sorry, lettres de marques are not allowed under international law roughly since mid-19th century and explicitly so for the US since the war with Spain. Binding, 'cause this abstention is a precondition for merchant to be unarmed (SOLAS, SUA, UNCLOS)…

Would you prefer that Obama killed them bilaterally? or multilaterally? And what would that mean? Obama taking out his gun and the American citizen agrees (bilateral agreement) or several people taking out their guns (what is actually happening - multilateral action). Or that the US should ask other states to join them in the killing spree (if you pertain to states).


What you are actually talking about is not a reprisal (meaning taking the ship's values/the ship itself to compensate formerly suffered economic loss) but a bounty and the people doing so are called bounty hunters.

Sounds good in theory. Xenon's last paragraph is what I thought when I first read it.

Also consider that Ron Paul raised this concern after 9/11 - the main man in that act has been killed. I don't think that means much, but it would be worth it if someone would see if he still favored such an act even though bin Laden is rightfully dead.

Correction.. he brought it up in 2009 too. My bad.

Even the letter of marque did not give one the right to kill citizens without due process. The captured parties were to be brought to court for fair trial. Now our own attorney general has stated that due process does not necessarily mean a trial, but rather an executive order alone is considered due process for a state execution. Since when? You ask me and this is some outrageous bullshit.

Weren't privateers primarily given letters of marque to allow them to prey upon enemy merchant shipping during times of war? And wasn't the idea was to allow the nation to swiftly mobilize a sort of navy during an era when the U.S. did not have a standing navy? I hardly think that chasing pirates would have been very lucrative for privateers.

Also, now that we have a massive standing navy it doesn't seem like privateers are really needed. Perhaps we should go back to that kind of system - I believe that Ron Paul was arguing for using privateers so that the U.S. could decrease the size of its navy.

Empirically, it is hard to find the difference between privateer and pirate - in analogy to the terrorist-freedom fighter conundrum: one's privateers are the other's pirates ;)

@FG: you are mostly right. When lettres de marque came into being, the "Navies" barely existed. The general approach was to give out LdMs in two instances: if a merchant vessel was harmed by some other nation, one could make a claim and get an LdM EQUIVALENT to the damage. When a ship has been brought up, it had to be conducted to a port, where then the reprise trial took place. The second LdM was handed out in cases of war and were valid only during this time. The profit taken from this enterprise served as compensation for the advances (ship, crew, time, gun, food, etc.) by the privateer. A great part (around 20-30%) of the early trade conducted by the American colonies involved LdM-ships.

@bohonk: The famous Captain Kydd actually got his LdM to chase pirates in the Indian Ocean. In the end he got hanged not on account of piracy but for killing his First Mate without due process.

Letters of marque have the slight problem of being against at least customary international law. The government's new claim of being able to kill Americans at their discretion is easily the most troubling civil liberties erosion in recent times (and that's saying something), but resurrecting this 18th century constitutional relic relic isn't the answer.

I was talking about using the concept of letters of marque and reprisal to take out terrorists on land with congressional approval, which would be less "bullshit" than Obama doing it unilaterally.

Legally, it's just as absurd. And is a private mercenary drone killing Americans without due process really much better anyway?

With congressional approval, yes.

Nonsense.

why so? and then again, look the meaning of "unilateral" up. It is not at all what you are tying to say with it. also, the separation of powers exists for some reason… I can't see why one assembly (congress) should be better then another (president) a priori. both were elected by people and a majority is needed both cases.

I have a problem with the president killing Americans without congressional approval or due process of the law. The least he could do is include Congress to legitimize the process.

I'm confused why are some clause in the constitution written by the most enlightened men in history which can never ever ever be changed and even debate about change is dismissed, and other clauses can be dismissed as an 'old power' that should now be ratified by men of our time who presumably aren't so enlightened. If someone could explain the difference, I'd be obliged.

Posting in the wrong thread. Needs to stop.

I finally got it .... better late than never I suppose :-)

"I have a problem with the president killing Americans without congressional approval or due process of the law. The least he could do is include Congress to legitimize the process."

The president killing someone with Congressional approval but without due process is effectively a bill of attainder, something EXPLICITLY prohibited by the Constitution.


I'm not necessarily against lobbing drone-fired missiles at known terrorists. While it's been a gross violation of Pakistan and Yemen's sovereignty and the precedent could come back to bite us someday, the country is safer because these lunatic Islamists are dead. However, the government goes too far in claiming the authority to be able to decide on an American's guiltiness and then summarily execute them.

It might be limited to piece of shit terrorist fellow-travelers now, but who's to say what the future may bring with this precedent? Maybe a future president will allow drone strikes on cartel leaders in the United States and Mexico. They certainly pose a real threat to the country. And if you can do it for them, why not other serious criminals? And who's to say that drones will always be big planes flying around? They are already being miniaturized, it's just a matter of time till someone sticks a gun on a little one. And why would drones even need to fly? Ones on wheels or on legs could be moving around America's cities executing people deemed criminals.

This may sound like sci-fi paranoia, and it probably is. But the point is that once you start bending the rules on something as fundamental to freedom as due process you can't predict how that decision may be used down the line. Even if you trust and love Obama, would you really want President Rand Paul with this power? Or President Chelsea Clinton?

@ Maniac

That's why I favor a strict interpretation of the Constitution. No one should have the power to ignore parts of the document, even the archaic parts. The Amendment process isn't talked about enough. Instead of the whole "living document" bullshit, use the amendment process.

@ Invictus

I am well aware that the Constitution prohibits bills of attainder. A Letter of Reprisal for a terrorist (possibly with a DoA clause) *would* be a de facto bill of attainder, but still constitutional.

That's why I favor reintroducing the use of the Letters of Marque and Reprisal power so that Congress is involved, instead of President Obama blowing people up without trial, which as you pointed out is setting a very, very bad precedent.

We need to continue these drone hits but Congress needs to be involved.

"No one should have the power to ignore parts of the document, even the archaic parts"

They should still be there; they should simply be amended to fit the world we live in. How do you think this document will function in 500 years? The answer: it won't.

"The Amendment process isn't talked about enough."

That's completely true... however, would you rather us amend the Constitution or interpret it differently? What do you think we ought to do there? That really is a contradiction of a strict interpretation in saying that the document should never be ignored - i.e changed to fit the times.

I not only think killing Americans as "terrorists" is wrong and dangerous, I think imprisoning an American citizen without due process is a gross violation. of our civil liberties. I don't give a fuck if you screamed "For Allah" as you launched a missile at an airliner, if you are an American citizen you still have a right to due process which includes a *timely* trial, not to be put in Gitmo for years and years.

I wonder if you'd be so gung-ho for that policy when Democrats inevitably get another turn with unified government.

That's for Gunfighter06.

@ xenon - thanks for filling in some information. My knowledge of the subject is probably spotty at best.

My memory is that Ron Paul brought up letters of marque in 2009 as a possible response to piracy in the horn of Africa. I was intrigued by the idea - I'm all for a smaller standing army/navy - but I had serious doubts about whether chasing Somali pirates would really be profitable enough to attract privateers. Anyone else have any thoughts about that?

@ bo_sox48

"How do you think this document will function in 500 years? The answer: it won't."

It has functioned for well over 200 years. I would argue that it will continue to function in 500 years, and function better than most other government documents. The principles outlined in the Constitution are timeless.

"That's completely true... however, would you rather us amend the Constitution or interpret it differently?"

Easy question. Amend it if you want to change it or don't like what it says. My problem with a "living document" stance is that there is the big question of who gets to decide *how* it should be interpreted. The Supreme Court? No, the court can be stacked and politicized. Everyone has a different interpretation of the document, so the only fair thing to do is to interpret it literally as much as possible, since the literal meaning is rarely disputed.

@ Draugnar

These people have to be taken out some way. If you had to choose between the president having the power to kill them without any sort of oversight or having Congress issue a Letter of Reprisal, which would you choose?

@ Invictus

"I wonder if you'd be so gung-ho for that policy when Democrats inevitably get another turn with unified government."

If they wanted to do it, I would have no constitutional grounds for criticizing them.

For someone who claims to be so in favor of a literal interpretation of the Constitution you seem very comfortable with the government issuing de facto bills of attainder against American citizens. Again, if the government can summarily execute terrorists then why not members of drug cartels? More people die in drug violence in Mexico than in Afghanistan. The idea that the mess there could seriously spill over into the United States isn't too far fetched.

No matter how much you want it to be so, terrorism is not piracy and letters of marque are inappropriate to deal with the problem, even if they weren't an outmoded concept and didn't violate modern customary international law.

Again, I think drone strikes against terrorists are necessary, to an extent. But this issue has such a huge and scary potential for abuse that it needs to be controlled much more than it currently is. I'm not really sure what form that ought to take, but I do know it shouldn't resurrect some clause in the Constitution that hasn't been used since the War of 1812 and was intended to fight pirates and an enemy state's shipping.

"These people have to be taken out some way."

If you can kill, them, you can attempt to arrest them. It's called due process. Drone strikes against American citizen's are wrong. Go in with a special forces unit (SEALs, Force Recon, Rangers, whoever) and try to take them alive. If they resist and die in the ensuing combat, so be it. But *not* drones. They are American citizens and should be brought to justice using due process. American citizens should *never* be treated the same as enemies of a foreign nationality. The moment we start doing that, even on foreign soil, we open ourselves up to a police state on American soil where anyone within our borders suspected of being involved in terrorism is either assassinated or sent to Gitmo without due process.

Bad apostrophe... Sorry about that.

"It has functioned for well over 200 years."

Yes, the majority of it has. However, not all of it has. As parts begin to fade from view little by little, what do you want to do, simply remind us of our past by leaving them in our Constitution? Why would I want to board soldiers in my house? What purpose does it serve? None. That's where it's either interpreted in saying that a homeless veteran can't stay in my house. Sounds obvious, but by your words, in a time of war - which we technically aren't in right now - a soldier could require that I house him no matter what the situation. How reasonable is that? That's a literal interpretation. That's when you change it or look at it from the framers' point of view rather than as words on a paper.

Actually, the third amendment does *not* give permission for a soldier to demand to be quartered. It gives permission to congress to make a law that would do that, but it actually says:

"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war,"

It then goes on to provide an exception to requiring the Owner's consent:
"but in a manner to be prescribed by law."

So it does not give permission for a soldier to demand you grant him quartering *ever*. And right now, there is no law on the books that, even in a time of war, would allow the soldier to make that demand. Period.

Learn your constitution and you won't make a fool of yourself.

@ Invictus

"For someone who claims to be so in favor of a literal interpretation of the Constitution you seem very comfortable with the government issuing de facto bills of attainder against American citizens."

I would be *more* comfortable with that than the idea that Obama could blow up my house at any time without justification.

"No matter how much you want it to be so, terrorism is not piracy and letters of marque are inappropriate to deal with the problem, even if they weren't an outmoded concept and didn't violate modern customary international law."

It's an interesting concept; you have to admit that. Pirates were not able to be combated with traditional military force, so they legitimized privateering to deal with the problem. Maybe mercenaries would be better equipped to deal with terrorists. I don't think anyone is going to get pissed at us for violating either the The 1856 Declaration of Paris or the 1907 Hague Convention.

"I'm not really sure what form that ought to take, but I do know it shouldn't resurrect some clause in the Constitution that hasn't been used since the War of 1812 and was intended to fight pirates and an enemy state's shipping."

You're probably right, but you have to admit that it is an interesting idea.

@gunfighter: you are wrong in several points:

1) If the constitution is to be taken literally, than a de facto BoA is a violation, no matter how much you'd like it or not.

2) The literal meaning is rarely self-evident. That's where the "living constitution" theory originates from. (And of course the heavy hurdles on amending it)

3) Not piracy induced privateering or LdMs, but vice versa. Privateers are a means of war. Just like a militia. With the exception, that privateers can also get economical benefit from their actions - in difference to a militia, which would then become a gang of bandits or marauders. "Pirates" are those doing the same as privateers just without a valid LdM. And this the reason why it would not work in the case piracy off the Horn. There is no private benefit to be taken and no one to reprise against. Classic pirates were merchant ships that robbed - and so rather all vessels were potential pirates and targets. Somali pirates are no merchant vessels accumulating wealth but small speed boats that kidnap large merchant vessels conduct them to a port and wait for the ransom. Where does in your opinion enter here the concept of prize, war or goods that made the privateer industry work? And for your terrorists, this is called a bounty and people chasing them are called bounty hunters. And this system has to my knowledge been abandoned because it often violated due process rights. But please think straight about what you are talking, esp. when you prefer to take your constitution seriously or even literally.

Also, everybody will get pissed, if you were to reintroduce privateers. privateering is a crime in most states that have laws on navigation, actually one of the most serious crimes. A LdM by the US would not be accepted - as little as other legal concepts. They won't go to war with the US but sack and capture the privateers non the less. Outside of the US, no one cares about the US constitution. A right that one state bestows itself is not equivalent to a right bestowed by international law.

And for starters, criminal offenses are to be dealt with through the judiciary system (that's what it's for, basically) according to the constitution. The legislature should establish the legal basis (what constitutes a crime, what punishments are acceptable, etc.) and the executive should provide the means for doing so. That is the general idea called "separation of powers". To this you can add the system of checks and balances, which was designed to hamper single elements running wild (within their area of jurisdiction) and so to cross-control them.

I don't understand how you can be more comfortable with Obama and Reid and Boehner blowing up your house than just Obama doing it.


Dude, this is a terrible idea. More oversight is necessary, but not like this. Call me a bleeding heart lib, but I don't like the idea of the government being able to kill Americans at a whim. I don't even like the drone strikes too much, even though they're necessary to a degree. With Iran now saying they're able to reverse-engineer drones based on the one that crashed a year or so ago I think we've opened ourselves up for a lot of trouble with this policy.

@ Invictus

Because instead of just 1 person signing off on blowing someone up, 268 people have to sign off on it.

If you can come up with another idea for oversight I'd like to hear it.

@ X3n0n

Back in the bad old days, Letters of Marque and Reprisal were issued to privateers as a counter to foreign naval interference and pirates. What if this concept was expanded to land use against terrorists instead of pirates? Yes, other countries don't care about the American constitution but they equally don't care about the rights of terrorists.

@gunfighter:
You are both right and wrong: When LdM came into being (13th century) there was no distinction between merchant/pirate/naval vessels. Ship owners owned ships pretty much as feudal lords owned their feuds. LdM were just some special privileges and duties by some central/administrative power. The primary difference was that a feud is immobile while a ship is mobile, leading to the proliferation of LdM, ship holding several LdM by different countries or different claims. Second, many LdMs were handed out ex-post. Third, the primary focus of privateers was not to capture pirates (actually that was what the navies did, when they came into being) but to disrupt and divert the trade of other countries/colonies/companies AND this justified on the basis of some damage suffered for which the reprisal was the compensation (the most simple case of action/claim in Int. Law). The whole problem with this approach was that a privateer was to remain profitable always both merchant and warship. Just as an knight tended to be farmer and fighter. And as you should know the combination of means of violence (esp. legitimate) and trade is always dangerous. The very moment, states acquired the capacity to build up standing navies they broke the monopoly of the warrior-trading companies (EIC,VOC) and outlawed privateering, which subsisted some times as guerre de course but even that was ended in order to keep the trade stable.

I can't see a) how you would extend this concept to the chase of terrorists and b) how this would fit into any literal or even free interpretation of the constitution.

Again, what you are looking for are bounty hunters. Or marauders. Depending on how they are supposed to finance themselves.

Another idea for oversight? Well, if we really have to have these attacks then put them under the purview of something similar to the Foreign Intelligence Surveillance Court. That way you have, you know, judges determining guilt rather than politicians or glorified mercenaries.

We already have an alternate means of oversight. Criminals on the lam can be charged, tried, and convicted in abstentia. If convicted of terrorism/treason, the sentence can be death. Should that verdict and sentence come out of a federal court (not military tribunal as US citizens should *never* be held accountable in a military tribunal unless currently in the service), then the sentence can be carried out by drone. If they are sentenced to life, then collecting them with a special ops team is in line and if they should resist and be killed, then they are no different than any other criminal killed while resisting arrest with lethal force.