Article I, Section 8, Clause 10 of the U.S. Constitution authorizes the U.S. government to “define and punish Piracies and Felonies on the high Seas and Offences against the Law of Nations,” while Clause 11 authorizes the government to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning captures on Land and Water.”
Any idea that unites Elon Musk and the authors of the U.S. Constitution, along with Donald Trump Jr. and Senator Mike Lee of Utah, to name but a few proponents, deserves at least a moment’s careful consideration. Senator Lee outlines his proposal in the following terms:
Letters of Marque and Reprisal are government-issued commissions that authorize private citizens (privateers) to perform acts that would otherwise be considered piracy, like attacking enemy ships during wartime. Privateers are rewarded with a cut of the loot they bring home.
Going further, Lee notes that by issuing such letters, Congress could authorize “private security firms or specially trained civilians” to “intercept cartel operations, particularly those involving drug shipments or human trafficking across borders.” Conceptually, at least, this idea dovetails interestingly with President Trump’s designation of cartels and other criminal organizations as terrorist organizations under the Alien Enemies Act.
So what are we to make of this? The notion of “privateering” goes back centuries, harking back to a time when navies were themselves often largely part-time endeavors, and authorizing armed merchant vessels to conduct acts of war represented a logical means of extending naval force. The inclusion of this capability in the U.S. Constitution reflected this, representing a means through which a young country, one with a very small navy but a very large merchant fleet, could assert its maritime interests more effectively.
But by the middle of the 19th Century, the major naval powers, the United Kingdom and France, no longer saw value in such irregular forces, particularly to the extent that they might find themselves on the wrong end of what we would now call “asymmetric warfare” at sea. Naturally, they sought to ban it with the Paris Declaration of 1856, which effectively abolished privateering worldwide.
However, while the U. S. followed their lead by no longer commissioning privateers, it never formally accepted the provisions of the Paris Declaration. Legally, then, the U.S. retains the option of issuing Letters of Marque and Reprisal, as provided for in the Constitution.
After being effectively moribund for much of the 19th and all of the 20th centuries, the discussion of Letters of Marque and Reprisal re-emerged at the beginning of the 21st. Congressman Ron Paul revived the idea in the aftermath of the 9/11 attacks, going so far as to introduce legislation to enable the commissioning of private citizens to go after Osama bin Laden and any others associated with acts of “air piracy” and other similar terrorist actions. This went nowhere, but it was revived again in the context of dealing with the threat of Somali pirates, although, again, nothing came of it.
Still, the discussion continued, albeit largely within the esoteric confines of military journals, and focused more on promoting our own asymmetric warfare capabilities against adversaries such as China. And only a couple of years ago, Congressman Lance Gooden of Texas introduced supportive legislation in the context of going after the property of Russian oligarchs.
I’ve followed these discussions with more than passing interest for a number of years. Years ago I had some experience of the challenges facing a private sector security operative working in a terrorist environment. When I decided to write a novel loosely inspired by that experience, I found myself looking hard at how legal authorization might be found for my (fictional) private special operations team as it sought to destroy a Chinese bio-weapons lab. Fascinated by the possibilities, I made this a central element of the narrative and came up with “Letter of Reprisal” — which is also the title of the novel.
Now, as I finalize a Letter of Reprisal sequel, I look around and see that the whole concept has exploded. The new novel explores how Chinese, Russian, and Iranian actors might bend the drug cartels, human traffickers, and terrorists to the purpose of undermining the U.S. Now, as I listen to Senator Lee and others, I find that mine is no longer a largely isolated voice, particularly to the extent that the current discussion focuses on these self-same cartels, traffickers, and terrorists.
Many questions would have to be answered along the way to making teams akin to my fictional operatives an actual working reality. What, for example, would be the incentives? In my novels, the incentive is patriotic, fueled by a desire to take action while the government stands idle; this political tension is one of the major plot points in my stories. But this would become altogether easier in today’s environment, when, from President Trump on down, there is an eagerness to come to grips with the cartels.
Traditionally, privateers could also benefit from significant financial incentives. In 18th-century warfare, the goal was to seize enemy merchant ships and bring them — and their cargoes — to a friendly port where the ships and their contents could be auctioned for profit — sometimes huge profit. Having privateers seize a drug shipment and then market it is obviously a non-starter, but the government could well offer a system of rewards for drugs turned in. In effect, one could create a bounty system.
I suspect, however, that there are more than a few former special operators who would simply rally to the cause, quite willing to form up into teams and take action, so long as their reasonable expenses were covered. I know some good men (and women) who are tired of the endless overseas deployments but have never quite lost the desire to use their highly trained skills for a good patriotic purpose.
Regardless, at a time when we’re being asked to find new ways to deal with long-unresolved challenges — a time when we’re truly being encouraged to “think outside the box” — we shouldn’t dismiss Senator Lee’s proposal out of hand. If we are going to eradicate the drug cartels, if we are going to counter the terrorism with which they are inextricably linked, then every idea, old or new, should be on the table.
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James H. McGee retired in 2018 after nearly four decades as a national security and counter-terrorism professional, working primarily in the nuclear security field. Since retiring, he’s begun a second career as a thriller writer. His recent novel, Letter of Reprisal, tells the tale of a desperate mission to destroy a Chinese bioweapon facility hidden in the heart of the central African conflict region. A forthcoming sequel finds the Reprisal team fighting against terrorists who’ve infiltrated our southern border in a conspiracy that ranges across the globe. You can find Letter of Reprisal on Amazon in both Kindle and paperback editions, and on Kindle Unlimited.
