithstanding the unresolved legal debate about whether children born in the United States of illegal aliens or nonimmigrants are entitled to birthright citizenship (see here and here), what is uncontestable is that the children of diplomats are not, because the parents are indisputably not "subject to the jurisdiction" of the United States as outlined in Section 1 of the 14th Amendment to the Constitution. That Mothana's father at some point apparently absconded to settle in Alabama undetected does not fundamentally alter the fact of her birth as the child of a diplomat. She is not cloaked with the protection of citizenship.

But the matter leaves nagging questions: How did she procure a U.S. passport (and almost certainly a Social Security card as well)? How did she live so many years with the superficial but important trappings of citizenship to which she was not entitled? It's especially ironic since the same organization of government that authorizes the issuance of a visa and accreditation of diplomatic status — the Department of State — is responsible for the issuance of U.S. passports.

The answer is simple, but deeply unsatisfactory. The U.S. government has no checks and balances, no controls, no feedback mechanism between state vital statistics bureaus that issue birth certificates on one hand, and the Department of State and the Social Security Administration on the other, to ensure that mere existence of a certificate registering birth in the United States is not deemed to be sufficient to prove citizenship in each and every case.

It is an appalling lapse, and one that the Center has commented upon more than once over a period of years. See, for instance, this July 2011 Backgrounder. Also see Item 13 in this April 2016 Backgrounder.

In fact, as recently as our January 2019 follow-up to said Backgrounder, we noted that nothing has been done. (See Item 13 again.)

It is likely that the executive branch can take the regulatory, policy, and procedural steps necessary to adopt and regulate checks and balances between birth certificates and other indicia (such as passports and Social Security cards) to ensure that mere presentation of a birth certificate is not presumed conclusive proof of citizenship, without the need for amending legislation. But failing that, Congress already has a model that could be adapted and applied. It did so with the Real ID Act, to ensure that state motor vehicle licenses and identification cards are adequately vetted.

It is beyond time that the federal government take responsible steps to close this loophole, and if the Mothana case doesn't spur it to action, perhaps nothing will.