The Clipboard: Letters of Marque and Reprisal

From an article¹:

One alternative to U.S. military action against terrorists who have attacked the U.S. and other countries, and are threatening further attacks, is to enact Letters of Marque and Reprisal. Article I, Section 8, paragraph 11 of the U.S. Constitution authorizes Congress to "grant Letters of Marque and Reprisal, and make rules concerning captures on land and water." A "reprisal" means an action taken in return for some injury. A reprisal could be a seizing of property or guilty persons in retaliation for an attack and injury. It could include forced used against the perpetrators for the redress of grievances. A reprisal could even involve killing a terrorist who is threatening further harm and cannot be captured. (link)

Never heard of a "letter of marque and reprisal" before? Neither had I until I found it while browsing a "constitutionalist" site. I did some further research with Google and turned up this article that explains what a letter of marque and reprisal is and how it could be used against terrorists.

One of the major problems with the "war on terrorism" is that the government can't seem to decide whether it's a war or a police action. We talk about it and treat it in some ways like a war, but no war has been declared and, as with Guantanamo, we're not following the laws of war. Part of this is because there's no sovereign state as the enemy that can be the target of a war.

Basically, the letter of marque and reprisal is a way to take action against a non-governmental foreign group while still abiding by the Constitution. As such, I'm very interested in it!

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Complete text of the article, Letters of Marque and Reprisal, by Fred E. Foldvary

Many people disapprove of the U.S. war against terror, or of how it is being conducted. But what is the alternative, other than changes in U.S. foreign policy?

One alternative to U.S. military action against terrorists who have attacked the U.S. and other countries, and are threatening further attacks, is to enact Letters of Marque and Reprisal. Article I, Section 8, paragraph 11 of the U.S. Constitution authorizes Congress to "grant Letters of Marque and Reprisal, and make rules concerning captures on land and water." A "reprisal" means an action taken in return for some injury. A reprisal could be a seizing of property or guilty persons in retaliation for an attack and injury. It could include forced used against the perpetrators for the redress of grievances. A reprisal could even involve killing a terrorist who is threatening further harm and cannot be captured.

"Marque" is related to "marching" and means crossing or marching across a border in order to do a reprisal. So a Letter of Marque and Reprisal would authorize a private person, not in the U.S. armed forces, to conduct reprisal operations outside the borders of the U.S.A.

Such Letters are grantable not just by the U.S. Constitution, but also by international law, which is why it was able to be included in the Constitution. The Letters are grantable whenever the citizens or subjects of one country are injured by those in another country and justice is denied by the government of that country, as happened with the attack by persons who were in Afghanistan.

In October 2001, Ron Paul, U.S. representative from Texas, introduced bills H.R. 3074, Air Piracy Reprisal and Capture Act of 2001, and H.R. 3076, September 11 Marque and Reprisal Act of 2001, to authorize the U.S. State Department to issue such Letters. Private U.S. citizens would then be able to hunt down, attack and collect assets from terrorists who have or are planning to commit hostile acts against the U.S. and its citizens. (See Ron Paul's Press Release.)

The Founders of the U.S. Constitution included Marque and Reprisal in addition to authorizing Congress to declare war, so that in some cases, the U.S. government would not have to engage the military and have a costly war. The risk would then be concentrated on those who chose to engage in the reprisal. This empowers private citizens to protect themselves and other Americans.

The Letters combined with high rewards for the capture of terrorists would create an incentive for Americans to conduct these operations. It would supplement U.S. government activity such as seeking out and eliminating the financial networks that terrorists use.

There has been little discussion in the mass media about Letters of Marque and Reprisal. Since these are authorized by the U.S. Constitution, introduced in a bill in Congress, and provide a possible alternative or supplement to U.S. military action, there should be more discussion and then action taken on this possibility. The terrorist threat seems to me to be a good example of the attacks that the Founders of the U.S. Constitution thought would be remedied by such Letters.

It's good that at least one member of the U.S. House of Representatives is familiar with the U.S. Constitution and has taken action to implement this dormant power against attacks on the U.S. Why have other members of Congress not joined Paul to pass his bill on Letters of Marque and Reprisal?

reference=http://www.progress.org/archive/fold232.htm