||I. Necessity of
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
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
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
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
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
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
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
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
IV. Letters of Marque and Reprisal and America's
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.