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Is the American Justice System Equipped to Deal With an Ex-ISIS Member?

Hoda Muthana, a 23-year-old American from Alabama who joined ISIS in 2015, wants to come home and face justice—is that possible?
A member of the Iraqi forces walks past a mural bearing the logo of the Islamic State group in a tunnel.

A member of the Iraqi forces walks past a mural bearing the logo of the Islamic State group in a tunnel.

With the gradual loss of ISIS territories in Iraq and Syria, many of its fighters and supporters are being detained in Kurdish-run camps. But what happens when they want to come home?

Hoda Muthana is a 23-year-old American from Alabama who joined ISIS in 2015. She's now currently detained in a Syrian Kurdish-controlled camp along with her two-year-old son, who has an ISIS birth certificate. Her plea to come back to the United States to face trial has captivated the public. It has also put the Trump administration's lack of policy in this arena in the glaring spotlight.

While President Donald Trump has tweeted that European nations should take back their own citizens, he has been mute on the issue of Muthana. Secretary of State Mike Pompeo put out a statement in February, declaring that Muthana is not a U.S. citizen due to her father's Yemeni diplomatic status at the time of her birth. But Muthana's father gave up his diplomatic status four months before she was born on American soil. Furthermore, Muthana has had two American passports, including the one that she used to travel to Syria to join ISIS in the first place.

During interviews with ABC News and via her lawyer, Muthana has stated that, for everything from providing material support to terrorist groups to treason, she's ready to face whatever criminal charges would await her once she's back. She just wants to be back.

But while the debate so far has centered largely on the legality and morality of Muthana returning, there has been less attention paid to the practical fact that the U.S. justice system simply doesn't have the resources and infrastructure necessary to deal with an ex-ISIS fighter.

For one thing, we don't know if Muthana is still radicalized. Is she genuinely remorseful for having joined ISIS? For her actions once she was a part of the group?

Based on my personal experiences working with more than a dozen former jihadists and interviewing fighters from Hezbollah, ISIS, and the Taliban, I'm skeptical. She was so committed to ISIS that she took the initiative to go across the Atlantic and make her way to ISIS territories. That took strategic planning and an enormous amount of dedication. Once she arrived, she spent the majority of her young adult life under ISIS ideology, and bore witness to some of the world's most inhumane atrocities.

Moreover, there's nothing in her statements that signals that she no longer believes in the ideology. She simply says that there were some actions, such as selecting a husband from a list, that were, in hindsight, "insane." She mostly painted herself as a victim. But a victim doesn't proactively plan an 8,000-mile trip and stay under ISIS for years. And the first step toward deradicalization is accepting responsibility for the part you played.

More fundamentally, the U.S. justice system doesn't have a formal structure for measuring the radicalization level of someone. Neither does it have a formal deradicalization and reintegration program. If Muthana were to come back, it means that she would have to be in solitary confinement for fear that she'd radicalize other prisoners. She may even become a target to other prisoners. Beyond the astronomical cost of solitary confinement, when would—should—the system let her out, and how ought it measure whether she remains a threat to public safety?

And second, once Muthana serves her jail sentence, how would she be re-integrated into society? Not only would she likely be ostracized by society in the broadest sense; the fact that she'd also be a felon would mean that she'd have a hard time finding a livelihood. Would that marginalization re-radicalize her, or force her into criminal activities?

Crucially, despite what Muthana has done, it's important that her baby come to the U.S. If he's left behind, he himself may eventually be radicalized, or at the very least face the attendant stigma of his mother's ISIS status. In addition, terrorist groups can spin the story as one of U.S. hypocrisy: Though we claim to care about helping others, how could we leave a baby behind when that baby's closest relatives are already in the U.S.?

On top of that, by leaving him in Syria or Iraq, the baby would have almost no chance at securing a normal life, given that he'd have an ISIS birth certificate, which isn't recognized by either central government. Without a proper, officially recognized form of identification, these children can't receive federal benefits or even go through the numerous checkpoints across the country. (Plus, when Muthana said that she's willing to go to jail in the U.S. for her crimes, she essentially agreed to being separated from her son. Indeed, her son is better off being raised by his grandparents in Alabama.)

In other words, his mother is a criminal, but he isn't. And he shouldn't bear the burden of her scarlet letter.

The legal and ethical case of whether Muthana should return will continue to rage on. What shouldn't be lost in the conversation is how her case reveals the glaring lack of infrastructure and resources in the U.S. to receive radicalized people. We, as a society, have always kicked that issue down the road, saying that we'll create the resources once the need arises. Well, now it's time—past time, in fact—that we confront the thorny issue of deradicalization head on.

This story originally appeared in New America's digital magazine, New America Weekly, a Pacific Standard partner site. Sign up to get New America Weekly delivered to your inbox, and follow @NewAmerica on Twitter.