As it becomes increasingly likely that Washington will be forced to make hard choices as to where and when to commit forces, an old solution to insufficient naval forces merits reconsideration. Congress should explore reviving letters of marque as a stopgap measure to counter nonstate or quasi-state actors in secondary theaters. Letters of marque could also be a valuable tool for countering China’s hybrid and unconventional activities worldwide, such as cyber espionage or illegal fishing fleets.
The power is right there in Article I, section 8, clause 11 of the United States Constitution: “[t]he Congress shall have Power to… grant Letters of Marque.” But what is a letter of marque?
Simply put, a letter of marque converts a pirate into a privateer. Historically, privateers harassed and plundered enemy merchants and other vessels, with the aim of securing compensation in the form of taking prizes—eating, if you will, from the kill.
In the famous Canadian folk song by Stan Rogers, “Barrett’s Privateers”, Elcid Barrett’s vessel, the Antelope, receives a “letter of marque…from the King” of Great Britain in 1778 and fails miserably in its effort to engage with a “bloody great Yankee” vessel “lay low down with gold.” Had the Antelope prevailed in its engagement; however, any recovered gold would have likely become Barrett’s property.
Nevertheless, in this century, proposals have been made that the United States re-enter the letters of marque game. Former deputy national security adviser Juan Zarate, among others, have advocated granting digital letters of marque for cyber actors. In the last session of Congress, Representative Lance Gooden filed legislation which would authorize the President to issue letters of marque to seize assets—such as yachts—from sanctioned Russian citizens.
Letters of marque offer a low-cost, flexible option to address lower priority and unconventional national security challenges, such as pirates or transnational drug cartels. This gap-filling mechanism might also prove valuable in the early days of great power war—buying time for the United States to properly scale up its conventional forces to meet the threat.
Several serious legal and political questions would need to be answered before letters of marque could be resurrected as a tool of U.S. policy:
1. Is the Letters of Marque Clause still valid?Although the United States did not affirm the Declaration of Paris, it plausibly constitutes customary international law that the United States has de facto acquiesced to by failing to issue letters of marque for so long. During the Civil War—after the United States declined to sign the Declaration—it appears that Congress did vest President Lincoln with the power to issue letters of marque, although he declined to exercise the power. Can such presidential abstention cause acquiescence to the Paris norm?
2. What is the role of the President regarding letters of marque? As noted by commenters such as William Young, letters of marque have particular value in allowing Congress to assert itself against a President unwilling to carry out a particularly aggressive policy. While historically letters of marque are commissioned by the President, nothing in the Constitution requires such executive discretion. Congress could certainly issue a letter of marque to a specific private contractor, limning the scope of the mission.
The Constitution provides that “[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it.”
Assuming that the Presentment Clause applies to letters of marque, what if Congress overrides a veto of a letter of marque issued to a specific contractor?
Upon the creation of the United States Air Force in 1947, a Department of Justice memorandum to Clark Clifford, special counsel to President Truman, argued that the President was Commander-in-Chief of the Air Force notwithstanding the Constitution’s proviso that “‘[t]he President shall be Commander in Chief of the Army and Navy of the United States’” because the “phrase ‘Army and Navy’ is used in the Constitution as a means of describing all the armed forces of the United States.”
Does the Army and Navy Clause work similarly for persons issued letters of marque? Could the President, as Commander-in-Chief, simply order a privateer to cease operations—notwithstanding Congress’s override of his veto?
And if so, does the Uniform Code of Military Justice apply to privateers?
3. What if an American privateer is treated as a pirate? Pirates are, famously, hostis humani generis—enemies of all mankind. Indeed, it is not inconceivable that an American privateer could be treated as a war criminal or become subject to an arrest warrant from the International Criminal Court (ICC).
While ICC detainment is obviously preferable to execution, such an arrest would trigger federal law which provides that “[t]he President is authorized to use all means necessary and appropriate to bring about the release of any…persons employed by or working on behalf of the United States Government” who are “being detained or imprisoned by, on behalf of, or at the request of the” ICC. The issuance of letters of marque, in other words, might end with American forces operating in The Hague.
These questions should, and must, be resolved before Washington is forced by the press of events—or the outbreak of hostilities—to decide what the Letters of Marque Clause means on the fly and in a panic.
Zac Morgan is an attorney specializing in First Amendment and campaign finance law. He previously worked for the Institute for Free Speech, and currently serves as counsel to Commissioner Allen Dickerson of the Federal Election Commission.
Ian A. Merritt serves in a Congressional office, where he focuses primarily on appropriations, defense, energy, and foreign affairs. He previously worked in the Department of Defense.
The views expressed above are those of the authors alone and do not necessarily reflect the views of any current or former employer, nor do they express an official view of the U.S. government.The views expressed in this piece are the sole opinions of the author and do not necessarily reflect those of the Center for Maritime Strategy or other institutions listed.
Center for Maritime Strategy
By Zac Morgan, Ian A. Merritt
For the first time in more than eight decades, the United States lacks sufficient military and naval forces to confidently secure its interests worldwide. As policymakers adjust to this reality, there is a growing recognition of the necessity for strategic prioritization and greater risk acceptance. Even with the Pentagon’s belated urgency and broad bipartisan support to prepare for the “Davidson Window”, our overstretched force structure and atrophied defense industrial base is simply not capable within this decade of overcoming China’s growing advantages in mass from ships to missiles. Meanwhile, our already inadequate munition and equipment stockpiles are being rapidly depleted in support of the ongoing wars in Ukraine and the Middle East.
As it becomes increasingly likely that Washington will be forced to make hard choices as to where and when to commit forces, an old solution to insufficient naval forces merits reconsideration. Congress should explore reviving letters of marque as a stopgap measure to counter nonstate or quasi-state actors in secondary theaters. Letters of marque could also be a valuable tool for countering China’s hybrid and unconventional activities worldwide, such as cyber espionage or illegal fishing fleets.
The power is right there in Article I, section 8, clause 11 of the United States Constitution: “[t]he Congress shall have Power to… grant Letters of Marque.” But what is a letter of marque?
Simply put, a letter of marque converts a pirate into a privateer. Historically, privateers harassed and plundered enemy merchants and other vessels, with the aim of securing compensation in the form of taking prizes—eating, if you will, from the kill.
In the famous Canadian folk song by Stan Rogers, “Barrett’s Privateers”, Elcid Barrett’s vessel, the Antelope, receives a “letter of marque…from the King” of Great Britain in 1778 and fails miserably in its effort to engage with a “bloody great Yankee” vessel “lay low down with gold.” Had the Antelope prevailed in its engagement; however, any recovered gold would have likely become Barrett’s property.
Despite the fact that privateering was critical to the American Revolution’s success and that “James Madison granted 500 of these letters to private citizens while president during the War of 1812”, the United States has not issued a letter of marque since the early nineteenth century. With the conclusion of the Crimean War, came the Paris Declaration Respecting Maritime Law. The Declaration flatly states that “[p]rivateering is, and remains, abolished.” The United States was invited to sign, but ultimately declined to do so.
Nevertheless, in this century, proposals have been made that the United States re-enter the letters of marque game. Former deputy national security adviser Juan Zarate, among others, have advocated granting digital letters of marque for cyber actors. In the last session of Congress, Representative Lance Gooden filed legislation which would authorize the President to issue letters of marque to seize assets—such as yachts—from sanctioned Russian citizens.
Over the last two decades, the United States Navy and allied navies have been forced to commit warships and aircraft to disparate missions around the world, including suppressing piracy, interdicting transnational smuggling, and enforcing sanctions regimes. It is growing harder to justify committing a limited, high-end resource like an Arleigh Burke-class destroyer (and its scarce munitions) to such lower priority assignments given how essential such assets are to deterring—and if need be, fighting—China and other peer competitors. . Meanwhile, 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.
Letters of marque offer a low-cost, flexible option to address lower priority and unconventional national security challenges, such as pirates or transnational drug cartels. This gap-filling mechanism might also prove valuable in the early days of great power war—buying time for the United States to properly scale up its conventional forces to meet the threat.
Several serious legal and political questions would need to be answered before letters of marque could be resurrected as a tool of U.S. policy:
1. Is the Letters of Marque Clause still valid? Although the United States did not affirm the Declaration of Paris, it plausibly constitutes customary international law that the United States has de facto acquiesced to by failing to issue letters of marque for so long. During the Civil War—after the United States declined to sign the Declaration—it appears that Congress did vest President Lincoln with the power to issue letters of marque, although he declined to exercise the power. Can such presidential abstention cause acquiescence to the Paris norm?
2. What is the role of the President regarding letters of marque? As noted by commenters such as William Young, letters of marque have particular value in allowing Congress to assert itself against a President unwilling to carry out a particularly aggressive policy. While historically letters of marque are commissioned by the President, nothing in the Constitution requires such executive discretion. Congress could certainly issue a letter of marque to a specific private contractor, limning the scope of the mission.
The Constitution provides that “[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it.”
Assuming that the Presentment Clause applies to letters of marque, what if Congress overrides a veto of a letter of marque issued to a specific contractor?
Upon the creation of the United States Air Force in 1947, a Department of Justice memorandum to Clark Clifford, special counsel to President Truman, argued that the President was Commander-in-Chief of the Air Force notwithstanding the Constitution’s proviso that “‘[t]he President shall be Commander in Chief of the Army and Navy of the United States’” because the “phrase ‘Army and Navy’ is used in the Constitution as a means of describing all the armed forces of the United States.”
Does the Army and Navy Clause work similarly for persons issued letters of marque? Could the President, as Commander-in-Chief, simply order a privateer to cease operations—notwithstanding Congress’s override of his veto?
And if so, does the Uniform Code of Military Justice apply to privateers?
3. What if an American privateer is treated as a pirate? Pirates are, famously, hostis humani generis—enemies of all mankind. Indeed, it is not inconceivable that an American privateer could be treated as a war criminal or become subject to an arrest warrant from the International Criminal Court (ICC).
While ICC detainment is obviously preferable to execution, such an arrest would trigger federal law which provides that “[t]he President is authorized to use all means necessary and appropriate to bring about the release of any…persons employed by or working on behalf of the United States Government” who are “being detained or imprisoned by, on behalf of, or at the request of the” ICC. The issuance of letters of marque, in other words, might end with American forces operating in The Hague.
These questions should, and must, be resolved before Washington is forced by the press of events—or the outbreak of hostilities—to decide what the Letters of Marque Clause means on the fly and in a panic.
Zac Morgan is an attorney specializing in First Amendment and campaign finance law. He previously worked for the Institute for Free Speech, and currently serves as counsel to Commissioner Allen Dickerson of the Federal Election Commission.
Ian A. Merritt serves in a Congressional office, where he focuses primarily on appropriations, defense, energy, and foreign affairs. He previously worked in the Department of Defense.
The views expressed above are those of the authors alone and do not necessarily reflect the views of any current or former employer, nor do they express an official view of the U.S. government. The views expressed in this piece are the sole opinions of the author and do not necessarily reflect those of the Center for Maritime Strategy or other institutions listed.