Letters of Marque and Reprisal

                    The topic of discussion for this Constitution Monday comes from Article I.8.11:  "The Congress shall have Power … To grant Letters of Marque and Reprisal."  This provision simply means that Congress could give letters to individuals authorizing them to wage war against the enemy.  This clause in the United States Constitution played a very important role in the Founders' discussion about how the war powers should be allocated between the President and Congress.

                    "The word marque means to `seize,' and reprisal implies the authority to `destroy.'  Since a letter authorizing a privateer to engage in such activities could provoke war or expand the dimensions of a war, such a letter should be issued only by that branch of government which has the responsibility to declare war.  In the United States, that plenary power belongs to the federal government."

 (See W. Cleon Skousen in The Making of America:  The Substance and Meaning of the Constitution, p. 443.)

                    "The common understanding of `Reprisal' is a seizure of property (or sometimes persons) of a foreign state for redressing an injury committed by that state.  Because the word marque is the French equivalent of reprisal, many scholars believe that the constitutional term `Marque and Reprisal' is best understood as a single phrase."  (See John Yoon and James C. Ho in The Heritage Guide to the Constitution, p. 130.)

                    This statement continued in explaining a serious debate over the meaning of this clause.  Does it authorize only private individuals or parties to gain privately and commercially from the reprisals or does it give "Congress the power to authorize reprisals by the armed forces of the United States for public purposes"?

                    History tells us that General George Washington and his rag tag army of volunteers were able to surround the British at Yorktown only because the French navy was off shore keeping the British fleet away.  The colonists had no national navy during the Revolutionary War except "privateers" - private individuals using their personal or business ships to engage in hostile actions.  The letters of marque and reprisal were given to individuals so they could outfit their privately owned ships to capture British ships without being considered as common pirates if they were caught.  Having a letter from their national authorities could save their lives because pirates in those days were usually killed without trial at the time of capture.

                    Skousen explained that "Since the Declaration of Paris in 1856, letters of marque and reprisal have been considered prohibited by international law.  Nevertheless, in very recent years [middle to late 1900s] American fishing boats requested permission to arm their boats in order to drive off Soviet fishing vessels which were deliberately destroying underwater nets and other expensive fishing gear.  The government did not issue letters of marque and reprisal, but since the Soviet fleet was fishing in American waters, the Coast Guard went out and forced the Russian boats into Boston Harbor, where they were each subjected to very heavy fines."

                    This could explain why commercial ships continue to be unarmed even though they are being hijacked by pirates from Africa.  Another example of how our commercial ships are at the mercy of the pirates was the hijacking of the U.S.-flagged Maersk Alabama on Wednesday, April 9, 2009.  Somali pirates hijacked the unarmed freighter and took Captain Richard Phillips, 53, as a hostage.  Phillips was held in a tiny lifeboat during the negotiations.  He was still there on Easter Sunday, April 13, 2009, when Navy SEAL snipers who were standing on the fantail of a destroyer shot the three pirates and rescued him.  The successful operation was personally approved by President Barack Obama and marked a victory for the U.S.  Our nation had been powerless to resolve the situation even though helicopter-equipped warships were gathering at the scene.  Negotiations with the pirates were becoming dangerous, and an AK-47 was aimed at Phillips' back when the snipers shot the three pirates.

High Seas Piracy

                    The topic of discussion for this Constitution Monday comes from Article I.8.10:  "The Congress shall have Power … To define and punish Piracies and Felonies committed on the high Seas...."  This principle of the United States Constitution gives Congress the exclusive responsibility and authority to "define and punish" crimes that occur on the open seas and therefore do not come under the jurisdiction of any particular state.

                    Pirates preyed on ships on the open seas for centuries before the Constitution was written.  When Spanish galleons were transporting gold from Latin America to Spain, British pirates became very wealthy by taking some of that gold for their own use.

                    "By the Treaty of Ryswick in 1697 England, France, Spain, and Holland all agreed to make common war on piracy.  However, Algiers continued to pepper the seas with pirates, and during Washington's administration a tribute was paid to the pirate chieftains of Algiers to permit American shipping to proceed unmolested.  At the close of the War of 1812, the United States sent Commodore Decatur with a fleet of nine ships to punish the Barbary pirates.  He captured their principal ships, entered the Bay of Algiers, and dictated a treaty to the humbled ruler.  He then sailed to Tunis and Tripoli, where the pirates pledged good conduct from then on.  Since that time the piracy clause of the Constitution has remained practically obsolete.

                    "Felonies committed on the high seas are all crimes (involving penalties of imprisonment or death) which occur on the unenclosed waters of the ocean and on the coast outside of the low-water mark.  These are crimes on the public seas over which all vessels have the right to travel, like a great international highway" (W. Cleon Skousen in The Making of America - The Substance and Meaning of the Constitution, p. 434).

                    Even though Skousen considered this clause almost obsolete when he wrote his book, piracy on the high seas has increased greatly in recent years.  The latest reported incidence of piracy that I found was dated September 14, 2011.   A Cyprus-flagged fuel tanker was commandeered by armed pirates in the Gulf of Guinea, about seventy miles from Cotonou, the commercial capital of the West Africa nation of Benin.  Twenty-three crew members were taken hostage. 

                    Pirate attacks off the coast of Somalia have threatened international shipping since the early years of this century,  Concerns over the  rise in acts of piracy have risen especially since 2005.  Pirates are venturing further out into the ocean by using "mother ships" as their bases.

According to Wikipedia.org, as of September 9, 2011, pirates from Somalia were holding at least 16 ships with an estimated 345 hostages.  Four Americans on an around-the-world sailing trip were captured by Somali pirates in February 2011 while sailing in the Indian Ocean.  When U.S. military personnel boarded the yacht, they discovered that all four hostages had been shot by their captors.  After a brief gun battle as U.S. forces took control of the yacht, two pirates were killed and thirteen others were captured. Two other pirates were dead on the yacht, and two or more others may have been involved - for a total of nineteen pirates.

                    According to Merln under the date of August 9, 2011, new attention has been focused on the piracy off the coast of Somalia because of recent, high-profile events.  These events included hostage rescue operations by France and the attempted hi-jacking of the MAERSK Alabama with the dramatic rescue of Captain Phillips by the U.S. Navy.  Following the rescue of Captain Phillips, the pirates pledged to increase piracy in the Gulf of Aden and specifically target U.S. ships - even though piracy was already rising. 

Merln declared that the International Maritime Bureau claims that 80 commercial cargo ships have been attacked so far this year in the Gulf of Aden with 19 successful hijackings.  There were 111 ships attacked in 2008 with 42 successful hijackings.  The Gulf of Aden is approximately 2.8 million square kilometers.

Also according to Merln, President Barack Obama welcomed Captain Phillips home on April 12 and "stated his resolve to halt the rise of piracy in the region."  Secretary of State Hilary Clinton announced three days later that the United States "will not make concessions or ransom payments to pirates" and announced four steps that the U.S. would take immediately:  1) "work with international partners to crack down on pirate bases and decrease incentives to engage in piracy;" 2) "develop an expanded multinational response;" 3) "engage with Somali government and regional leaders in Puntland to take action against pirates operating from bases within their territories;" 4) "work with shippers and the insurance industry to address gaps in self-defense measures."

                    Last month a Dutch court sentenced two Somali pirates to prison terms of up to seven years each for hijacking a yacht from South Africa last year and capturing a South Africa couple.  The two captives are still missing.  Three other Somalis were also convicted of piracy.

                    In similar cases this year, a Spanish court in Madrid handed down prison sentences of 439 years each to two convicted pirates.   In Virginia, a U.S. court gave five convicted pirates life sentences. 

                    These court cases signal that maritime nations are no longer willing to follow the precedence of the past when captured thieves were released or handed over to the Somali or Kenyan courts.  There is no doubt in my mind that this clause is actively being used as the United States and other countries counter pirate attacks on ships.