Letters of Marque & Reprisal

Over the past ten days, the response to the Paris massacre has been swift and deadly. AA, Daesh’s team leader, was killed in a shootout with police. The day after the attacks in Paris, French President Hollande authorized a series of airstrikes against Daesh positions in Syria. Russian President Putin directed Russian forces in Syria to begin coordinating with soon-to-be-arriving French naval forces. A United States drone strike “vaporized” Jihadi John, one of the faces of Daesh’s horrors. Additionally, the hacker group Anonymous took down almost 4,000 social media accounts used by Daesh terrorists. Despite these measures, there is still no formal declaration of war by the United States or other NATO countries. Most likely, no “declared war” will happen. However, there are still options less than war that the United States and private citizens might undertake to fight Daesh.

Can an individual actually legally take the fight to Daesh? There are plenty of reports of Americans, and others, who have left their home countries to join up with the Kurdish Peshmerga. The legitimacy of such actions is questionable. There is a possibility that the United States would not make much effort to rescue these citizens if Daesh captured them; however, the legal ramifications of a person leaving to fight a foreign war are beyond the scope of this note. In no way should this brief overview of possible policies and courses of action be considered legal advice.

BUT, one Constitutional clause that bears review is Article I, Section 8 that authorizes Congress to issue Letters of Marque and Reprisal. Historically, this document was basically a government license to go hunt pirates. One of the more famous privateers, who operated under a letter of marque, was Sir Francis Drake. He is well known for the defeat of the Spanish Armada in the 16th Century. Opinions about the use of letters of marque changed over time and many countries abolished them in the Paris Declaration of 1856. However, the United States was not a signatory to that agreement. Also, the United States did not join the Hague Convention of 1907, which reaffirmed that letters of marque should remain historical documents only.

History has an odd way of forcing itself into the present. In the time of Sir Drake, pirates were non-state actors who harried, harassed, and stole from the international shipping community. What complicated matters was that the pirates sometimes “worked” with certain governments who would simply turn a blind eye to particular operations, provided that the pirates did not attack that country’s ships. Today, international terrorists plan, create strategy, recruit, and spew propaganda within the boundaries of friendly, or at least neutral, countries. The terrorist’s actual operations happen in Paris, New York, Mali, Turkey, Baghdad, and Moscow. Daesh, in particular, carved out its own planning and training space within Iraq and Syria. The coordinated attacks in Paris demonstrate that Daesh has the capability to project power abroad and continue the ground battles in Syria and Iraq.

Currently, President Obama does not want to commit American ground forces to eliminate Daesh in Syria. David Petraeus, the retired Army General and former head of the CIA, recently opined that while US forces could certainly bring the fight to Daesh, that fight would be extremely difficult and bloody. The fiction persists that there is only an all or nothing proposition; however, reviving the letter of marque could open different options. What if Congress could potentially permit the private sector to legitimately take up the fight? Congress could pass, and then issue, Letters of Marque to qualified applicants. Those applicants would then have the responsibility to raise, train, and compensate their own forces. The private sector’s motivation to do just this does not seem too far-fetched.

Along with the Letter of Marque, Congress could also authorize bounties in 7 figure amounts to “encourage” enterprising hunters to target particular individuals. Consider the attention that a “Wanted Dead or Alive” poster would receive if accompanied by a $5M incentive, if it were posted from a Congressional Twitter account. Viral anyone?

Fighting a non-state actor such as Daesh requires asymmetric thinking. Daesh will never engage in a World War II style land battle with the United States unless the President sends our forces there. Even if the Army and Marines showed up to reinforce the Peshmerga or Free Syrian Army forces, Daesh would likely switch to insurgency style warfare. Consequently, fighting Daesh requires similar creative tactics.

Many of Sun Tzu’s instructions are relevant to the combatting Daesh discussion. Debating the virtues of offense and defense requires bringing two clauses to the fore:

  1. Security against defeat implies defensive tactics; ability to defeat the enemy means taking the offensive;
  2. Standing on the defensive indicates insufficient strength; attacking, a superabundance of strength.

As we continue to assess and reassess the possible options, policymakers must also review these same options from the perspective of Daesh. What is our endstate? What is theirs? What strategy will be employed to achieve the endstate? What tactics are best suited to execute the strategy?

For us, every option must be on the table, including those that made the history books. Our enemies are not constrained by rules or tactical half-steps. We should follow suit.

Authored by Miami business law firm, Yolofsky Law, P.A.