FP Explainer

Is It Legal to Kill Osama bin Laden?

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

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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FP Explainer

Are Rare Earth Elements Actually Rare?

Not if you're willing to dig for them.

When Apple's new iPhone debuts later this month, it will be the latest addition to a long list of electronic devices -- ranging from wind turbines to flat-screen TVs -- that rely on rare earth elements, a family of minerals found near the bottom of the periodic table. Rare earth elements are needed to manufacture the consumer electronics for which the world has an exponentially expanding appetite, and are also necessary for green-energy technology like nickel-metal-hydride electric-car batteries. There's just one problem: Almost nobody produces them except the Chinese, and even they may not have enough of them for long. So, are rare earth minerals actually rare?

Not really. The term "rare earth" is an archaic one, dating back to the elements' discovery by a Swedish army lieutenant in 1787. In fact, most (though not all) of the 15 (or 16, or 17, depending on which scientist you're talking to) elements are fairly common; several of them are more abundant in the Earth's crust than lead or nitrogen. The flints in cigarette lighters are made out of rare earths, and they've been used in incandescent gas lamps for more than a century. The stuff has been mined everywhere from Sweden to Southeast Asia to the American West. Even Afghanistan apparently has some.

Today, however, rare-earth mining is almost nonexistent outside China, which came to dominate the market in the 1980s and '90s by cutting world prices and now controls as much as 97 percent of the supply of some of the elements. The United States' only major rare-earth mine, a complex in Mountain Pass, California, that was once the world's leading producer of the minerals, shut down in 2002.

But the limited supply of the minerals in the marketplace is the result of economics and environmental concerns, not scarcity. Even with iPads flying off the shelves and high-end electric cars on showroom floors, the world consumes only a tiny amount of rare earth -- about 130,000 metric tons of it a year, or just over a tenth of the amount of copper produced last February alone. Market forecasters expect the global trade in rare earths to reach $2 billion to $3 billion by 2014, but even that amounts to barely 1 percent of today's iron market. And rare earth elements aren't actually worth very much at the mine -- most of their market value is added in the refining process.

There are also the environmental hazards. Rare-earth mining produces radioactive waste, and dealing with it in the United States and Canada requires a lot of permitting and expensive mitigation efforts -- the sort of thing that puts North American producers at a disadvantage to less scrupulously monitored operations in China. As a result, though prices have jumped in recent years, mining rare earth is still orders of magnitude less lucrative than copper or iron; for the big mining companies, it simply isn't worth the effort.

But the business could become worthwhile for smaller companies in the not-too-distant future, for a few reasons. For one thing, a few rare earth minerals actually are pretty rare. "Light" rare earth elements such as cerium -- an ingredient in enamels and glasses -- are plentiful, but "heavy" ones such as europium -- used produce color in TVs and other screens -- are growing harder to come by. The U.S. Magnet Materials Association predicts that China's own demand for some of the minerals will outstrip its supply in two to five years; pressure to develop the few other known reserves will increase accordingly. The U.S. military -- which relies on imported rare earth elements for lasers, missiles, radar systems, and other technologies -- has also fretted about its dependence on Chinese imports.

An April report from the U.S. Government Accountability Office found that developing a domestic supply would take seven to 15 years, but a U.S. congressman has introduced a bill that would try to speed things up with federal loan guarantees and other perks for mining companies. At least two North American companies are waiting in the wings: Molycorp Minerals, which bought the Mountain Pass mine in 2000 and hopes to have it up and running again soon, and Avalon Rare Metals, which wants to develop a very large deposit in Canada's Northwest Territories. If prices continue to rise, it could be enough for a handful of these smaller operators to turn a profit -- though probably not enough for anyone to tell stories of the Great Praseodymium Rush of 2011.

Thanks to Jack Lifton of Technology Metals Research, Virginia Morgan of Avalon Rare Metals, and David Trueman.

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