A group of defendants charged in Minneapolis with attempting to join ISIS and Conspiracy to Commit Murder are claiming  Combatant Immunity.  A simple explanation is a soldier engaged in “traditional combat” operations does not murder an opposing soldier when he kills his opponent in battle.

I said that was a simple explanation, there are actually rules or criteria that apply to the individual and the unit engaged in combat. Here is an example, Combatant Immunity Defined. According to the Geneva Convention all of these criteria must be met.  

The first hurdle, I see, is that these guys never joined ISIS, they had the want to but never made it to the point of actually joining.  They are charged with “Conspiracy to”.  Simply put a federal conspiracy is complete when two or more people share an impure thought and one of them takes a step towards fulfilling that thought.  Okay that’s a little snarky.

These five guys got together and decided they wanted to go to Syria and join ISIS.  We have two or more.  ISIS is defined as a terrorist organization by the United States. Membership or support of a terrorist organization is a criminal offense.  Communicating with a recruiter, buying plane tickets, having a going away party or making a video announcing that intent can all be construed as a step beyond mere preparation.  Once the mere preparation line is crossed the offense is complete.  The step that carries one beyond mere preparation does not have to be illegal as long as that step goes to supporting the overall illegal conspiracy.  It also doesn’t matter if all the players are equal participants.

Conspiracy doesn’t stand alone.  It has to be coupled with an illegal act (to commit murder, give material support to the enemy, etc).

Normally, I would say keep it up guys we’ll keep a bed available for you. But with the Obama administration at the helm this defense just might appeal to them.

Keep in mind that it is not only the how the “military force” is constituted that is addressed by combatant immunity but also how they conduct themselves on the battlefield.  More than a few WWII Nazi and Japanese Generals found themselves on the gallows because of atrocities committed by troops under their command.