Privateers: Now More Than Ever

sea, land, space, and cyberspace - the time is ripe

Most of the time when we in the navalist arena bring up privateering, there is a bit of snickering…but not always.

The usual reply guys will tell you, “That isn’t legal anymore…” and then drone on about themselves.

Well, if the Congressional Research Service (CRS) expended some effort to look into the topic, let’s honor their efforts with a review.

First, let’s start with Ref. A:

Article I, Section 8, Clause 11 of the U.S. Constitution

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

…

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

The CRS report comes in two parts.

• Letters of Marque and Reprisal (Part 1): Introduction and Historical Context

• Letters of Marque and Reprisal (Part 2): Drafting History and U.S. Practice

Part 1 gives the historical context, but most of my pull quotes will come from Part 2. This is the exception. From Part 1:

Letters of marque and reprisal were once common tools for countries with small naval forces to augment their militaries by drawing upon the strength of their private merchant vessels. As a young country, the United States used the instruments with success in several early conflicts, including the Revolutionary War and the War of 1812. Over the course of the 19th century, however, commissioning private parties to use armed force fell out of favor in domestic and international practice, and Congress has not authorized a President to issue the instruments since the Civil War.

At the time of the Constitution’s drafting, privateering was best seen as commerce raiding. The goal was not to sink and destroy, though that happened; the goal was to capture and prevent access to commodities by your enemy that your regular forces (navy) either did not have the resources to go after, or had a higher-and-better use for the naval assets they had. The open seas were a prime location to interdict an enemy’s supplies, gold, and general commerce—and to take a merchant, often it takes a merchant.

In the 21st century, sure, we have lots of commerce on the high seas, but that isn’t where all commerce takes place. Cargo aircraft carry everything from computers to cocaine. Even more so, in the cyber realm there is data, bank accounts, and cryptocurrency accounts.

There’s a lot more out there that smart, aggressive, sneaky, and yes—greedy—civilians might be interested in.

But…there are a few barriers besides ossified minds.

By the latter half of the 19th century, the practice of privateering faded. Commissioning of private parties to use military force increasingly fell out of favor in international practice, and nearly all major European powers renounced the practice. In an 1856 international peace conference, a group of prominent maritime nations issued a declaration, known as the Declaration of Paris, providing that “privateering is and remains abolished.” Critics of privateering cited its negative impact on global trade and humanitarian concerns with privateers’ methods. As one 19th century American commentator on admiralty law stated, privateering was “liable to gross abuses” and “encourage[d] a spirit of lawless depredation” and plundering.

Harumph. Victorian-era Eurotrash ideas that, luckily, a lesser-known President rejected:

Some U.S. officials also expressed these critiques, but President Franklin Pierce declined to sign the Declaration of Paris due to fears that abolishing privateering would provide a military advantage to European powers that had stronger navies and did not need to rely on private vessels to achieve maritime military goals.

So, if anyone—usually a European—brings up the Declaration of Paris, just remind them, “The USA is not a signatory to that declaration. ‘Murica!”

Although the United States did not renounce its legal right to engage in the practice, privateering largely faded as a strategic option in the late 19th century as a result of technological and policy developments, including a U.S. program to build a significantly larger and more advanced naval force. Developments in international practice and law also cast doubt on whether privateering remains compatible with international law. At the beginning of the 20th century, Congress removed the financial incentive for privateering by abolishing prize money in U.S. domestic law. Observers and Members of Congress have sometimes called for revitalization of the practice by issuing letters of marque and reprisal designed to address contemporary problems, such as responding to international acts of aggression, apprehending terrorists overseas, combatting modern piracy, and responding to cyberattacks, but no legislation authorizing the instruments has been passed since the 1860s.

The change in law took place in the seam between “The Gilded Age” and “The Progressive Era”. We are in a new era and should change the law.

Nothing is holding the USA back besides the USA.

Where in the 21st Century could Letters of Marque and Reprisal come in handy?

• Cartels and terrorists have bank accounts and cryptocurrency accounts? Huh. I am sure we can weaponize some autists to go after those. Take it to a Prize Court, and they can decide how to make it legally theirs. 38% for the government that gave them a letter of marque and they keep the rest?

• A fleet of boats smuggling weapons to the Houthis in the Gulf of Aden?

• A cartel head travels by private jet on a regular basis and some enterprising people find a way to divert it to a US jurisdiction? What reward is there for that?

Those are just the first three things that come to mind. There are more.

If privateering was good enough for the Father of our Country, it’s good enough for me.

At sea, in the air, in space, in cyberspace…yes. Let’s make privateering great again.

h/t Joshua.