Is It Legal to Kill Osama bin Laden?

Not really. But if you act alone, you're probably in the clear.

BY JOSHUA E. KEATING | JUNE 22, 2010

Update: On May 1, 2011, U.S. President Barack Obama announced that bin Laden had been killed in Pakistan. Unlike the scenario described below, bin Laden was killed by U.S. special forces troops.  According to a senior U.S. security official quoted by Reuters, the troops who took part in the mission were under orders to kill, rather than capture, the al Qaeda leader.

Gary Faulkner, the American man detained in Pakistan while trying to kill Osama bin Laden, will be released this week without charges, according to his family. The 52-year-old Colorado construction worker was arrested last week in northwest Pakistan for carrying weapons -- including a pistol and 40-inch sword -- without a permit. Questions of practicality (and sanity) aside, had Faulkner succeeded, could he have been charged with murder?

Probably not. Faulkner probably couldn't be charged with murder if he killed bin Laden and then returned to the United States, since the murder would have happened abroad where U.S. courts have no say. "Universal jurisdiction" for crimes against humanity is an increasingly popular notion in human rights law, and one that's been gaining some traction in the United States -- a U.S. citizen was convicted of committing torture abroad for the first time last year -- but a simple murder, particularly when the victim is the world's most infamous terrorist, probably wouldn't qualify.

Of course, bin Laden's killer could still be charged with murder in Pakistan, or wherever the assassination took place. The United States has an extradition treaty with Pakistan, but it's hard to imagine any U.S. government handing bin Laden's killer over to Islamabad.

That being said, projects like Faulkner's aren't the sort of thing the United States is about to encourage. Authorities generally frown upon vigilantism, even directed against the worst criminals. The U.S. State Department is  offering a reward of up to $25 million for "information leading directly to the apprehension or conviction" of bin Laden but that's not a license to kill.

The murky legal framework of the war on terror complicates things somewhat. While the U.S. government would never condone the extrajudicial killing of a most-wanted fugitive like Boston mob boss James "Whitey" Bulger, the United States maintains that senior members of al Qaeda are "enemy combatants" and therefore not subject to civilian due process. Some vehemently disagree with this interpretation, but if a CIA drone pilot had bin Laden in his sights, it's unlikely that his first call would be to a lawyer.

However, no one has ever tried to claim that this authority be extended to all citizens. The laws of war only cover killings of combatants by combatants; it's not a blanket privilege to commit violence in the name of counterterrorism. 

The U.S. Constitution does give Congress the authority to grant "letters of marque and reprisal" authorizing private citizens to cross international borders to fight enemies. Letters of marque haven't been issued in the United States since the War of 1812, though U.S. Congressman Ron Paul (R-Texas) has advocated reviving the concept to authorize private militias to fight al Qaeda and Somali pirates.

If some Blackwater-type outfit should decide to take on the killing of bin Laden without bothering with a letter of marque, it should keep in mind that it would illegal for a group of citizens to plan the assassination of bin Laden in the United States under a federal law that prohibits conspiring "with one or more other persons ... to commit at any place outside the United States an act that would constitute the offense of murder, kidnapping, or maiming." The murder itself is still outside U.S. jurisdiction.

Bottom line: If you're planning on taking the war on terror into your own hands, it's probably best not to tell anyone about it beforehand, and get out of town fast afterward.

Thanks to Daveed Gartenstein-Ross, director of the Center for the Study of Terrorist Radicalization at the Foundation for Defense of Democracies; Samuel Rascoff, asssistant professor of law at New York University; Brian Fishman, counterterrorism research fellow at the New America Foundation; and Andrew Lebovich, research associate at the New America Foundation.

Got a question for FP Explainer? E-mail explainer [at] foreignpolicy.com

Department of Defense/Getty Images

 SUBJECTS:
 

Joshua E. Keating is an associate editor at Foreign Policy.

DKJACK

6:13 PM ET

June 22, 2010

The decline of America...

...is exemplified by letting lawyers run wars..

Hate to break it to the hairsplitting twit who wrote the above piece, but justice and legality are not synonymous, and, though lawyers would like to think otherwise, justice TRUMPS legality.

Furthermore, killing Bin Laden, Zawahiri or any of their henchmen is public justice, even if carried out by a private individual. Bin Laden is wanted dead or alive, PERIOD.

 

NORBOOSE

8:21 PM ET

June 22, 2010

Bin Laden is a criminal

He runs a petty little criminal enterprise and we should have treated it as such. By making it a war, we gave them prestige and respect, because WOW, theyre taking on the US 1 on 1. If Bush would have come out and said were going to hunt this scum down like any other criminal group, things would have been a lot easier.

 

CARDSHARP

8:39 PM ET

June 22, 2010

I was just thinking about this

When I was watching Sen. Levin (lawyer) rake General Sheehan over the coals in the DADT commission. It was a crying shame to see some scumbag lawyer trying to score brownie points with the public by dressing down Jack Sheehan. The purpose of the thing was to get the opinion of professionals from the army, what's the point if you're just going to ignore and pick on what they say.

 

EW66

6:41 PM ET

June 22, 2010

Wait...

"if a CIA drone pilot had bin Laden in his sights, it's unlikely that his first call would be to a lawyer"

That's because a lawyer would already be there. Lawyers oversee all drone strikes (and nearly everything that goes on in the military) and there's good reason for it, even though it's not always desirable and sometimes frustrating.

 

SEAN D89

6:43 PM ET

June 22, 2010

Killing bin Laden would be cheered

If a private citizen manages to kill Osama bin Laden he will be treated as a hero. I bet if the guy managed to videotape a professional execution of OBL, and send it to the media, he will definitely make some royalties off of it, hehe. If the government tried to prosecute this lone individual, there are most likely going to be riots in the streets. I'd really like to be the lone American who killed OBL and then escape back to the safety of the US. Because I know that I'm getting laid when I go back stateside!

 

MED

6:58 PM ET

June 22, 2010

Correction

Not to be a stick in the mud Mr. Keating, but even according to your own link on Letters of Marquis, the last letter was given in the 1940s to the Goodyear blimp to hunt submarines, and not 1812 as you state.. See Shock, James R., Smith, David R., The Goodyear Airships, Bloomington, Illinois, Airship International Press, 2002, pg. 43, ISBN 0-9711637-0-7

 

ADJUST_THE_SAILS

7:48 PM ET

June 22, 2010

The US has jurisdiction over US CITIZENS abroad

The United States has jurisdiction to prosecute any US CITIZEN for violating any US crime abroad.

The analysis that some kind of human rights issue would need to be involved is incorrect.

The bigger issue is that simple murder is not a federal offense; the commerce clause leaves criminalizing murder up to the states.

However, without checking the statutes, it is probably a federal offense to cross state lines to commit murder.

Not that anyone would dare to prosecute this guy if he was successful; although he would have shamed two administrations and destroyed THE symbolic rationalizations for at this point beyond hopeless misadventure in Afganistan.

 

NAZIA

11:00 PM ET

June 22, 2010

Osama a WMD

Osama's name and his acts are always remembered as weapon of mass destruction for killing Muslim force.
This name is responsible of destruction of infrastructure of Afghanistan by giving birth the ideas of Talibans and talibanisation in the region.
His name is used since the start of war on terror as an hunting mission.Three Muslim countries have been indulged into war where local army is killing the local or vice verse but world modern armies couldnt trace him so far by spreading their war mission .
So seeing his clear support for US mission , it is obvious his death would be announced in illegal way to cover the whole story.

 

ADRIAN888

12:21 AM ET

June 23, 2010

Is It Legal to Kill Osama bin Laden?

An interesting g post. As said " Faulkner probably couldn't be charged with murder if he killed bin Laden and then returned to the United States, since the murder would have happened abroad where U.S. courts have no say. "Universal jurisdiction" for crimes against current sports news humanity is an increasingly popular notion in human rights law, and one that's been gaining some traction in the United States"

 

SHYAMAL.UCE

3:38 AM ET

June 23, 2010

KILLING OF OSAMA CAN BE JUSTIFIED USING MODERN POLITICAL PHILOSO

This is a very intricate question that asks for a very analytic thinking on part of a rational being.After all what is a state? It is a institution that claims monopoly of legitimate use of force or coercion.And every state and specifically democratic state is binded by social contract to its citizen.. Social contract in turn guareentes liberty of life and property to its citizen which is the bounden duty of every state.
But in osama s case,the state has come virtually to its knees in effort of relieving its people out of this radical and dangerous element.Hence it would not be surprising if an indivgidual out of fear for his and family life is provoked within to take the law in hand.Obviously such act of his can be proved alligned with NO HARM PRINCIPLE OF JOHN STUART MILL.....
I SHALL EXPLAIN IT LATER...IF ASKED.......

 

NICOLAS19

4:02 AM ET

June 23, 2010

Is it legal to kill George W. Bush or Barack Obama?

Are they any less responsible for killing of many-many innocent civilians? No. Any war leader should be killed. No Afghan life is worth less than American.

 

DISIGNY

10:20 AM ET

June 23, 2010

War as retaliation

From my reading of international politics, any assassination of Bin Laden would be regretted by far more people than would cheer. Whatever that has to do with the underlying political situation; not much, I guess.

 

MMACARIE32

12:17 PM ET

June 23, 2010

Law must be respected

I think that every person, regardless of their acts deserve the right to a trial and that law must be applied jucarii. If all of us will start making justice by our own what will come to this world.

 

MSTART12

3:41 AM ET

July 17, 2010

I agree with you. There's a

I agree with you. There's a due process in penalizing criminals all over the world. However, would it still matter if somebody have the privilege to kill this famous terrorists? I don't think so, US will be more thankful than frustrated if that happen.martin start

 

MGINEZ

3:07 PM ET

June 23, 2010

KILLING OF OSAMA CAN BE JUSTIFIED USING MODERN

KILLING OF OSAMA CAN BE JUSTIFIED USING MODERN POLITICAL PHILOSO
This is a very intricate question that asks for a very analytic thinking on part of a rational being.After all what is a state? It is a institution that claims monopoly of legitimate use of force or coercion.And every state and specifically democratic state is binded by social contract to its citizen.. Social contract in turn guareentes liberty of life and property to its citizen which is the bounden duty of every state.
But in osama s case,the state has come virtually to its knees in effort of relieving its people out of this radical and dangerous element.Hence it would not be surprising if an indivgidual out of fear for his and family life is provoked within to take the law in hand.Obviously such act of his can be proved alligned with NO HARM PRINCIPLE OF JOHN STUART MILL.....
I SHALL EXPLAIN IT LATER...IF ASKED.......
desentupidora
informatica

 

RSAFSOZ

3:07 PM ET

June 23, 2010

died

i think he already is died sikis sex

 

OPSUDRANIA

11:53 AM ET

June 25, 2010

Killing Osama, is it legal

It is a very interesting topic and I congratulate the person whose brain child is it. I think there should be good rational debate on this point. It never occurred to me this point. Carry on with the discussion.
God bless
Dr. O. P. Sudrania

 

MEDA

8:07 AM ET

June 26, 2010

nice articel

nice articel

 

MEDA

8:15 AM ET

June 26, 2010

very nice articel good

very nice articel good work

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