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Friday, February 10, 2012

READER'S POST #10 - An Indefinite War Needs a Definite Solution: Swashbuckling Somali Pirates and Al-Qaeda

By: Publius

Since the tragedies of September 11th, the United States has taken massive military action abroad in the name of fighting the undeclared War on Terror.  The War on Terror has led U.S. forces to occupy and nation build both Iraq and Afghanistan at a cost of insurmountable treasure and more American military lives lost than in the attacks of September 11th.  Civil liberties have decreased while the government’s power has increased.  Will this War on Terror ever end? Not without serious political changes in the Middle East.  Should the U.S. send standing armies to chase down bands of thugs? Never.  Is there a solution to reducing terrorist attacks and returning liberties? Yes; and it is right in our Constitution.

Under Article I – Section 8 of the Constitution, the U.S. Congress has the ability to issue Letters of Marque and Reprisal; this power is the solution to the War on Terror.  A Letter of Marque and Reprisal is a government issued license for piracy and capture, under the flag of the Unite States, which allows private individuals to hunt criminals on the condition that any “booty” captured would be legally split between the privateer and the state.  To understand the Letter of Marque’s use I will briefly show how they have famously been used in history.

Perhaps the most famous Letter of Marque was given to Sir Walter Raleigh by Queen Elizabeth in the late 16th century so that he could legally pirate both Spanish ships and pirate ships.  After posting bond with the English Crown, Raleigh went on to the New World to terrorize and plunder ships flying a flag of a public enemy.  To make a long story short, Raleigh made a fortune for both himself and his country while helping to eliminate threats to the state and was extolled as a national hero.  The same model can be used in the U.S. for both Somali pirates and terrorists.

I propose that the use of privateering, via the Letter of Marque, would go a long way in the War on Terror.  Privateers will be much better at tracking down terrorists in other countries because they will have greater stealth than a military presence (be able to go incognito or hire locals), can act with agility (adapt tools and tactics with little red tape/paying off locals for information more easily), will not use unnecessary force (for fear of penalties, forfeitures, and other loss of capital), and will create U.S. jobs and industries to support this effort.  Moreover, the U.S. will be getting rid of its enemies while profiting financially.  The only downside is that privateers will inevitably make mistakes and cause diplomatic tensions with the United States.  Despite that negativity, the pros do indeed outweigh the cons. 

The pros of privateering for terrorism are easily recognized because privateers are not bound to any traditional enforcement model.  They do not have to trudge around massive armies with supply lines looking for a bunch of criminal thugs.  Privateers can act as spies, special forces, and gumshoes all at once achieving that special blend of precision offensiveness with good old fashion police style investigation.  They will have the ability to execute the equivalent of a S.W.A.T. style arrest warrant, fight as paramilitaries for bigger targets, and establish local informant rings fueled by payoffs which don’t have to be approved by an unending chain of command.  Privateers will have access not only to the capture awards of the United States but a portion of the value of any confiscated weaponry, goods, currency, or seized accounts.  They could be forfeit these funds upon unnecessary force or any condition, set forth by Congress, with a natural check and balance built into enforcement (lifetime appointed federal judges wanting to strictly enforce penalties to get more money for the state while being careful to not kill the industry).  Indeed, there needs to be a way of proper enforcement of both human rights and of criminal terrorists.

Because terrorists are more analogous to criminals than standing armies, a constant police force is needed to monitor these criminal activities.  As the United States has seen, total occupation of a country harboring terrorists has not solved the problem.  Since standing armies are expensive and problematic, an income-producing privateering scheme would create a police force to remain in target countries indefinitely.  The idea being that as long as there are terrorists there is profit.  At that point, the only way a terrorist could win a war against privateers would be to make the market on that organizations side.  Since terrorists need significant sums of money to survive, as long as that money is up for bounty the terrorists will not be safe unless they defund.  Defunding will lead to international security (less money for those expensive attacks and recruitment) and ultimate disbandment.  From here on out the reader can ponder all the different ways a privateer could make a buck from selling Uncle Sam information to legally splitting the proceeds from a large terrorist linked drug bust abroad with him.   

The cons, isolated to diplomacy, of issuing Letters of Marque are twofold, one being the general international distaste of “pirates for hire” or mercenaries and the other being uses of unjustified force or mistaken identity.  The international distaste of mercenaries will cause international commotion at first but will also spark interest because many countries are broke and will be interested in the income gained from privateering.  I think these countries will speak daggers but use none to this end.  This clamor for reform could also be mitigated if privateering was first introduced to combat Somali pirates, because privateers have historically been the nemesis of pirates making their action nostalgic and more palatable, and then effectuated fully with a transition to terrorists.  Such a two-step process will let the U.S. both experiment and refine tactics/laws while letting other countries warm up and possibly mimic this model.  All other diplomatic cons stemming from mishaps will just have to be tolerated by the international community and this tolerance is dependent on national diplomacy and foreign interest/mimicry with mishaps being disincentivized by the diametrically opposed, yet counterbalanced, interests of the state and the privateers as previously mentioned.

The fact that Letters of Marque are explicitly mentioned in the U.S. Constitution meant that the framers explicitly wanted our government to have this power. The fact that the language “Letters of Marque and Reprisal” is right next to Congress’s power to declare war means that the framers saw these two powers as useful in different ways; that privateers were to be used against some enemies for which a declaration of war would be tantamount to tilting at windmills. That a Letter of Marque is better used to fight a certain type of enemy than an army or navy.  The framers of the United States government knew then, as we should know now, that some wars need different tools to win.  Privateering turns terrorists and pirates into resources with a market structured to reward those who can get those resources the fastest; think Hungry Hungry Hippos.  Perhaps an endless war can be won if we use the invisible hand as a fist?

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  1. I like it! Can we take it a step further: Can we use Letters of Marque to fight online piracy instead of SOPA. Go two for two man!

    Ron Paul 2012

  2. Ron Paul - Providing 1812's solutions to the problems of 2012.

    Get real. Keep spouting this outdated junk. I mean, come on, who would do this?

    OBAMA 2012

  3. every liberty loving american needs to see this. you are a patriot mr. publius. i know what i will be talking about at work today. thank you for writing about this.

    YES! RON PAUL 2012

  4. This post is spot-on brilliant!


    1. It really is. Gives position, thesis, body (even argues potential pros and cons, shows the author is not just one-sided) and defends it well. I've been reading this blog since November and it is big on getting people to be loudmouth elephants instead of liberal airheads. What does that mean? It means that if you have a position you intelligently articulate it with reasons and facts. Publius does that to a "T." The liberal way is to just spout chants with no backing. The most important thing is that this should be spread, emailed and seen. Americans need to understand how these wars are killing us and drowning us in debt while taking away our liberties. Go Publius!

    2. jim you got me scratching my head on this brother. you think this post is spot-on brilliant and it is obviously in support of ron paul since he always talks about article 1 section 8 and yet you are voting for rick santorum who will force his religious ideology on the us which violates the constitution. please explain sir

  5. Very well-written and interesting. Well done.

  6. Below is the language of the Indefinite Detention Act. I would like to point out that section (C)(1) allows indefinite detention until the "end of hostilities."

    Although this law would make sense if Congress has declared war against a country who could end hostilities via treaty or resolution, there is no enemy governing body which the U.S. could meaningfully force a complete surrender and then exchange POWs (In the 20th century, no declared war has involved the U.S. for longer than 4 years, we tend to win wars quick). Because the War on Terror is analogous to the War on Drugs or a War on Pirates, where the enemy consists of bands of criminals, I challenge the readers to predict what the "end of hostilities" will look like and when it will occur. If indefinite detention was used in fighting the War on Drugs, we would have millions of people indefinitely detained since the 1970's to this day (the 1930's if you count Anslinger's racially charged "Reefer Madness").

    Wars are a great tool to defeat a standing army, not policing organized crime. The loss of liberty indefinitely, stemming from the War on Terror as seen by the NDAA, is reason enough to show that a traditional war model is more outdated and less effective than Letters of Marque and Reprisal. We must remember that Letters of Marque emerged at a time when the traditional war model was indeed already ancient yet recognized as ineffective for certain hostilities.

    Perhaps the use of Letters of Marque are not the optimal solution for fighting the War on Terror. Perhaps a newer model, tailored to this new enemy, must be forged. I merely propose that Letters of Marque are better than belligerence with armies and navies for fighting unconventional enemies and without the loss of liberty.

    Finally, it is true that Dr. Paul has lead the discussion in reviving the Letter of Marque; however to brush the idea aside because of political affiliation is a knavish action. The U.S. has had a long tradition of enlightened and rational discourse for which every person owes their allegiance, not to their party, but to their country and conscious alike. Indeed, democracy demands this personal responsibility as elucidated when Cassius contemplated Caesar's tyranny, "Men at some time are masters of their fates: The fault, dear Brutus, is not in our stars, But in ourselves." (The Tragedy of Julius Caesar: Act I Sc. ii).


      (a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

      (b) COVERED PERSONS.—A covered person under this section is any person as follows:

      (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

      (2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

      (c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following:

      (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

      (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84)).

      (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

      (4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

    2. Got it. BUt what does it have to do with what you wrote (which was pretty good by the way)

    3. I submitted the Act with commentary to show readers that the wartime custom of indefinite detention does not make sense in fighting the War on Terror because wartime detention of POW's ceases with the end of hostilities. Since the "end of hostilities" for the War on Terror cannot be achieved with a treaty or surrender of all terrorists (past/present/future), the loss of liberty and due process will likewise continue indefinitely. Is this not evidence enough that the Letters of Marque model for crime fighting is superior to a war model? That the trade of liberty to aid the U.S. in winning a war is only suited to declared wars for which the U.S. can definitively win.

      Wars can be won but a victory which encompasses the total elimination of particular kind of crime can not be achieved. Murder, rape, and drug trafficking have all been ills of the United States but the war model is ill suited to combat these ills. Rather, crime-stoppers, posted rewards, and Qui-Tam actions (Qui Tam being the equivalent of Letters of Marque within U.S. borders) have been quite successful for crime fighting.

      The immense cost of blood, treasure, and liberty (as shown by the Act) associated with the War on Terror have all been for little under the traditional war model. The language of the Act shows readers a codified version of the Laws of War so they can ruminate upon how the traditional war model is to operate and how it is deficient for fighting this war against criminals. My argument lies in showing readers the attractiveness of Letters of Marque compared to the traditional war model, codified by the act. That the evils of diminished liberty are contingent upon the end of hostilities and since there can be no end to crime, an international police force must be in place to pester, capture, and defund these groups. To this end, a privatized police force under the Letter of Marque driven by financial incentives can blunder the efforts of terrorists in a meaningful way with little cost to the general public.