Letters of Marque and Reprisal
Monday, November 23, 2009
by Ken Stremsky
Congress may decide how long Letters of Marque and Reprisal are good for. Because there is no specific definition in the Constitution, Congress gets to decide what they are and how they may be used. Think about the difference between using some Letters of Marque and Reprisal and what we have done in Iraq and Afghanistan. Do you think what we have done in both makes sense? I do not. Sending lots of troops into an area when locals may be more useful and create fewer enemies for us may sometimes make more sense.
If people do things with Letters of Marque and Reprisal Congress has not given permission for, they do not keep getting paid. Congress may have as much control over Letters of Marque and Reprisal as it wants. The Constitution does not mention just using Letters of Marque and Reprisal for ships. Prior permission from Congress can be required before Letters of Marque and Reprisal may be used.
There is many things I think Congress should be doing via its power to Punish Piracies and Felonies. Do you want Congress to take the lead role in punishing Piracies and Felonies? I do. Do you want Congress to take the lead role in punishing terrorists from foreign countries because of Offences against the Law of Nations"? I do.
I have not discussed taking due process of law from anybody. I did not talk about rounding up Muslims and taking away their rights. I did mention Congress gets to decide how captured enemy combatants, terrorists, and prisoners of War are dealt with because I WANT THEIR RIGHTS PROTECTED. Their rights have NOT been protected. I am trying to protect the rights of people by saying Congress and NOT the President gets to decide Rules Concerning Captures on Land and Water. Are you happy with the way former President Bush treated captured terrorists and enemy combatants? I am NOT. People should care about what the United States Constitution says and why it says what it says.
You do NOT have to be supported by a government to wage War. Terrorist groups from many countries may wage war. They attacked civilian and military because that was part of their War plan. Ignoring the fact that they were part of the same War plan makes no sense. Ignoring the fact that Congress gets to decide how people who commit "Offences against the Law of Nations" are dealt with makes no sense. Does the Constitution say Congress may not decide punishment when "Offences against the Law of Nations" are done to civilians? No. Does the Constitution say people who commit "Offences against the Law of Nations" may not be tried in a military tribunal when they attacked civilians as part of their War plan? No.
Mr. Berg-Andersson responds:
But the Constitution does say (in the 6th Amendment thereto) that [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury... and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
Mr. Stremsky writes "Are you happy with the way former President Bush treated captured terrorists and enemy combatants? I am NOT. People should care about what the United States Constitution says and why it says what it says." I myself once wrote a piece for this website about a closely related topic thereto entitled 'WHAT PART OF THE WORD 'NO' DOES THE WHITE HOUSE NOT UNDERSTAND?'...
well, what part of the word 'all' (as in that phrase "all criminal prosecutions" as it appears in the 6th Amendment) do those who so roundly criticize Attorney General Holder's decision not understand? The deaths and injuries caused at and near New York City's World Trade Center were all crimes and those who were behind them should be prosecuted... but under the ordinary forms of Due Process as is customary in the jurisdiction in which those very crimes had been committed.
I also want to make clear that I never intended to suggest that Mr. Stremsky was one of those who has called for the rounding up of Muslims in America in the wake of the 9/11 attacks. Many persons, however, did so in the immediate aftermath of the terrorist attacks of 11 September 2001-- and quite a few of these within the Wide Wacky Wonderful World of Political Punditry, if only occasionally, still do (the recent shootings at Fort Hood in Texas by a Muslim U.S. Army officer have brought at least some of this opinion once more to the fore, as a quick perusal of the Internet has so clearly shown me) and many of these who so opine are also amongst the more vocal critics of Attorney General Holder's decision to try 9/11 terrorist defendants in civilian criminal court. Mr. Stremsky, again, is not one of these, however, as he himself has made clear in what he himself has written above... but I myself never assumed that he, in fact, was!
I only brought up the rounding up, for purposes of internment, of American Muslims in the first place as an example of an extreme measure within that which many Jihadists- terrorists and their supporters alike- most fervently wished- and, in at least some cases, actually expected- to be implemented-- that is: the people of the United States of America tossing their own Constitution overboard in the name of Homeland Security in the wake of the 9/11 attacks... fortunately, that did not ever happen! However, my point was- and still is- that not trying terrorist suspects in criminal court under ordinary Due Process within our own legal system is, however different in degree, not all that much different in kind from just such an extreme measure.
Now, one more comment about Letters of Marque and Reprisal and then I think we have had quite enough of the subject, thank you very much!:
In fact, Letters of Marque and Reprisal have historically been, despite what Mr. Stremsky opines, all about ships.
The fact that Letters of Marque and Reprisal are not specifically defined by the United States Constitution does not mean that Congress can, as a result, go ahead and define these as it might wish; rather, it simply means that- when the Framers of the Constitution meeting in Philadelphia back in 1787 approved the language of Article I, Section 8, clause 11 in which Letters of Marque and Reprisal are mentioned (they are also mentioned, by the way, in Article I, Section 10, clause 1 of the Constitution- in which the States of the American Union are specifically enjoined from issuing same; Marque and Reprisal was solely a Federal prerogative), they presumed that readers of the document would, at the time, know precisely what was meant!
Problem is: Letters of Marque and Reprisal have been considered an offense against the Law of Nations for so long (over a century and a half now) that the present generation generally has no idea what the terms 'Marque' and 'Reprisal' actually do mean... judges in the 19th Century did, however!
In 1822, a New Jersey State court decision in the case of Gibbons v. Livingston [1 Halsted (6 NJ Law) 236] noted that a Letter of Marque and Reprisal was permission, specifically granted (by government) to a privateer, to attack the subjects of a foreign state on the high seas beyond the limit of the state, seize their property, and put it in sequestration. That opinion of the court went on to note that such permission was always considered to be a hostile act of aggression.
Later still, in 1885, the U.S. District Court for the Southern District of New York (interestingly, if only coincidentally, the very same court in which Attorney General Holder has decided the 9/11 terrorist defendants will be tried) wrote- in its opinion in the case of United States v. The Ambrose Light [25 Fed. 408]- that Letters of Marque and Reprisal were a naval commission issued by a government, either actual or purported, authorizing its vessels to attack and seize the vessel of another power or government with which the government issuing such letters are at war. The court- this time, a Federal one- went on to note that [u]nless the government issuing the letters has been recognized as a belligerent by some sovereign power, such letters or commission are void, [in which case] vessels sailing thereunder and threatening neutral commerce may be lawfully suppressed by seizure as pirates.
Other courts had, in between these two decisions, already made a distinction between 'Marque' and 'Reprisal' in which the former was to be used against countries with which the government issuing the commission was actually at war (held to, in the case of the United States, require an actual Declaration of War per Article I, Section 8, clause 11 of the Federal Constitution), while the latter was to be utilized against a country with which the issuing power was not at war but which was, nonetheless, seen, by the issuing power, to have wronged that power in some way. The decision in U.S. v. The Ambrose Light seems to have done away with this distinction between Marque and Reprisal by requiring the issuing power to be a "belligerent" (thus, the commission could not be used against a 'potential adversary'- to here use an old Cold War era phrase- with which the issuing power was not actually in the state of war at the time of issuance).
A couple things to well note here: first, the commission was only valid "on the high seas beyond the limit of the state": thus- even if Letters of Marque and Reprisal were to, somehow, be used against a country, perhaps one harboring or otherwise aiding and abetting terrorists, nowadays- the commission allowed by said Letters could not be valid within the borders of that country in any event (Marque and Reprisal could, by its very definition, only take place "beyond the limit of the state"- that is: outside said country's borders). The reason for this was simple and it is best summed up by wording within the opinion re: the case of Dow v. Johnson [100 U.S. 158], decided by the U.S. Supreme Court in 1880, in which the question of just what Law prevails within the borders of a country at war with another country when that other country has invaded the former was at issue...
the Court wrote, in answer to that very question, that [i]t is not the civil law of the invaded country; it is not the civil law of the conquering country; it is military law- the law of war, and its supremacy for the protection of the officers and soldiers of the army, when in service in the field of the enemy's country, is as essential to the efficiency of the army as the supremacy of the civil law at home, and, in time of peace, is essential to the preservation of liberty.
Put another way: the civil law of the United States cannot extend to areas within a country with which the U.S. might be at war (because what we would, nowadays, call "rules of engagement" within both the Combat Zone and its contiguous Communication Zone on the American side of the battlespace trump both ordinary American civil law as well as the local law of the country in which Americans happen to be fighting): therefore, any Letter of Marque and Reprisal issued by the United States (again, specifically authorizing- indeed, commissioning- a private individual to capture persons subject to, and property of said nationals of, a country with which the U.S. was at war) would be of no legal effect except outside that same country's borders.
I suppose that- had Marque and Reprisal survived well into the 20th Century- it might well have been applied to Aviation as well as Maritime interests (for the Law of the Sea has had a direct effect on International Law as regards Air Travel: the most well-known example being, probably, the notion that the Captain of an airliner has the same power and authority, under International Law, as the Master of a seagoing vessel over all persons and cargo onboard while underway) but- as I've noted elsewhere- Marque and Reprisal became a 'no-no' under International Law before passenger-carrying and cargo-shipping airplanes were to become common... so, in that narrow sense, Mr. Stremsky is right to suppose that Marque and Reprisal could, theoretically, have been extended beyond ships.
But, to close, I now go back to the very core of what has led to this whole 'vox Populi'-based discussion between Mr. Stremsky and myself:
within that quotation from the U.S. Supreme Court opinion of Dow v. Johnson I have provided above, the Court noted that the supremacy of the civil law at home, and, in time of peace, is essential to the preservation of liberty. Thus, it is civil- as opposed to military- law that must- absent the most extraordinary conditions- remain paramount here at home and that is precisely why the crimes of 9/11 (at least as regards the attacks on New York City) should be tried as crimes...
by the way, I exited the Port Authority Trans Hudson train coming in from my State of New Jersey at 'Ground Zero' again this past Saturday afternoon and, in addition, I again happened to walk through Manhattan's Foley Square: please know the courthouses were still there and New York City was not under military occupation in any event.