Tuesday, June 22, 2004

# Posted 6:41 PM by Patrick Belton  

PRIVATEERS!!!!! One of the odder constitutional moments to arise out of the aftermath of September 11th transpired when Representative Ron Paul (R-Tx), rereading Article I, Section 8 of the Constitution, realised that Congress had the power to grant letters of marque and reprisal. Letters of marque and reprisal, for those of you with lives who aren't congressional foreign policy or constitutional scholars, were a means of sanctioning privateers to travel abroad - hence past the nation's frontier, or 'marque' - and search, seize, or destroy assets or personnel of a hostile country - yes, the 'reprisal bit' - in private response to a public wrong. It was considered a retaliatory measure short of a declaration of war, and as such was meant to be governed by a rough proportionality between the original delict and the state-sanctioned privateer's reprisal. Pirates with letters of marque and reprisal were operating within the colour of law, and were hence privateers. For instance, the famous pirate Captain Kidd's letter of marque from the Admiralty is here. These went out of fashion with the Declaration of Paris in 1856, of which the US was not a signatory, though at several points - during the US civil war and the Spanish-American war, in particular - the US government indicated it would at least for present purposes abide by the principles of the declaration.

Where, indeed, all of this rested - until October 10, 2001, when Representative Paul reread the Constitution and realised that Congress still retained the power to grant letters of marque, and, heroically deciding that the President could not possibly be expected to win a war on terror without such an important tool (i.e., as pirates), he decided thenceforth to devote himself to a holy personal mission of granting President Bush the power to grant letters of marque and reprisal in the war on terror. To this end, he introduced HR 3076, the September 11 Marque and Reprisal Act of 2001. Helpfully, the bill's section 2(a) notes that the September 11 terrorists were, indeed, pirates (air pirates), and of course, who could be expected to fight pirates except with pirates? (Actually, wasn't it the Royal Navy that put down most piracy in the Caribbean and Atlantic sea lanes? hey, we're having fun here, don't spoil it.) And indeed, in short order letters of marque became Rep. Paul's best answer to everything: on the House floor, with parliamentary eloquence not heard since Cicero, Rep. Paul praised them as the obvious result of proceeding with caution and deliberation, taking into account unintended consequences, and avoiding hasty responses - 'We should be careful not to do something just to do something- even something harmful. Mr. Speaker, I fear that some big mistakes could be made in the pursuit of our enemies if we do not proceed with great caution, wisdom, and deliberation. Action is necessary; inaction is unacceptable. No doubt others recognize the difficulty in targeting such an elusive enemy. This is why the principle behind "marque and reprisal" must be given serious consideration.' (yes, he really did praise bringing back pirates as a 'cautious, deliberate' solution to September 11. And that's just a glimpse, ladies and gentlemen, of the keen intelellect and leadership skill it takes to be a member of Congress.) Sadly, the bill has not moved anywhere visible to the naked eye in committee - but something tells me we haven't heard the last of the September 11 Marque and Reprisal Act. Crusades are made of flinty stuff.

Frankly, I'm comforted by the notion that members of the House of Representatives are, like Ron Paul, even as we speak reading the Constitution to scan for powers that can be reinvigorated and placed in the president's hands to prosecute the war on terror. This is principally because I'm comforted by the fact that at least some members of the House can read. Although if we were to commission pirates to act in our interests, I'd like to nominate patriot Hans Sprungfeld. And this isn't even to speak of the constitutional fun and games that can be had, say, in establishing standards of weights and measures, or even in establishing post roads (woo-hoo!).
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