Sen. Mike Lee (R-Utah) wants to revive an ancient and honorable custom: grant Congress the authority to issue Letters of Marque that would allow U.S. citizens and others to legally interdict drug boats and other cartel-owned ships and property, to be sold off. At least some of the proceeds would go to the “privateers.”
The idea of giving Letters of Marque to employ private citizens to police the oceans isn’t new. As recently as Sept. 11, 2001, Rep. Ron Paul (R-Texas) introduced a bill to grant Letters of Marque that would have legally allowed American citizens to go after Osama Bin Laden and his assets.
During the Revolutionary War, the U.S. didn’t have much of a Navy. It was up to privateers operating with Letters of Marque, raiding British shipping and occasionally attacking British warships, to show the flag and gain much-needed hard currency for the American cause.
Reviving the custom would not be welcomed by our allies or enemies.
“Cartels have replaced corsairs in the modern era, but we can still give private American citizens and their businesses a stake in the fight against these murderous foreign criminals,” Lee, who is a member of the Senate Foreign Relations Committee, said. “The Cartel Marque and Reprisal Reauthorization Act will revive this historic practice to defend our shores and seize cartel assets.”
“Corsairs” were pirates operating near the Barbary Coast in North Africa in the early 19th century. They routinely stopped American ships, stole the cargo, and held Americans for ransom.
Congress can issue Letters of Marque, having been vested with the power in Article I, Section 8 of the U.S. Constitution. It gives Congress the power to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”
The Declaration of Paris in 1856 supposedly abolished “privateering” and Letters of Marque. It was signed by almost all the major seafaring powers except the United States. Does this mean the U.S. can hire privateers anyway?
There’s nothing in American law that would forbid the practice. While the U.S. could theoretically issue a letter, doing so would likely be seen as a violation of customary international law. “Customary” international law refers to the fact that, because the U.S. hasn’t issued any Letters of Marque for more than 200 years, we have tacitly acknowledged the legality of the law and are a de facto signatory to it.
China has a long history of engaging in irregular coercive activities, including harassing neighboring countries’ oil and gas exploration, fishing fleets, and replenishment of military installations.
Other nations might treat American privateers as pirates rather than lawful combatants, meaning they wouldn’t have the legal protections typically given to military prisoners of war. That’s only one headache Donald Trump would have if Congress went ahead and authorized the issuing of the letters.
Authorizing privateers would be a creative approach that “gives the president some constitutional power to go after bad people and not wait on Congress to give their permission,” Rep. Tim Burchett (R-Tennessee) told The Washington Post.“It’s just another tool in the box,” he said. “I think Trump’s the right one to activate it.”
Burchett introduced a version of the bill in the House in February. It is before the House Foreign Affairs Committee.
Before boat owners of Florida eager for a high-risk side hustle take to the seas, they should take heed: The bill would need to come to a vote, pass and be signed into law before any letter of marque could be issued.
I imagine the liability costs for the “privateers” would be sky high. What if they hit the wrong boat? Private citizens wouldn’t have quite the same access to intelligence and high-tech surveillance gear, meaning that mistakes would be almost guaranteed.
And what would be the cartels’ response? They would definitely upgrade their defenses, leading to bloody shootouts on the high seas and dead Americans. Not an ideal situation.
While the prospect of Congress issuing Letters of Marque feels like a great idea, looking at it from all sides, it’s probably more trouble than it’s worth.
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