Waging war is a very serious matter. Commendably, U. S. Presidents and Congress are very reluctant to authorize the use of the Armed Forces of the United States. And yet, the U.S. has enemies, and often the national interest requires the use of military force short of a formal declaration of war. Readers can insert here a contemporary hot spot of choice e.g., Iraq, Venezuela.
Fortunately, the Founding Fathers, with uncanny prescience, anticipated that there would be times when it would be necessary to enact retribution without engaging in a costly and expansive war. In Article I, Section 8, the Constitution provides the following powers to Congress: “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Essentially, a letter of marque and reprisal is a government license that authorizes a private entity to cross international borders to take some action in retaliation against an attack or injury.
Up to the 19th century, being granted a letter of marque was considered an honor that combined patriotism and financial gains. Today, we often think pejoratively of the mercenaries engaged in such activities. Nonetheless, there are numerous large and powerful private military companies for hire worldwide. These companies are mostly staffed by elite former Special Forces personnel. For example, in the U.S., Academi, and G4S are just two of the largest, in the U. K., Aegis Defence Services, and Control Risks are major firms. There are also large Australian, Russian, and South African private military companies.
Procedurally, Congress authorizes, and the President signs, a letter of marque authorizing a private entity to carry our military operations for a specific purpose, and for a limited time. The recipient of the letter tenders a bond committing to strict observance of national and international laws and customs, and agreeing to be prosecuted for violations. There is always the potential for abuse. However, politically and practically, it is easier to hold accountable a private entity than to hold accountable the U.S. Armed Forces.
The last time the United States issued a letter of marque was in 1815, during the Second Barbary War, when President James Madison authorized brig Grand Turk to cruise against “Algerine vessels, public or private, goods and effects, of or belonging to the Dey of Algiers.” In South America, Bolivia, lacking a navy, issued letters of marque to any vessels willing to fight for Bolivia at the beginning of the War of the Pacific in 1879.
In 2001, after the September 11 attacks, Congressman Ron Paul introduced legislature to grant the President the authority to use letters of marque and reprisal against specific terrorists rather than waging war against a foreign state. He also advocated for the use of letters of marque to deal with the Somali pirates in the Gulf of Aden. Congressman Paul argued that letters of marque would produce motivation for locals to act, thus making involvement of the U.S. Armed Forces unnecessary. Unfortunately, the Congressman’s proposals were not enacted.
President Trump, and President Obama before him, have articulated a reluctance to commit U.S. ground forces to conflicts that may fall short of a definitive and imminent threat to our national security. U.S boots on the ground is a politically charged condition to be avoided. On the other hand, inaction is not the best foreign policy approach for a powerful nation with international responsibilities. Bringing back a modern version of letters of marque would be a helpful new tool for the conduct of U.S. foreign policy. It is a fully constitutional option that keeps our troops at home, while still allowing for forceful military action when necessary.
When diplomacy is exhausted, and military action is called for, Congress and the President need more than the two binary options of, either a formal declaration of war, or inaction. Currently, covert actions, or executive orders of questionable constitutionality, are the Presidential alternatives. But neither may be adequate in some cases. So, why not bring back letters of marque? The Founding Fathers wrote them into the Constitution for good reason.