Calling All Constitutional Lawyers
Bill McGurn ·
Jun 17, 2010 at 6:48am
The other day Ursula posted about Gary Brooks Faulkner, the man who was recently found in Pakistan on a private mission -- he says from God -- to hunt down Bin Laden. The stories make clear he is a nutter, and everyone's had quite a few yuks.
But I'd like to ask the Ricochet community a more serious question, about the provision in our own Constitution for letters of marque and reprisal. As I understand it, these were usually navy oriented, mostly used to commission private ships to capture enemy ships. From what I can see, the last time Congress authorized one was back in the 19th century.
Given the complexities of the war on terror, does anyone think it could today it be a useful instrument today instead of a joke?
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Comments :
May '10
Re: Calling All Constitutional Lawyers
Surely we're already doing that. Much like the secret holding facilities that were supposed to provoke our outrage, I sort assume there's shady ops happening in the penumbrae on this matter as well. Heck, you can hire ex special forces guys of many nationalities to help with security. They're on Craigslist. Betcha can't swing a dead goat in a Waziri cantina (password: durka-durka) without hitting several freelancers.
We probably don't issue letters of marque any more for the same reason we don't declare war. Easier to keep things informal. Mainly, I'm just trying to keep my Burn Notice, Boba Fett and Dog the Bounty Hunter references straight.
Re: Calling All Constitutional Lawyers
Bill, let me do a warm-up act for Prof. Yoo, as we wait for the West Coast to come onstream. At the time of the founding, Letters of Marque and Reprisal were an instrument of international maritime law, allowing a state to commission a private party to seize property of an enemy state in retaliation for a specified wrong. Ron Paul has tried, without success, to get Congress to issue Letters for private persons to go after Bin Laden. The problems I see with using Letters are:
Re: Calling All Constitutional Lawyers
Good points. I think there was a case of a Confederate ship with such letters. Union side wanted to treat them as pirates but I believe was forced to back down and eventually recognize the legitimacy of the letters even though it did not recognize the legitimacy of the Confederate government.
Like to hear from John Yoo or Richard Epstein...
May '10
Re: Calling All Constitutional Lawyers
I suspect that if we issued letters to any party to even protect pleasure craft off the coast of Somalia from kidnapping by pirates we would be accused of violations of international law. De rigueur for any action related to defending any element of The Great Satan.
Re: Calling All Constitutional Lawyers
I couldn't even begin to address the constitutional issues here, of course, but I like the idea. My reasoning is simple: Private enterprises do most things a lot better than the government. Wherever possible, the government should therefore contract out. On matters as serious as this--or intelligence, on which (as the New York Times never ceases to remind us) we're already making extensive use of private firms--the oversight of such operations needs to be rigorous, the legal aspects, tightly buttoned down. But at the very least, I'm in complete sympathy with the impulse behind Bill's question.
May '10
Re: Calling All Constitutional Lawyers
People wanted to issue letters of marque to crush the Somali pirates, too.
Re: Calling All Constitutional Lawyers
Bill McGurn: Good points. I think there was a case of a Confederate ship with such letters. Union side wanted to treat them as pirates but I believe was forced to back down and eventually recognize the legitimacy of the letters even though it did not recognize the legitimacy of the Confederate government.
Like to hear from John Yoo or Richard Epstein... · Jun 17 at 8:45am
All that I know about letters of Marque and Reprisal is from Wikipedia, which reveals that Ron Paul sought to do this early on. The constitutional provisions do not preclude that authorization today, although it is clear that we have all the ambiguities of half-state rogue groups that do not present in my views serious difficulties here. But if we have the CIA, the private authorizations may be riskier given the want of control, but for the moment at least this looks more like the political question. There is, I think, no presidential power to go down this path without the Congressional authorization, which seems rather unlikely these days.
Re: Calling All Constitutional Lawyers
Letters of marque and reprisal could be an opportunity to outsource military action, though not with folks like Faulkner. They were permissions given by a nation to private shipowners to prey on enemy shipping -- the holders of letters would sometimes be known as privateers. Sort of like when the sheriff "deputizes" the reluctant barkeep in the old westerns, except in this case the barkeep isn't shy -- he wants to fight, because he gets to keep parts of the proceeds of the captured enemy ship. In exchange for fighting on behalf of the United States, a letter holder received the same protections under the laws of war as a member of the regular armed forces -- they would not be prosecuted for murder for attacking and killing the enemy. Letters used economic incentives to encourage private parties to fight on behalf of the country, and they cost little to the government.
Re: Calling All Constitutional Lawyers
Another point. Only Congress can authorize the use of letters of marque and reprisals, because they extend public authority to make war to private people (I've written elsewhere that the Constitution's clause has little to do with the fight between the Congress and President over covert action or fighting that falls short of war, as was once argued in the 1970s and 1980s). They might make sense as a matter of fighting the war on terrorism -- if Congress becomes convinced that the President and the executive branch are not waging the war as aggressively and creatively as they should they could use letters as a sort of form of venture capital to encourage entrepreneurs to try out new strategies and tactics against al Qaeda.