Is It Legal to Go Overseas to Fight ISIS?

Brett, a 28-year-old US national who fights jihadists of the Islamic State patrols the streets in the northern Iraqi town of Al-Qosh.
Brett, a 28-year-old US national who fights jihadists of the Islamic State patrols the streets in the northern Iraqi town of Al-Qosh. Safin Hamed / AFP / Getty Images

In January, former Marine Patrick Maxwell returned from Iraq after spending a few months fighting with a Kurdish militia against ISIS. Maxwell left the Marines in 2011 and worked odd jobs, including a stint as a security contactor in Afghanistan. Last fall, he was selling houses in Austin when he decided to go to Iraq. When the State Department and Special Forces spotted him with Kurdish fighters, they urged militia commanders to keep him out of combat, so Maxwell left. When he arrived in New York with all of his gear, Maxwell expected to get arrested for fighting with the Kurdish peshmerga. But no one stopped him.

Maxwell is just the latest in a parade of Americans who volunteered to fight ISIS in Iraq and Syria. More than 100 Americans are currently fighting in Iraq, according to the New York Times, while just a handful of Americans are fighting in Syria. Included in the fight are many veterans like Maxwell, including 28-year-old Jordan Matson; Brian Wilson from Ohio; and Jeremy Woodard from Mississippi, who was recently featured on CBS News. Woodard served in Iraq and Afghanistan, according to the CBS story, but now he, like his fellow vets, is on his own and without the backing of the U.S. government. This raises a big, murky question: Is it legal to go overseas and fight ISIS?

The answer is not straightforward. U.S. code says any American who "enters … with intent to be … in the service of any foreign prince, state, colony, district, or people as a soldier … shall be fined … or imprisoned." But an 1896 court ruling found it was only illegal if Americans were recruited and not if they volunteered. "The U.S. government only cares what direction you're shooting at and who you are shooting at," said Matthew VanDyke, founder of Sons of Liberty International, a nonprofit group that hires veterans to train Assyrian Christians to fight ISIS in Iraq. "As long as you're shooting in the right direction, at bad guys, they don't really care."

VanDyke, who fought with rebels in the 2011 Libyan Civil War to overthrow Muammar Gaddafi, spent time in the winter training Assyrian Christians militia fighters in northern Iraq. His group is recruiting trainers for future missions to Iraq. "Mostly we're looking for former Green Berets," VanDyke said. "There is no shortage of applications."

The State Department has issued travel warnings for both Syria and Iraq and doesn't support Americans traveling abroad to fight ISIS, according to spokesperson Pooja Jhunjhunwala. "As our Travel Warning for Iraq states, U.S. citizens are warned against all but essential travel to Iraq," Jhunjhunwala said. "The U.S. government does not support U.S. citizens traveling to Iraq or Syria to fight against ISIS."

But State Department spokesperson Jennifer Psaki said in October she didn't know of a specific law against it. Legal experts say going overseas to fight is a legal gray area because of the myriad of groups taking part in the Syrian civil war and war in Iraq. Finding yourself on the wrong side could lead to a variety of charges from aiding a terrorist group to treason. "It may not be illegal," said Laura Danielson, an immigration lawyer based in Minneapolis. "If it is on the same side of the United States, I don't know. Murky is probably safe to say. If they're at war with the U.S., treason comes into play."

Americans have a history of heading overseas to fight. In the 1930s, the Abraham Lincoln Brigade fought fascists during the Spanish Civil War. American pilots flew for Britain and China well before the United States got involved in World War II. Jewish Americans have served in the Israel Defense Forces. But as some volunteers have found, it can be a thin line between freedom fighting and terrorism — and making the wrong choice could put you on the one side or the other.

Eric Harroun, who joined the Free Syrian Army but was accused of fighting Jabhat al-Nusra, an al Qaeda affiliated group. He was separated from his unit during a battle, and only linked up with al-Nusra fighters to get back to his unit. He never joined the group. Harroun was arrested in March 2013 after meeting with FBI agents when he returned to the U.S. He was charged with "conspiring to use a destructive device outside the United States," which carries the penalty of either death or life imprisonment. He was later charged with conspiring to support a foreign terrorist group, which carries a sentence of 15 years in prison if convicted. Harroun ended up pleading guilty to conspiracy to transfer arms as part of a plea deal and was sentenced to time served. He died in April 2014 of an overdose at his Arizona home.

Yet despite the risks and legal questions, U.S. fighters like VanDyke are moving forward with plans to train militias in Iraq and in other parts of the region. His main issue is funding. "It is difficult to basically crowdfund the war on terror and crowdfund the expansion, preservation, of liberty," VanDyke said. "But, it also gives the public an opportunity to actually do something tangible instead of just retweeting or clicking ‘like' on a post."