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Letters of Marque & Reprisal

Rep. Ron Paul urges that Congress use its neglected constitutional power to "grant Letters of Marque and Reprisal." Seems like a good idea to me.

Before commenting, please read the Politico article, which address various ways in the Letters might need to be updated from their 19th century predecessors. Especially welcome are comments about how well the Letters of Marque and Reprisal worked in the Early Republic, and what we can learn today from those historical experiences.

The Cabbage (mail):

Especially welcome are comments about how well the Letters of Marque and Reprisal worked in the Early Republic research ideas for my next article, and what we can learn today from those historical experiences.



fixed that for ya ;)
4.15.2009 4:07pm
Le Messurier (mail):
"Rep Ron Paul". Oh, you mean the Dennis Kucinich of the Republican party. That about says it all, except that it's a very dumb idea. As requested, I read the Politico article which confirmed this analysis. It's a dumbidea. 'nough said.
4.15.2009 4:17pm
Splunge:
Well, the obvious conceptual difficulty here is that privateers only really work well against lightly-armed cargo ships, and their purpose is to punish the offending power economically. The 18th century equivalent of "economic sanctions." Warships were generally necessary to deal with pirates, privateersmen themselves, often enough literally as well as conceptually.

I don't seen much difference here. The difficulty noted in the article -- that pirates don't carry valuable cargo -- as well as the other obvious difficulty that it's cheap and easy for the pirates to arm themselves quite well for a small-arms firefight mean that today, just as in the 18th century, it will not be economical for serious private interests to take up the challenge, at least, not unless the government puts bounties so high that it would probably be cheaper to use the Navy.

The third obvious difficulty is that inevitably some of these private citizens would get into trouble, be taken hostage, for example. Then we've got a mess. If the government simply left them to take their chances, I suspect this would not sit well with the general public, particularly if the pirates were good (as many 21st century terrorists are) with the media manipulation. Remember Nick Berg? Given who he was, and why he was in Iraq, it would be pretty reasonable to say he got himself into the jam, and it wasn't the nation's problem to get him out. But that's not the way people reacted. He was an American, and so he ought to be rescued, with all the resources at our command, full stop.

It would be that way with these private bounty-hunters, too. The moment some got in trouble and a handsome 22-year-old would-be Rambo was paraded in videotapes, with threats of beheadings by psychotic looking greasy men waving ski masks and AK-47s, et cetera, and the obliging national news fired up the 24/7 coverage of the anguished family in Peoria or Sacramento ("Day 14 Of The Crisis," "we just want to see our boy home safe"), the legalism of how he got there would be forgotten, and the nation would insist on sending an aircraft carrier task force to attempt a rescue. Net savings over using the military in the first place, approximately zip, or possibly strongly negative.
4.15.2009 4:19pm
Colin Adkins (mail):

that pirates don't carry valuable cargo

The privateteers would obvious need to wait to srtike until after the pirates got paid their ransom. Which, um, would seem to create an incentive on behalf of the privateteers in favor of piracy. Um, ...
4.15.2009 4:24pm
Blue:
Um, these pirates are running around in motorized skiffs. It wouldn't take a very large company to outfit a pirate hunting craft that would make very short work of them.
4.15.2009 4:25pm
Tracy Johnson (www):
A google search netted me that the Goodyear Blimp was issued a letter of Marque for antisubmarine operations in the Pacific during WWII. (It operated out of Los Angeles.) That disagrees with the Politico statement referring to the war of 1812 as last use.
4.15.2009 4:30pm
Splunge:
Anyway, if you want to stop pirates, you have to think outside the legal box a little.

For example, establish some suzerainty or protectorate over the waters in question, with a UN figleaf resolution, or just unilaterally, then insist everyone sailing have a license issued by yourself, and with some very modest fee (say $10,000 per year per ship) easily affordable by a giant container-ship line. (We waive the fee for private yachts, should any still be foolish enough to venture into these waters.)

Then you send in destroyers and gunboats to patrol. They just stop every ship they see, and if you won't stop, can't or won't produce the license, they sink your ship, strip you naked, and (depending on how photogenic you are and who would miss you) either drop you into the sea or put you on a deserted beach in Somalia 250 miles from home and 15 miles from the nearest fresh water.

You won't get every ship, of course. But since you've got radar and aerial surveillance, and since you're not waiting until you catch someone red-handed, it should be pretty good hunting.

The number one problem, of course, would be the huge fifth column of opportunistic lawyers, journalists, and politicians who would decry the predation on innocent Somali tribal fishermen, the violation of the rule of law, and whatnot. It could probably only happen under a Democratic US President, since a Democrat's stance on affirmative-action, abortion, and the nationalization of everything for the greater good immunizes them to a significant extent against that kind of criticism.
4.15.2009 4:30pm
Steve:
I don't see the need for outsourcing these duties. We have a very powerful navy, and unlike our ground forces, they don't seem to be particularly stretched to the limit at the present time. Keeping the shipping lanes clear for U.S. shipping sounds like an ideal job for the brave sailors of the Navy.
4.15.2009 4:36pm
DennisN (mail):
Dealing with the motorboats is the easy part. Finding them would be the hard part, It's a big ocean. Escorting merchies would be more economical.

I don't see any reason not to place armed protective crews, they could be mercenaries working under a Letter of Marque, on US Flagged vessels, or any one else who would pay for them, but I suspect the shipowners would still find it cheaper to play Pirate Roulette.

Outfitting warships, even crappy private ones, is expensive. Unlike the colonial period, you can't just go to the cannon foundry and have some twelve pounders made up. Weaponry, particularly artillery and machineguns, are highly controlled. You'd need a substantial vessel, something roughly akin to a WW-II Destroyer Escort to have the endurance and sea keeping ability to maintain a presence.

The vessels would need basing facilities. I can't imagine most countries welcoming privately owned warships into their ports, particularly manned by the semi-piratical crews that privateers attracted historically.

Many of the famous pirates of yore, started out as privateers.
4.15.2009 4:38pm
Uh_Clem (mail):
So, assuming I obtain a letter of marque and manage to capture one of those inflatable motorboats from the pirates, how much can I expect to get for it? Enough to cover the expenses of outfitting a privateer vessel and sailing it around the horn?

I'm afraid that the invisible hand of the market is going to be slapping it's invisible forehead here...
4.15.2009 4:45pm
The Unbeliever:
Glad to see my (extremely casual) suggestion on the other piracy thread is getting revived... though I wish it was by someone more credible than Ron Paul.
Well, the obvious conceptual difficulty here is that privateers only really work well against lightly-armed cargo ships, and their purpose is to punish the offending power economically. The 18th century equivalent of "economic sanctions."
True, but a key distinction is that privateers preyed on private enterprises; if you were Captain John Doe, owner of your own ship and minding your business on your family's usual trade route, and you were flying an English flag during one of the (many) periods where France happened to be pissed off at your mother country... you got attacked.

The difference is back then commercial shipping was a much larger aspect of country's economy and financial health. So much so, that interferring with shipping became a primary act of war; if enough tax ships or foreign raw materials were intercepted, the nation itself could have its ability to wage war dramatically reduced.
Warships were generally necessary to deal with pirates, privateersmen themselves, often enough literally as well as conceptually.
Yes, but keep in mind that such warships--along with their artillery and ordnance--were often in private hands as well. The government navy may provide patrol and local protection services as part of the government's core function, but they certainly did not have an absolute monopoly on the ability to field vessels of war.

Of course, the skyrocketing cost of military hardware might make a modern equivalent cost-prohibitive. Say a shipping company bought a decomissioned Navy destroyer to escort their own ships; they might be able to afford the purchase cost, but maintenance and crew would probably kill off profit in an age of cheap transport and thinning margins.

(But just imagine the awesome advertising they could put out. "Acme Shipping: 50 years experience and .50 guns")

On the other hand, maybe warships aren't really necessary any more. I haven't seen where these pirates are bringing heavy artillery to fire on their targets; it may be enough to just arm regular light craft to repel boarders, and have your crew members more heavily armed and protected than the pirates in powerboats armed with rifles.
4.15.2009 4:45pm
Hedberg:
Sounds like a fine opportunity for Patri Friedman and his merry band of seasteading libertarians.
4.15.2009 4:49pm
Anderson (mail):
In other words, Blackwater in boats.

I don't see what could possibly go wrong.
4.15.2009 5:06pm
cognitis:
Thanks to the Blogger for providing an example of US' disintegration: a congressman refers a bill that would permit President to use pirates (mercenaries) to capture pirates or to use "vague" soldiers (mercenaries) to capture "vague enemies". Paul needs to read Machiavelli, though superficial, on mercenaries or even view a few scenes from "24", though evocative and puerile.
4.15.2009 5:06pm
Joseph Slater (mail):
The first day of my Con Law class (many years ago), the prof. used the Letters of Marque and Reprisal Clause as an example of a part of the Constitution that nobody in the class would have heard of. And it has stuck in my mind since then.
4.15.2009 5:06pm
Avatar (mail):
Why not just base off the Somali coast? It's a "lawless" region that's host to pirates, after all... even if the local authorities object, they can't do anything about it. (Or if they CAN, then obviously they could do something about the pirates after all, but just aren't... in which case you tell them "shut down your pirates or we bomb you into the stone age.")

Of course, the threat of foreign territorial incursion might rouse the remnants of authority in the region in ways that a few RPG-equipped losers in a speedboat don't.
4.15.2009 5:10pm
Jon Roland (mail) (www):
The recipient of a letter of marque and reprisal doesn't have to be a private party. When the commissions were invented the distinction between naval and merchant vessels wasn't important. We have a page documenting such warrants here. It would be quite appropriate to issue them to either naval or merchant officers and their crews for warlike actions short of all-out war, or for enforcement of laws against piracy, a warlike act of a foreign nonstate actor. There is also statutory support for the president to call up merchant ships for naval duty as a naval militia.

More on militia and related topics in Military Affairs. Reports to the U.S. Congress on military and militia matters. Volume 1 contains reports from Mar. 3, 1789, through Mar. 3, 1819.
4.15.2009 5:19pm
Crunchy Frog:
Anderson: Why not just hire a squad of Blackwater types as security for sensitive cargo? They don't actually have to do anything unless the boat comes under attack - then the bad guys have a very rude surprise.
4.15.2009 5:20pm
Jon Roland (mail) (www):
As for arming the vessels, they don't need cannon. Mounted .50 cal. and shoulder-mounted ship-to-ship missiles would do the trick. Add to that a good RADAR and perhaps SONAR system to detect the approach of pirates, and a bullhorn to warn vessels not to approach or be fired upon. Easily provided.

But first we need to free the 75 ships and 300 hostages currently being held under threat. Along the way wasting a few coastal towns that harbor the pirates would be in order.
4.15.2009 5:24pm
cognitis:
President Clinton invaded Somalia in 1993 with cause of effecting order; one Somali leader repelled the invasion, destroying a ranger company, and ejected US from Somalia.
4.15.2009 5:28pm
Gray Ghost:
"The privateteers would obvious need to wait to srtike until after the pirates got paid their ransom. Which, um, would seem to create an incentive on behalf of the privateteers in favor of piracy. Um, ..."

In fact, the pirates don't get their ransom money in cash on the boat. It gets delivered to their agents elsewhere. But you are right, there is no economic gain to be had for anyone granted letters of marque and reprisal.

GG
4.15.2009 5:30pm
Floridan:
What's the difference between the government bailing out banks that took huge, unnecessary risks, and expending military resources to protect shipping companies that are taking huge unnecessary risks?
4.15.2009 5:34pm
Gray Ghost:
This seems a perfect situation for the use of unmanned aerial vehicles. Put one in the air over each likely pirate target. Set up a comm link between the boat's skipper and the UAV pilot. UAVs are basically invisible to those below because of their small size and altitude. The pirates would never know they are there. Then when a pirate vessel attacks (and UAV video link confirms the gunfire, RPGs and / or boarding attempt) one Hellfire missle takes care of that boatload of pirates. UAVs have long station times and are relatively cheap to operate, cheaper than navy vessels or putting a squad of Blackwater mercenaries on board a ship. Simple if we can find a place nearby to base the UAVs.

GG
4.15.2009 5:34pm
one of many:
2 things came to mind reading the comments,

first: forget a ship, just use a helicopter

second: are any of the old soviet surplus ship-killer dolphins still alive?




As for the monetary issue, if letter of marque were issued I am reasonably certain shipping insurers/companies would be able to come up with enough cash to make the practice profitable. The ransoms are not a crippling amount of money and it's easier to pay than pick up the bad press of hiring a Blackwater type group to handle the pirates, but if a goverment were to authorize privateers it would be cheaper and safer to pay the privateers, of the top of my head, $5MillionUS/year.
4.15.2009 5:49pm
Oren:

Mounted .50 cal. and shoulder-mounted ship-to-ship missiles would do the trick. Add to that a good RADAR and perhaps SONAR system to detect the approach of pirates, and a bullhorn to warn vessels not to approach or be fired upon. Easily provided.

No, first you need to convince the sovereign nations to which the ships are heading to allow armed vessels to casually sail into their ports.

GG, UAVs are in high demand in Iraq and Afghanistan. We just can't build them fast enough to meet demand from the commanders. We just ramped up to a whopping 15 per month.
4.15.2009 5:51pm
Jon Roland (mail) (www):
Oren:

... first you need to convince the sovereign nations to which the ships are heading to allow armed vessels to casually sail into their ports.

Naval ships do that all the time. Armed merchant ships are no different. The locals might want the arms secured while in port under their protection, so they couldn't be transferred to shore, but merchant ships carrying cargoes containing arms pass through all those ports frequently.
4.15.2009 6:02pm
My Middle Name Is Ralph:
This seems like a terribly dumb idea. As Politico notes, there's no self-financing like in the old days where they got a share of the ships and cargo captured (kind of like a PI lawyer's contingency fee!). Thus, the US government would have to pay bounties for pirates killed or captured. But, once you start offering bounties for killing or capturing "pirates" you really open the door for abuse by the bounty hunters. And what happens when some yahoo gets himself captured by Somali warlords? The the Marines have to go in to rescue him. Blackwater was a fiaco in Iraq. No need to repeat our mistakes in the waters off Somalia.
4.15.2009 6:23pm
My Middle Name Is Ralph:

Um, these pirates are running around in motorized skiffs. It wouldn't take a very large company to outfit a pirate hunting craft that would make very short work of them.


If it's so easy, why can't the US Navy handle it?
4.15.2009 6:27pm
Jon Roland (mail) (www):
If you read our page on the subject you will find that the purpose of letters of marque and reprisal is to distinguish those carrying them from pirates themselves. No letters means you are a pirate if you commit warlike acts. The letters are like an arrest warrant.
4.15.2009 6:28pm
Richard Aubrey (mail):
The Letters also specify who may be attacked. Attack anybody else and you are, legally, a pirate.
It would be interesting to see what kind of description would be in the hypothetical letters.
4.15.2009 6:36pm
Tracy Johnson (www):

Many of the famous pirates of yore, started out as privateers.

And vice versa. (And some getting completely flipped with officer commissions.)

That reminds me, I have a partial recording of some of my beer drinking naval gamers singing Barrett's Privateers on my HP3000 server. (They were in a T.G.I. Friday's at the time.)
4.15.2009 6:37pm
My Middle Name Is Ralph:

Anderson: Why not just hire a squad of Blackwater types as security for sensitive cargo? They don't actually have to do anything unless the boat comes under attack - then the bad guys have a very rude surprise.


This is exactly what I have been suggesting as the most effective means of dealing with the pirates. But, I suspect that it's just not economical from the standpoint of the shipper.

A very rough estimate:

1. The chance of a ship being captured is 1%.

2. The cost of ransoming back your ship and crew is $1 million.

3. Thus, the shipper's cost of doing business right now is roughly $10,000/voyage through pirate waters.

4. How much per day per person would it cost to hire a Blackwater-like mercenary? $1,000/day? How many guards would be needed and for how many days? Maybe 5-10 mercenaries for a week? I'm guessing even conservative answers to these questions would result in a number much bigger than $10,000.
4.15.2009 6:40pm
epeeist:
I read the article linked to.

I recalled there was a 19th century treaty regarding letters of marque, and double-checked Wikipedia to confirm this. The 1856 Treaty of Paris, in which the U.S. and other signatories agreed not to issue letters of marque and reprisal.

Anytime a simple check of Wikipedia finds something that should have been in an original article (in this case Politico), I question how much effort went into said article. I'm not arguing Wikipedia is authoritative, I'm arguing it's a good check.

Now, I realize that with a specific Constitutional provision, notwithstanding a treaty enacted pursuant to that same Constitution, I assume the U.S. still has the Constitutional ability to issue letters of marque. However, as in any situation where the U.S. is considering abrogating its treaty obligations, some thought should be put into the concomitant effects - is it worth it (will other nations including "rogue" nations start issuing letters of marque, treatment of detainees captured who were operating under such letters of marque, etc.).
4.15.2009 6:59pm
Thales (mail) (www):
I thought the Easter weekend action was good live rescue and target practice for the SEALs--why deprive them of that by outsourcing it to the Bubba Gumps of the world?
4.15.2009 7:00pm
epeeist:
Oops, my bad, the U.S. actually wasn't party to the declaration but later indicated it would abide by it. So similar (but not the same) issues apply (effect on other nations, etc.).
4.15.2009 7:00pm
sobi:
Cabbage,

Too funny. Helpful though.
4.15.2009 7:05pm
D.R.M.:
Epeeist β€” The United States never indicated it would abide by the restriction in general; it issued limited declarations in the Civil War and Spanish-American War that it would abide by it for the duration of hostilities. As mentioned in above comments, a letter of marque was issued by the United States in the Second World War to the blimp Resolute.
4.15.2009 7:58pm
Jon Roland (mail) (www):
epeeist:

The 1856 Treaty of Paris, in which the U.S. and other signatories agreed not to issue letters of marque and reprisal.

Read the article more carefully. The U.S. has not assented to the Declaration of Paris, which was an appendix to the Treaty. It ino constraints on issuing letters of marque and reprisal other than historical ignorance.

I encountered such ignorance in the person of a nominee to the federal bench under Bush 43 whose nomination was stalled in the Senate. While it was pending, he was appointed as the guy in charge of terrorism law in the DoJ. He spoke to our Austin chapter of the Federalist Society, and I asked him about LoM&R. He said he had "never heard of them". Didn't seem interested in learning, either.
4.15.2009 8:08pm
Jason Arvak (mail) (www):
4.15.2009 8:28pm
Perseus (mail):
In other words, Blackwater in boats.
I don't see what could possibly go wrong.


I wondered how many comments there would be before a snark was made about Blackwater.
4.15.2009 8:59pm
DennisN (mail):
@ epeeist

will other nations including "rogue" nations start issuing letters of marque,


Issuing letters of marque is an act of war. If we issued them, we would deliberately be invoking warlike measures against the target entity. That's not a problem for us, that would be exactly the purpose of issuing LMs.

If another country wants to declare war on the USA, I suspect they'd have easier ways to do it than publicly sanctioning privateers.

It's not a covert act.
4.15.2009 9:07pm
Perseus (mail):
I neglected to note that Blackwater apparently already has a ship, McArthur, deployed for this purpose. See article here.
4.15.2009 9:11pm
Hank Bowman, MD (mail) (www):
Letters of Marque (and Reprisal) only provided a legal 'out' for ships and people otherwised engaged in piracy.... The nations that agreed to abide by the LOM's had the out so they wouldn't be required (under international law, such as it was/is) to punish the 'privateers' if caught performing their piratical acts.

It did nothing to give justification to any nation that refused to honor them. It doesn't matter that the US Constitution specifies that Congress can issue them, if no other nation will HONOR them.

And, since LOM's are not recognized by any signatory to the Declaration of Paris, it won't protect the individuals who thought they were engaged in a legal act, in any other court system - and they don't need it for the US court system.

Right now, some judge in Spain is deciding if he will indict the former President and Vice President of the US, and some staffers. Think Ron Paul (senile idiot of the year that he is) should encourage some third-world El Supremo jurist to go after some honest working men?
4.15.2009 9:37pm
cognitis:
Citizenry's use of mercenaries in place of soldiers introduces two matters: participants' cause and jurisdiction. Soldiers' remuneration suffices only for daily consumption and not for accumulation of capital: soldiers serve for cause of duty to citizens and not of self-interest; mercenaries in opposition serve only for cause of self-interest and care not at all for the citizens. Soldiers are subject to jurisdiction of both their citizenry and also any treaties of the citizenry; mercenaries are subject to only jurisdictions of whatever citizenry or other Sovereign in whose land the mercenaries operated. Be the preceding accurately described, expect mercenaries to injure their employers should vicissitudes of Fortune mutate the mercenaries' interests; expect also mercenaries to respect and care for the laws of their employers' enemies more than the laws of their employers. For those who don't cogitate on principles but only recognize examples, consider this: why wouldn't a mercenary captain--having received from his Sovereign employer sufficient arms, training, and military intelligence--not renegotiate with his employer once he's captured his object. Here's an example: US hires Mercenarius LLC to "secure" Basra and provides LLC with port blueprints, harbor seabed geological surveys, descriptions of insurgents' weapons and training and tactics (all acquired by US at great cost in lives and money); LLC captures port and fortifies it against not only insurgents' attacks but also US attacks, and LLC also mines the harbor using the same surveys used to capture it; then LLC demands in place of it's fixed fee a percentage of every barrel of crude oil transiting the harbor. Who was the greater danger to US, the insurgents or the mercenaries?
4.15.2009 10:00pm
Splunge:
Right now, some judge in Spain is deciding if he will indict the former President and Vice President of the US

Do you suppose they'd be doing that if such things were actually treated as acts of war?

In this case, it's the very fatuous nullity of the acts that allows their existence, a very Alice in Wonderland kind of thing. You probably have to be a lawyer -- perhaps even an international law lawyer -- not to get the joke.
4.15.2009 10:02pm
Finance lawyer (mail):
The United States is not a party to the Declaration of Paris.

It's hard to imagine anything dumber than the world's greatest naval power, most globalized economy and largest maritime trader condoning the revival of privateering. Privateering's sole purpose is commerce raiding. No country with a real navy -- and certainly no country that relies on maritime commerce-- wants anyone to grant letters of marque.
4.15.2009 10:16pm
Philistine (mail):

I wondered how many comments there would be before a snark was made about Blackwater.


Hell, the original article quotes a snark about Blackwater.
4.15.2009 10:50pm
uh_clem (mail):
What's the difference between the government bailing out banks that took huge, unnecessary risks, and expending military resources to protect shipping companies that are taking huge unnecessary risks?


Simple.

The shipping companies are taking a calculated business risk. Like it or not, they accept a certain percentage of kidnapping and ransom per voyage and plan accordingly. Unlike credit default swaps, it's a computable manageable part of the cost of doing business.
4.15.2009 11:58pm
ERGA:
I actually suggested modern letters of marque as a paper topic a couple weeks ago.
4.16.2009 12:03am
Tom Perkins (mail):
@ Le Messurier
<blockquote>
As requested, I read the Politico article which confirmed this analysis. It's a dumbidea. 'nough said.
</blockquote>

The article didn;t say that at all. I don;t think you actually read it. It enumerated several problems with applying the original concept of privateer to the Somali pirates, and then also enumerated the ways the problems were easily solved.

Yours, TDP, ml, msl, &pfpp
4.16.2009 12:21am
Jon Roland (mail) (www):
Some of the participants on this forum seem stuck on the notion that LOM&R can only be issued to private parties. That is not correct. It was historically common to do so, but the underlying concept is a warrant to lawfully commit warlike acts short of those authorized by a declaration of war.

However, they are also not needed to deal with foreign nonstate actors, as the Somali pirates seem to be. If Somalia had a functioning state and the pirates were privateers of that nation-state, then LOM&R would be appropriate. There is not, and they are not. The law of nations allows anyone to kill foreign nonstate warmakers whenever they can, without most of the the niceties of due process, other than to identify them and verify their actions. Not only naval, but even merchant, officers have jurisdiction to dispose of them summarily.
4.16.2009 12:23am
Jon Roland (mail) (www):
During the War of 1812, which was declared, Congress screwed up and authorized President Madison to issue LOM&R, and he accepted the authorization. But the legislative authorization was misframed. They were really issued to the president and forces under his command, with the implication that he could use it, using either naval or merchant vessels, domestic or foreign. (He could have issued them to foreign vessels, which would have made them U.S. flag vessels for the purpose of acting under their authority.)

Another way to view LOM&R is militia callups with commissions, especially for naval militia not linked to any particular state (so the state doesn't appoint the officers). Strictly speaking, it is not the appointment of officers. That is done privately, just as militia officers for land units were typically elected by the members of the unit. The LOM&R are therefore a warrant issued to the unit rather than to the individual, although an individual may speak for the group.
4.16.2009 12:33am
epeeist:
Finance Lawyer, well said. I'll be much longer...

Re my "rogue" nations example.

Let's say at the outset of the Iraq war (i.e. a real war with a specific country) that Iraq issued letters of marque to all and sundry - including non-Iraqis, al-qaeda members, taliban, anyone with a grudge against the U.S. whether Iraqi or not.

Then those people with letters of marque started attacking U.S. boats, shipping, passenger vessels, whatever, in the Great Lakes, U.S. coast, Gulf, internationally, wherever. My understanding is that so long as they didn't deliberately e.g. massacre civilians that they could pretty much destroy whatever shipping they wanted using whatever military weapons they wanted and not be pirates (indeed, not be criminals, if captured they would be entitled to be treated as privateers). They would all in principle be legally protected and not pirates but rather privateers because they had letters of marque. They could still be detained, of course, but not as criminals but more like POWs.

Is it really in the best interests of the U.S. to recognize the legitimacy of letters of marque? To take an example closer to Somalia, let's say an African nation (or any nation) undergoing a civil war, one of the sides with nothing to lose issues letters of marque and reprisal. Are those "valid" and even if not, are those who act under them in "good faith" entitled to the protection of not being pirates?

A somewhat related (in my view) example, when at the outset of the Iraq war I think a White House spokesman said that it was legitimate to attack Hussein directly (i.e. with missile strikes on his reported position) because he was a legitimate military target as head of the armed forces. The corollary to that, which I think someone asked but the spokesman refused to answer, was did that mean the U.S. President (as commander in chief of the military) was a legitimate military target for e.g. bombs or missiles no matter where he was...quid pro quo.
4.16.2009 12:48am
Jon Roland (mail) (www):
epeeist:

They would all in principle be legally protected and not pirates but rather privateers because they had letters of marque. They could still be detained, of course, but not as criminals but more like POWs.

Mostly correct. However, the authorizing nation would then be responsible, along with all its citizens and their assets. It would then be appropriate to issue LOM&R to one's own forces, public or private, to do proportionate damage to assets of the offending nation, until either a treaty ends the conflict or one of them just quits.
4.16.2009 1:22am
Harry Eagar (mail):
I thought the original request was for how privateering worked, not how it was looked at by lawyers.

The short answer is, not very well. As commercial ventures, the privateers steered clear of any targets likely to fight back. They did not amount to a substitute or privately-financed navy.

They were also, like partisns, admissions by the sponsoring power of its relative powerlessness.

My proposal for ending Somali piracy (it wouldn't work in other places) capitalizes on the clan and communal nature of the Somalis. (This was demonstrated, for example, in the brief 'negotiations' with the clan leaders, who could have controlled the Maersk Alabama pirates if they'd wanted to):

Inform the chiefs that they are responsible for the behavior of their clansmen and will be punished equally. Then hang a few.

This is actually a two-fer. Controls piracy and opens the way for a civil society in Somalia. It's obvious that traditional leadership is one of things standing in the way of developiung a functioning national state in the area (should that be considered desirable).
4.16.2009 7:53am
a knight (mail) (www):
Ron Paul gets away with one hell of a load of deceit, because no one seems willing to fact-check him. This is an excellent case in point: Politico's half-truth glossing of the letters of marque legislation proposed by Paul just after September 11, 2001:
Days after Sept. 11, Paul introduced legislation allowing President Bush to allow private citizens to go after Osama bin Laden and other identified terrorists and put a bounty price on the heads of targets responsible for the New York attacks. Contractors would also be required to post a play-by-the-rules bond and turn over any terrorists β€” and their seized property β€”to U.S. authorities.

Well...not exactly. On October 10, 2001, Ron Paul introduced two bills in The House of Representatives, related to letters of marque. Notice of these two proposed bills were entered into the Congressional Daily Record, October 10, 2001, Pages H6504-H6505:

H.R. 3074. (short Title: Air Piracy Reprisal and Capture Act of 2001) - A bill to amend title 18, United States Code, and the Revised Statutes of the United States to provide punishment for, and to authorize the issuance of letters of marque and reprisal against acts of air piracy; to the Committee on the Judiciary.

H.R. 3076. (Short Title: eptember 11 Marque and Reprisal Act of 2001) - A bill to authorize the President of the United States to issue letters of marque and reprisal with respect to certain acts of air piracy upon the United States on September 11, 2001, and other similar acts of war planned for the future; to the Committee on International Relations.

On July 27, 2007, Paul introduced onto the House floor the following proposed legislation:

H.R.3216. (Short Title: Marque and Reprisal Act of 2007) - To authorize the President to issue letters of marque and reprisal with respect to certain acts of air piracy upon the United States on September 11, 2001, and other similar acts of war planned for the future.

All three of these proposed bills were attempting to extend the breadth and reach of "letters of marque" farther than the Constitutional "Captures on Land and Water", to include Air. HR 3074 was specifically intended to change U.S. Code to extend the definition of piracy to Air. This goes far beyond the historical scope for letters or marque and reprisals, which targeted vessels owned or flagged by a specified sovereign power; to include private property owned by Airlines.

H.R. 3076 and H.R. 3216 predicated the cause necessitating the bills' proposals as being acts of air piracy, although also included mention of other acts as being precipitate cause(s) for a letter of marque being issued, yet both clearly stated the targets to be, "Osama bin Laden, of any al Qaeda co-conspirator, and of any conspirator with Osama bin Laden and al Qaeda" , a far more restrictive class than Politico's, "Osama bin Laden and other identified terrorists". Paul does not deserve brownie points, just because he is able to distort his past bill proposals to fit current circumstances. These proposed bills would not have enabled the using letters of marque in the current Sudanese instance, without revision.

Additionally, it is surprising that Paul, who claims to be a strict Constitutional textualist, would so easy hand over Powers specifically delegated as Congressional to the President. Both H.R. 3076 and H.R. 3216 would have authorized the president to issue letters of marque and reprisal on his decision alone, yet this is clearly a Congressional Duty, falling under the power to declare war.

From the Politico article:
"You have to find a stable court system nearby to have them tried for these offenses, but that can be quite complicated," Malone said. "The fact that the pirates are from Somalia doesn't make them state actors. They are doing this for private gain."

This is far more complicated. Although the US was never a signatory to it, The Declaration of Paris of 1856 outlawed letters of marque and reprisals. What "stable" court system outside of the US would agree to try humans who had been captured in an act that contravened International Law?

Ron Paul's YouTube Press Release: Ron Paul on Marque and Reprisal 4/12/09, offers a glimpse of Paul in his stride. He first offers a bit of revisionary history stating that Sudanese piracy "moved over" from where it began in Indonesia and Malaysia. The IMB Live Piracy Map clearly shows that present sea piracy is far flung, and although there are many incidents near the Southern Asian seas,and heavily concentrated near the Somalian coast, piratical acts are also occurring near Nigeria, and sporadically around the Caribbean Ocean. It did not "move" to these areas. Piracy is precipitated by groups indigenous to that geographical area. Then Paul went on to lecture about America's historical involvement with Somalia, again with his flair for revisionism, placing its beginnings at Clinton's feet, instead of it's actual point of origin, in an announcement by George H. W. Bush: Address on Somalia, December 4, 1992, where he described the military deployment as "God's work". In the video, Paul also intimates that letters of marque and reprisal authorize blowing pirates out of the water. This is a bit over the top. Letters of Marque and reprisals were grants to capture, not outright authorizations of full-scale war.

There are some acts that should always remain completely in the government's domain. Waging war is one of them. It is an unspeakably horrible thing to wage war, and doing it hands-off third party through contractors is mercenary in the word's worst connotations. It still places responsibility for all actions, lawful or unlawful, done by the private parties, at the feet of the Nation that contracted their services. They are official agents of the government that hired them. Is it wise to make the Rambos and Blackwaters of this world our official agents of war? Privately contracting war is an obscene act, that does not further liberty, and as such has no place within real libertarian theory.
4.16.2009 8:08am
Jon Roland (mail) (www):
Harry Eagar:

Inform the chiefs that they are responsible for the behavior of their clansmen and will be punished equally. Then hang a few.

That would mean invading against armed opposition. We tried that before, with unhappy results. So did the Ethiopians.

Also, it appears that there is a shortage of trees there that would support hanging. Carpet bombing is more feasible.
4.16.2009 8:20am
Jon Roland (mail) (www):
a knight:

Both H.R. 3076 and H.R. 3216 would have authorized the president to issue letters of marque and reprisal on his decision alone, yet this is clearly a Congressional Duty, falling under the power to declare war.

Yes, and I criticized him for that. The problem is that he takes his advice from Herb Titus who is an earnest but historically and theoretically challenged lawyer. He found the historical precedents of the congressional authorizations of the War of 1812 and accepted them as valid because they were done on Madison's watch. That was a mistake.

Letters of Marque and reprisals were grants to capture, not outright authorizations of full-scale war.

Not correct. They were warrants that could include destruction as well as capture, of assets or personnel. A directive to seize a terrorist or drug lord on foreign territory is a LOM&R. So is an order to assassinate one. But both are supposed to come from Congress directly, not delegated to the president or other executive.

There are some acts that should always remain completely in the government's domain. Waging war is one of them.

Which is why LOM&R need to be issued to government personnel instread of private parties. But they are needed for government personnel. Otherwise they, and the president if he orders them, are pirates under the law of nations, and their actions are violations of 18 USC Chap. 45.
4.16.2009 8:43am
Tracy Johnson (www):

Right now, some judge in Spain is deciding if he will indict the former President and Vice President of the US, and some staffers.



As of this morning, Spanish prosecutors have decided not to continue. Ironically thread-related, in the 1856 Declaration of Paris, Spain reserved the right to issue LOM's. (FWIW: The U.S. did sign onto the follow-on Hague Convention of 1907, in 1909.)
4.16.2009 10:02am
ReaderY:
I've tended to regard the clauses as giving Congress power both to engage in and to control a more general class of undeclared and "gray" conflicts, just as the First Amendment is not limited to paper but includes the internet. Arming non-governmental militia groups -- the CIA's support for the Afghan mugahedin in the 1980s and the anti-Taliban forces this decade would be examples of the power to work with non-governmental groups to engage in conflict without declaring war, making a treaty, or involving U.S. forces directly.

Outfitting privateers may be of benefit in the Somalia piracy conflict and the clauses would certainly cover them. I don't think they're that narrow.

In my view, the clauses give Congress a substantial amount of control over how these matters are executed. Congress can not only initiate the underlying actions, it can create rules and set conditions that limit the scope of the Executive's discretion. And it may have some authority to work directly with private parties entirely outside of the executive.
4.17.2009 1:41am
Gildas (mail):
"President Clinton invaded Somalia in 1993 with cause of effecting order; one Somali leader repelled the invasion, destroying a ranger company, and ejected US from Somalia."

1. President Bush (41) deployed troops to Somalia, to support a UN operation.
2. Months later, a Somali leader escaped an arrest attempt, during which -
3. The US lost some helicopters and some lives, however -
4. The Ranger company was in no way destroyed - it actually killed over a thousand Somalis as it successfully fought its way back out to safety, with the bodies of the Ranger dead.
5. President Clinton opted to withdraw from the country, because he was afraid people back home would not support a warlike response.

So, er, other than that you got it dead right.
4.17.2009 7:39am
Richard Aubrey (mail):
gildas.
If wishes were horses, cog would be riding pretty high, wouldn't he.
Also shows you what he wishes had happened.
4.17.2009 12:29pm

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