U.S. Rep. Ron Paul
Somali Pirates Holding The Crew of The Ukrainian Cargo Ship Known As The MV Faina Hostage
By Erika Lovley
A little-known congressional power could help the federal government keep the Somali pirates in check — and possibly do it for a discount price.
Rep. Ron Paul (R-Texas) and a growing number of national security experts are calling on Congress to consider using letters of marque and reprisal, a power written into the Constitution that allows the United States to hire private citizens to keep international waters safe.
Used heavily during the Revolution and the War of 1812, letters of marque serve as official warrants from the government, allowing privateers to seize or destroy enemies, their loot and their vessels in exchange for bounty money.
The letters also require would-be thrill seekers to post a bond promising to abide by international rules of war.
In a YouTube video earlier this week, Paul suggested lawmakers consider issuing letters, which could relieve American naval ships from being the nation’s primary pirate responders — a free-market solution to make the high seas safer for cargo ships.
“I think if every potential pirate knew this would be the case, they would have second thoughts because they could probably be blown out of the water rather easily if those were the conditions,” Paul said.
Theoretically, hiring bounty hunters would also be a cheaper option.
National security experts estimate that this week’s ship captain rescue by Navy SEALs cost tens of millions, although a Navy spokesman says the military cannot confirm the exact cost of the mission.
Instead, privateers would be incentivized to patrol the ocean looking for key targets — and money would be paid only to the contractor who completed the job.
“If we have 100 American wanna-be Rambos patrolling the seas, it’s probably a good way of getting the job done,” said Competitive Enterprise Institute senior fellow and security expert Eli Lehrer. “Right now we have a Navy designed mostly to fight other navies. The weapons we have are all excellent, but they may not be the best ones to fight these kinds of pirates. The only cost under letters of marque would be some sort of bounty for the pirates.”
According to Senate historians, Congress hasn’t issued a letter of marquee since the War of 1812, but the Confederate States of America issued them during the Civil War to deliver supplies behind enemy lines. There are also some indications that a letter was granted to a flying band of armed civilians during World War II to operate the Resolute, a Goodyear Blimp used to patrol the ocean for enemy submarines, but the issuance isn’t apparent in the Congressional Record.
If Congress were to revisit the antiquated process, a serious makeover would be required.
In the past, privateers were allowed to keep the ship and treasure they captured in an enemy encounter.
“That isn’t a viable way of funding in today’s world,” said Lehrer. “These pirates don’t really have treasure chests, and their money is tied up in Swiss Bank accounts. Congress would probably have to attach sizable bounties to people.”
Bounties are not a new idea — there is still a $25 million bounty on Osama bin Laden, and millions have been awarded by the government for other enemy captures.
The U.S. State Department earlier this month put a $5 million bounty on the head of the top Pakistani Taliban leader, and even local police departments use rewards to solve cold cases.
University of Oregon economics professor Bill Harbaugh argues the setup could potentially work better than some of the United States’ relationships with modern-day security contractors.
“Obviously, this is somewhat like the contract the government had with Blackwater, except we forgot the bond part of the contract, he said. “If Congress had used this contract from 1776, it would have been more sophisticated than the one they issued with Blackwater.”
Harbaugh’s fifth great-grandfather, Silas Talbot, worked as an early privateer for the United States in 1780 after serving in the Revolutionary War. His letter of marque shows he set out with 12 carriage guns and a crew of 50 men to attack and seize cargo ships coming from Great Britain on the high seas.
Could it really work again?
“It may work in the sense that if you give people incentives to fight piracy, you’ll see more action taken against it,” said Andrew Grotto, a senior national security analyst with the Center for American Progress. “The ocean is huge and, practically speaking, there’s no way the Navy can prevent piracy; it’s too big. But just given the experience in Iraq with private contractors, that effort showcases the difficulties dealing with folks who aren’t answerable to anyone but shareholders.”
But Paul has already thought through a number of these updates.
Days after Sept. 11, Paul introduced legislation allowing President Bush to allow private citizens to go after Osama bin Laden and other identified terrorists and put a bounty price on the heads of targets responsible for the New York attacks. Contractors would also be required to post a play-by-the-rules bond and turn over any terrorists — and their seized property —to U.S. authorities.
“The Constitution gives Congress the power to issue letters of marque and reprisal when a precise declaration of war is impossible due to the vagueness of the enemy,” Paul wrote in a press release. “Once letters of marque and reprisal are issued, every terrorist is essentially a marked man.”
But national security experts and legal analysts warn that applying a colonial-era policy to a modern-day problem could be wrought with legal pitfalls that the Founding Fathers never encountered.
If bounty hunters chase pirates into territorial coastal waters or on to the shore of another country, the problem would fall under the jurisdiction of that country. And any plundering activity that takes place in coastal waters is no longer considered piracy, according to College of William and Mary national security law professor Linda Malone.
Not to mention that there’s also no clear indication where and how the captured pirates should be prosecuted.
“You have to find a stable court system nearby to have them tried for these offenses, but that can be quite complicated,” Malone said. “The fact that the pirates are from Somalia doesn’t make them state actors. They are doing this for private gain.”
And how to determine exactly who is a pirate — and what constitutes pirate activity — could get fuzzy.
“What happens when a ship flying under Congress accidentally takes out an aid ship bound for Somalia?” Grotto said. “At what time does an act seem pirate-like enough to cross the line? Do we really want these snap judgments being made on the fly in waters thousands of miles away from Washington? This is not Johnny Depp we’re dealing with.”
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