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.
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