Are the Defense and State Department contracts with private vendors such as "Blackwater" for armed protection from foreign military operations actually poorly drawn "Letters of Marque and Reprisal"? If so they do not comport with the Constitution which vests the issuance of such letters/contracts in the Congress alone.http://en.wikipedia.org/wiki/Letter_of_marqueArticle 1 of the United States Constitution lists issuing letters of marque and reprisal in Section 8 as one of the enumerated powers of Congress, alongside the power to declare war. One question is whether the marque and reprisal clause requires the President to obtain such a letter from Congress as an authorization for limited offensive warlike operations outside the territory of the United States.
It is the opinion of Jules Lobel, a prominent Constitutional law scholar at the University of Pittsburgh School of Law, that the origins of this clause and the framers' intent fit well with modern notions of irregular warfare, supporting the view that the President's use of troops in foreign military operations, including covert paramilitary actions, is illegal absent Congress' authorization.
Some scholars, however, view this clause as contemplating action only by private contractors, and not as a limit on presidential power. For example, in 2002, Douglas Kmiec, then dean of the Columbus School of Law at the Catholic University of America, testified before the Senate Judiciary Committee that:
- Letters of Marque and Reprisal are grants of authority from Congress to private citizens, not the President. Their purpose is to expressly authorize seizure and forfeiture of goods [reprisal] by such citizens in the context of undeclared hostilities. Without such authorization, the citizen could be treated under international law as a pirate. Occasions where one's citizens undertake hostile activity can often entangle the larger sovereignty, and therefore, it was sensible for Congress to desire to have a regulatory check upon it. Authorizing Congress to moderate or oversee private action, however, says absolutely nothing about the President's responsibilities under the Constitution.
.Because the difference between a privateer and a pirate was a subtle (often invisible) one, in 1856 the issuance of Letters of Marque and Reprisal to private parties was banned for signatories of the Declaration of Paris. The United States was not a signatory to that Declaration and is not bound by it. During the 1861-65 American Civil War and the 1898 Spanish-American War, however, the United States issued statements that it would abide by the principles of the Declaration of Paris for the duration of the hostilities. The Confederate States of America issued Letters of Marque and Reprisal during the Civil War. The only vessel to operate under a Letter of Marque issued by the United States Congress since the War of 1812, was the airship Resolute, operated by civilians to patrol the seas [off the west coast] for submarines during the Second World War.
The issue of Marque and Reprisal was raised before Congress after the September 11, 2001 attacks, and again on July 21, 2007 by congressman Ron Paul. The attacks were defined as acts of "air piracy," and the Marque and Reprisal Act of 2001 was introduced, which would have granted the president the authority to use Letters of Marque and Reprisal against the specific terrorists, instead of warring against a foreign state. The terrorists were compared to pirates in that they are difficult to fight by traditional military means.
A matter to think about, I believe.