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Revisiting History: Terrorism, Pirates, Slavery and Letters of Marque and Reprisal

Tuesday, September 16, 2014
David Livingstone said it all the way back in the mid-1800's, but he could have been reacting to ISIS on YouTube today:

"To overdraw its evils is a simple impossibility,,,"

In his time Livingstone was talking of coming upon the "other" slavery... the slavery which originated with the Barbary Pirates raiding southern European villages, sometimes taking as many as six to seven thousand European Christians to North Africa as slaves in one raid.

Today, in light of the videos of ISIS beheading Western journalists and aid  workers, what is left for us is to come to terms with the origins of the word we have used to describe this: barbaric.  And when we consider how we first responded to this barbarism - at the hands of the Barbary Pirates - we will then revisit our Constitution and rediscover today what should have been rediscovered in September of 2001.

Letters of Marque and Reprisal

Most of us are familiar with how the U.S. Constitution vests in Congress to authority to declare war.  But what is less known is that this authority, in Article 1, Section 8, is one of three related authorities - declaring war, authorizing 'Letters of Marque and Reprisal' and making "rules concerning capture on land and water."  In their European use, these 'letters' essentially authorized what were called 'privateers' back then - what we might call 'contractors' today - to attack pirate vessels, and enemy ships in times of war.  In their European forms they would often be used for opportunistic ends, with some privateers actually fighting for both sides depending on which side presented the best opportunity for financial gain.  The Paris Declaration of 1856 ended privateering among the seven European signatories (although it would reappear in subsequent wars).  The United States was not a signatory to this agreement.

In the aftermath of September 11th, Ron Paul presented the 'September 11 Marque and Reprisal Act of 2001'.  It established findings concerning the 9/11 attacks and authorized the President:
to commission, under officially issued letters of marque and reprisal, so many of privately armed and equipped persons... with suitable instructions to the leaders thereof, to... seize... the person and property of [those]... who are responsible for the air piratical aggressions and depredations perpetrated upon the United States of America on September 11, 2001...
While the proposed legislation did not become law, the barbarism of ISIL merits a second look at this mechanism under the Constitution for addressing this scourge.

Terrorism as a Form of Piracy

The threat of terrorism faced by the free world is not substantively any different from the threat of piracy which has faced mariners throughout history.  We might see religiously-inspired terrorism on a spectrum of non-state violence with piracy occupying the economic side of the spectrum, political terrorism (e.g. the former Irish Republican Army) in the middle and Islamic radicalism on the other side of the spectrum.

The European agreement to forgo privateering was based on developments in international law and the formalization of relations between nation states.  At every turn, the law - whether civil or criminal - presumes a reasonable person who would consider the sanctions required by the law and be dissuaded from violating it.  In the world of international law, it is presumed that nations are persuaded by reason, and having considered the sanctions provided under international law, will be dissuaded from pursuing their national interests in violation of international norms.

It is hard to imagine a reasonable argument that ISIS can in any way be considered under this rubric.  Having chosen to act so far outside norms of human conduct - overdrawing its evil having become an impossibility - we simply cannot treat this threat as a 'law enforcement' problem.

National Security, Constitutional Government & Fiscal Sanity

To a great extent, we are war-weary.  And perhaps to an even greater extent we are war-leery... leery of what appears to be economic structures built intentionally to profit from war and its attendant requirements.  President (and former General) Dwight Eisenhower warned of what he called a "military-industrial complex" in his farewell speech on January 17, 1961.  It would seem that a return to 'privateering' would only make this worse.  The opposite is actually the case.

As defense programs are created to support military action, these often metastasize into programs in search of a mission.  Commissioning private forces, however - with logistical and intelligence support from the Department of Defense - does not create a new program eventually to devolve into just another bureaucracy looking for ways to spend money at the end of each fiscal year.  These Letters could be subject to renewal each year, and revoked upon open deliberation as to the achievement of their goals.

Unfortunately, this evil which cannot be overdrawn is not unprecedented; Dr. Livingstone actually saw worse along what was then the Barbary Coast.  If our freedom is anything it is the freedom to live at peace and without fear of what might happen on the next bus we ride or during the next visit to the mall.  We face the resurfacing of the original terrorist threat to America, a grave threat to this freedom.  But we...
must avoid the impulse to live only for today, plundering for our own ease and convenience the precious resources of tomorrow. We cannot mortgage the material assets of our grandchildren without risking the loss also of their political and spiritual heritage. We want democracy to survive for all generations to come, not to become the insolvent phantom of tomorrow... Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.
Senator Diane Feinstein should revise and resubmit Ron Paul's original Bill authorizing Letters of Marque and Reprisal against ISIS.

[For further reading: Pirates of Barbary: Corsairs, Conquests and Captivity in the Seventeenth-Century Mediterranean and Race and Slavery in the Middle East: An Historical Enquiry and The Stolen Village: Baltimore and the Barbary Pirates]

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