If you look at that "quaint" document, the Constitution of the United States of America, in
Article One, you will see the powers of the Congress enumerated.
In particular, Section 8. And if you look at Clause 11, it states that Congress "shall have the power"
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
It was this blog which got me to wondering what exactly a Letter of Marque and Reprisal was.
Wikipedia has an excellent analysis but essentially a Letter of Marque (and Reprisal) is an official authorization by a government to seize or destroy assets or people somewhere outside the jurisdiction, i.e. overseas.
It's a very old segment of the law of course so let me give you a classic definition. A British merchant ship is captured in France and her cargo is looted. The British merchant appeals to the British government, which then turns to the French government to have the cargo reinstated. If the French should refuse, the British could give the cargo ship owner a Letter of Marque and Reprisal, official permission to go to France and take his stuff back by force.
That's the classic definition, although it was used more when semi-autonomous cities were involved rather than nation-states as we know them now. The most famous use of the Letter of Marque and Reprisal was when the British authorized private ships (privateers) to attack enemies of Britain, in effect allowing for legalized piracy as part of the war effort.
The European powers banned Letters of Marque in the Treaty of Paris (1856) but the United States never ratified the treaty (sound familiar?) so it is still technically legal for Congress to issue Letters of Marque and Reprisal.
You may be wondering why this is important beyond a technical dissection of the Constitution, but actually there are some scholars who say a Letter of Marque would be the perfect legal avenue to handle terrorism groups, particularly Al-Qaeda.
As America grapples with the "terrorist surveillance program", which Abu Gonzales says is legally authorized by the Authorization to Use Military Force (AUMF) passed by Congress in September 2001, to say nothing about Guantanamo Bay and extraordinary renditions, it has become startling clear that the rules and definitions of war are increasingly difficult to ascertain.
Although Article 1, Section 8, Clause 11 of the Constitution clearly gives Congress (and only Congress) the power to declare war, it hasn't officially declared a war since World War 2. Yet the United States has been involved in a number of military conflicts, as small as Grenada and as big as Viet Nam, without any of them officially being "wars". It might look like a war, smell like a war, and have thousands of people die like in a war, but they are not "officially" wars unless Congress has declared it.
It's quite clear that the President, as Commander-in-Chief, should not need to get authorization from Congress for every single military operation, for example a reconnaissance flight over a (potentially) hostile nation. Yet at what point does the use of the military to engage in hostilies rise to the standard that it is Congress which is the authorizing agency? In other words, how big does the fight have to be before Congress needs to approve it and not the President?
Other nations engage in undeclared wars, each based on their own laws, but the United States chiefly relies on the War Powers Resolution. Essentially it says the President can begin an undeclared war so long as it either ends in less than 60 days or else Congress has to pass a resolution authorizing the "use of force". The War Powers Resolution came into law in 1973 after overriding President Nixon's veto.
Congress can pass any laws it likes (in a lawful manner that is) but it seems quite evident that the once clear separation of powers between the legislature and the executive has been seriously eroded, particularly on this issue. Who is it that can commit the military of the United States to engage in a conflict with another nation? If the Constitution originally gave the President to declare war, this wouldn't even be an issue today. Even more interestingly, every President since Nixon has taken the position that the War Powers Resolution is an infringement on the President's authority (as Commander-in-Chief).
Some people argue that since the Congress has to authorize the Use of Force, and also pass the legislation to fund the conflict, then the power to begin (or end) hostilies remains under their jurisdiction. That is true and I do not dispute it, except that there is much more to a war than simply the legal definition of one. And the current conflict slash war against Al-Qaeda blurs the line even further.
The Congress did authorize the Use of Force against Iraq in October 2002. Since Iraq is a sovereign nation, it will become clear (at some point) that the hostilies against that nation will end and so will the authorization to use force. But at what point will the hostilies against Al-Qaeda end? The September 2001 AUMF gives the president to use force against "those responsible for the attacks of September 11". Clearly that can't be interpreted too narrowly, as the hijackers themselves are already dead.
Does it only refer to the leadership of Al-Qaeda? If Osama bin Laden and his top 20 lieutenants are captured or killed, does that end the "war"? Or does every single member of Al-Qaeda have to be captured or killed, however many of them there are? And what about organizations which are "linked to" Al-Qaeda or separate organizations, like al-Zarqawi's group in Iraq? To put it more simply, if an Iraqi citizen who has never left Iraq is a member of Al-Zarqawi's group in Iraq, is he by definition a target of the AUMF?
The Letter of Marque and Reprisal could be a much clearer path to resolve this. To begin with, Congress is the initiator and issuer of all Letters of Marque and also decides who is authorized to "seize or destroy" specific personnel. It is quite within Congress' power to authorize certain individuals (for example mercenaries/contracters) to capture or kill (named) members of Al-Qaeda. If that sounds a little extreme, consider the fact that it might be cheaper to take this route as well as more effective, especially considering the fact that so far the entire American military has been unable to do this job. And some analysts say that chain of command and logistical reasons make the military too large and unwieldy to perform what is, after all, essentially a bounty hunting operation.
All that the Taliban government (or "government" if you prefer) did was shelter Al-Qaeda and allow them to operate on their soil. There is no evidence that a single Taliban member (who was not also a member of Al-Qaeda) had anything to do with the September 11, 2001 attacks. Why should the American military be involved in overthrowing the Taliban and hunting them down to this day? It is Al-Qaeda we want and Al-Qaeda we have not got. I cannot help but surmise that a small "army" of five to six thousand armed mercenaries/contractors could succesfully find and capture or kill the top 100 members of Al-Qaeda.
The president and many others keep referring to the United States being in a "war". But who is it we are in a "war" against? And what kind of "war" is it, since it certainly isn't a war declared by Congress. The United States military certainly has its uses in projecting American power overseas and fighting conventional wars against nation states, but has been pretty much a miserable failure in the only actors who have ever truly done harm to the United States in all of this: Al-Qaeda.
Anyway, it's just an interesting thought and one I wanted to explore. Your comments and thoughts are most definitely welcome.
Cross-posted from the doubleplusungood crimethink website Flogging the Simian
Peace