Letter of Marque and Reprisal Bills: Questions and Answers
H.R. 3074 -- The Air Piracy Reprisal & Capture Act of 2001
H.R. 3076 -- The September 11 Marque & Reprisal Act of 2001


      
I.  Necessity of Legislation

Q.  Doesn't S.J. Resolution 23 authorize the president to use whatever means necessary to respond to the September 11 terrorists acts?

A.  No.  By its express terms, S.J. Resolution 23 authorizes the president only to use the United States Armed Forces against those responsible for the September 11 attacks.  H.R. 3074 and H.R. 3076 authorize the president to use nongovernmental persons or entities to seize the persons and property of those responsible for the September 11 attacks, as acts of air piracy in violation of the law of nations.

Q.  Doesn't the president have such authority without these bills to employ whatever means he thinks necessary to defend the nation?

A.  No.  By the express terms of Article I, Section 8, Clauses 10 and 11 of the U.S. Constitution, only Congress has the authority to define offenses against the law of nations and to authorize the use of nongovernmental persons or entities to capture those who commit those offenses.  By this legislation authorizing the issuance of letters of marque and reprisal for acts of air piracy against those responsible for the September 11 attacks, the president may enlist former CIA agents, retired military intelligence officers, former members of U.S. Special Forces (such as U.S. Army Rangers or U.S. Navy Seals) or other individuals in the nation's effort to stop these terrorist attacks.

Q.  Why do we need non-government persons or entities when we have such a powerful military?

A.  The CIA has had a special Osama bin Laden unit since 1996.  "Al Qaeda and bin Laden were the number one security threat to America after 1998...the highest priority," according to Sandy Berger, national security advisor to former President Clinton.

President Clinton promised to track down those responsible for bombing the World Trade Center (1993), Khobar Towers (1996), American embassies in Tanzania and Kenya (1998) and the USS Cole (2000) -- without success.

Conventional military power and tactics can't do the job of locating and capturing an enemy that hides among civilian populations, or in temporary and remote locations like the mountains of Afghanistan.  Massive bombing raids that destroy villages or larger population centers risk slaughtering civilians.

October 3, Washington Post:  "U.S. Was Foiled Multiple Times In Effort To Capture Bin Laden or Have Him Killed."  Government resources necessarily interact with foreign governments and are subject to foreign-government pressure.  They are subject to restraints created by complex trade (needs of the U.S. for oil) and defense entanglements.  They are required to notify foreign governments in parts of the world where you never know who you're dealing with, and they risk security breaches.

Example:  August 20, 1998, we sent 66 cruise missiles into suspected terrorist- training camps in Afghanistan -- at the same time we fired 13 missiles at the pharmaceutical plant in Sudan -- and Osama bin Laden and his terrorist network were unharmed.  Bin Laden moved out either three or 10 hours earlier.

Example:  A military coup in Pakistan in 1999 aborted a commando-style operation against bin Laden in October of that year.

U.S. intelligence services have been encumbered by administration prohibitions on how they conduct their business.  One such prohibition prevents the use of sources that have "dirty hands" -- such as individuals with possible criminal or human rights violations in their backgrounds.  These tainted contacts can be the most significant sources of information.  Private sources providing military and security services to governments and organizations worldwide have not been encumbered by arbitrary limits on "sources."

Private sources are not encumbered by rules of engagement.  Rules governing engagement, either applying to the field or governing intelligence contacts, are invariably set by politicians and bureaucrats far removed from the conflict.

As well trained as they are, U.S. personnel are American, and the best operatives might be former al Qaeda members and other disaffected Afghans who don't have the disadvantage of being foreigners.

II.  Legality of "Privateering"

Q. 
Isn't it against customary international law to engage "privateers" to use armed force on behalf of a nation?

A.  No.  While it is true that the Declaration of Paris of 1854 abolished privateering, the United States did not subscribe to that declaration on the ground that to prohibit a nation from commissioning private persons and entities to respond to enemy attacks would require her to become solely reliant upon powerful navies and large standing armies for her defense and, as a consequence, would threaten her national prosperity and endanger the civil liberties of her people.

Q.  Isn't the use of "privateers" just another form of unlawful piracy?

A.  No.  An act of piracy is committed when nongovernmental persons employ armed force without lawful authority either by attacking persons in areas outside the jurisdiction of a lawful government, or by waging an attack against a nation contrary to the laws of nations.  This legislation contains safeguards against such lawless acts, requiring such nongovernmental persons to obtain a letter of marque and reprisal from the president before employing such armed force which, in turn, must meet certain terms and conditions spelled out by the president in the authorizing letter, including the posting of a security bond.

Q.  What if a privateer acts contrary to the terms and conditions of a letter of marque and reprisal?

A.  Like any agent, anyone who is issued a letter of marque and reprisal who acts contrary to the terms of that letter is guilty of an unlawful act and is solely responsible for that act, unless the person who commissioned the agent to act on his behalf was guilty of poor judgment in choosing to employ that agent.

III.  Letters of Marque and Reprisal and Assassination 

Q.
  By its express terms your bill authorizes a letter of marque and reprisal to capture Osama bin Laden alive or dead.  Isn't that just another way of authorizing the assassination of bin Laden?

A.  No.  Traditionally, a letter of marque and reprisal authorizes the use of armed force to deprive a nation's enemy of economic and other material resources that enables the enemy to wage war against that nation, or that nation's citizens, when outside the nation's protective umbrella.  Obviously, to carry out such authority, the holder of a letter of marque and reprisal may use armed force against persons who resist the execution of the letter and in the process may kill those persons in self-defense.

Q.  By authorizing the president to place a bounty on the head of bin Laden, doesn't this legislation encourage the assassination of bin Laden?

A.  No.  This legislation actually reduces the likelihood that a self-appointed bounty hunter will respond to a privately-raised and offered bounty.  By channeling such a bounty offer through the president and authorizing it to be offered only to persons lawfully authorized to seize bin Laden under a letter of marque and reprisal, the likelihood of his being captured alive is increased.

Q.  What happens to bin Laden or one of his associates if captured alive?

A.  As provided for in this legislation, bin Laden or one of his associates is an enemy belligerent charged with having committed acts of war against the United States contrary to the law of nations.  Hence, neither he nor one of his associates is a prisoner of war, nor is he or one of his associates an ordinary criminal defendant.  Rather, as an enemy belligerents, they are subject to American court-martial jurisdiction to be tried for violation of acts of piracy against the laws of nations and, if convicted, punishable by life imprisonment or by death.

IV.  Letters of Marque and Reprisal and America's Current Efforts

Q.  Won't private bounty hunters get in the way of America's military and diplomatic efforts?

A.  Not at all.  This legislation does not require the president to enlist the help of private entities or offer a bounty; rather, it gives the president the authority, in his discretion, to use such weapons if they can provide a service that is not available through the official armed forces of the nation.  As a matter of fact, private firms were engaged to provide military services in the former Yugoslavia with good and productive results, and often serve at the behest of foreign governments.  Appointed by the president, such private-sector resources could be coordinated with governmental activities.  By employing private entities to penetrate the terrorist strongholds, the president is given another weapon that can be employed under the diplomatic radar, and thereby, enhance the president's efforts to build a broad-based coalition without undermining the objective of punishing and deterring terrorism -- whatever its source.

Q.  Do such private companies exist?

A.  Yes.  There are a number of private-sector companies which supply military and security services to governments and organizations worldwide.  Among them are Global Options, Inc., Military Professional Resources, Inc., Vinnell Corporation, and Peregrine International, Inc.  These companies are headed by competent and disciplined professionals and are staffed by experienced former- intelligence officers and specially trained military personnel.

Q.  Given the reputation of the CIA worldwide, why should we expect nations to have confidence in companies that might be operated and staffed by ex-CIA agents?

A.  The terrorists who attacked America on September 11 are a threat to all but a handful of nations, themselves sponsors or harborers of terrorist organizations.  One problem the CIA is known to have suffered under the Clinton years was restrictions on operations that, among other things, prevented the use of sources that had "dirty hands" -- which can mean sources with possible criminal or human-rights violations in their backgrounds.  This can lead to having no significant sources at all.  Private-sector companies and their ex-CIA, former Army Ranger or Navy Seal personnel do not suffer under such limitations on intelligence.

Similarly, private-sector companies are not encumbered by rules of engagement forced on the formal military, special forces included, often by politicians and bureaucrats far removed from the life-or-death realities in the field.

V.  Legislation and the United Nations

Q.
  Instead of authorizing more options for America to act unilaterally against terrorism, shouldn't Congress encourage the president to rely more on collective action under the auspices of the United Nations?

A.  No.  The September 11 attacks on America were not just a "crime against humanity," but an act of war designed to destroy the United States as an independent and sovereign nation.  America's right to self-defense is not based upon Article 51 of the United Nations' charter, but upon its equal station in the family of nations as guaranteed by the law of nations.  Therefore, the constitutional authority of Congress to define offenses against the laws of nations, to declare war, and to grant letters of marque and reprisal is not subordinate to the Security Council of the United Nations.

Q.  By authorizing the trial of Osama bin Laden and his associates by military court-martial, doesn't this legislation interfere with efforts to bring them to justice before international courts?

A.  Yes, and for good reason.  The international courts, including the proposed International Criminal Court, do not have jurisdiction over persons who commit acts of war contrary to the laws of nations.  Nor should they.  The United States, like any other independent and sovereign nation, must have the right to defend herself without having to submit her case to judges from other countries who sit on a court that may, in part, be financially supported by countries or persons who may be sympathetic to America's enemies.

Q.  Isn't the letter of marque and reprisal out-of-date; a means of warfare no longer suited to a world of interdependent nations?

A.  No.  Letters of marque and reprisal enable a nation to make a surgical, armed strike against an enemy, providing diplomatic cover both to herself and her allies and to nations that wish to remain neutral.  Indeed, they were initially designed, and used, in America's early history, as attempts to avoid a wider war by authorizing limited defensive and preemptive armed actions without invoking the general laws of war.


 

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