Archive for category Letter Of Marque

Letter Of Marque: Title 33, Chapter 7 Of The US Code–Regulations For The Suppression Of Piracy

May 21

Posted by Matt in Letter Of Marque, Maritime Security, Publications | No Comments

Yep, this exists, along with Article 1, Section 8, Paragraph 11 of the US Constitution. I thought this was pretty cool, because we definitely have laws on the books for getting private industry involved with the suppression of piracy.

I also liked these laws, because they defined captures. That the US can authorize private industry for capture of pirates. This is important to note, because at this time, there is only a Defense Industry in place for the suppression of piracy. Meaning, companies are only providing guards to defend vessels with the possible use of force. No one has the authority to arrest or capture pirates.  So basically we have a system in place that only allows for the ‘killing’ of pirates in the course of the defense, but god help us if private industry actually arrested folks?

By arresting pirates, we can find out information about pirate operations and we can keep these thugs out of the business of piracy by letting them rot in a prison. It would also give companies some authority for when pirates surrender. An effective Offense Industry could profit from the capture (or killing if pirates fail to surrender and become violent), and thus removing those threats from the seas. I should also note that the US congress used to pay privateers for the capture of British sailors and seamen during the War of 1812 using a bounty system. In other words, companies must be compensated if you want them to actually arrest and detain pirates. Without incentive and and well defined legal authority, ship owners and security guards on these boats will want nothing to do with capturing anyone.

Or we can continue to promote this current Defense Industry where companies either kill or wound pirates in fire fights and then allow pirates to escape–so they can go attack some other vessel. Hell, why would companies be compelled to kill pirates in the first place with such a system?  Killing pirates or arresting them, would eliminate the sweet deal ‘Defense Industry’ we have that benefits from having active pirates.  Something to think about when talking about when dealing with today’s piracy issues. -Matt

 

Title 33, Chapter 7 Of The US Code– Regulations For The Suppression Of Piracy

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Maritime Security: The Insanity Of ‘Catch And Release’

Apr 10

Posted by Matt in Legal News, Letter Of Marque, Maritime Security | No Comments

A EU NAVFOR spokesman was unable to provide Sky News with a figure for how many suspected pirates had been returned to Somalia without charge.
“I don’t have the number for those returned to Somalia – a number of reasons but largely because it was not initially considered important to maintain the number,” the spokesman told Sky News. -Link to quote here.

This is the part of our global anti-piracy campaign that absolutely kills me. It’s as if these navies are sport fishermen, and they are releasing their catch so it can grow bigger, and spawn more fish, so they have more fish to ‘catch and release’ in the future.

Now of course we are dealing with the legal mechanisms, or lack there of, of each country that has laws that deal with piracy.  So when a navy captures a pirate or suspected pirate, those navies are operating under the guidelines of those laws. Because these countries have not implemented sound anti-piracy laws, we unfortunately see pirates captured and then release because of some legal mistake or loophole. Or, those that did the arresting of the pirates did not capture and detain properly, or properly document or obtain witnesses, etc.

So who are the worst offenders of ‘catch and release’?  That is a good question and I tried to do a little search for any comprehensive reports on this problem. Below, I have found a few recent articles on Canada and the UK, and their deficient legal mechanisms in place for prosecuting pirates. Here is a sample for the UK.

Fewer than one in every five suspects picked up around the Horn of Africa over the past four years have been prosecuted for piracy-related offences, the Ministry of Defence has admitted. The figures will fuel growing criticism of Britain’s involvement in the anti-piracy operation.
Official MoD figures obtained by The Independent on Sunday show the Royal Navy has boarded 34 vessels suspected of piracy in the Indian Ocean since volunteering to lead Operation Atalanta, the EU’s first naval mission, in 2008. However, on all but six occasions, the gangs rounded up were taken to the nearest beach and released – despite often being caught with equipment including guns and ladders. A list of boardings since November 2008 shows that the navy has detained a total of 279 likely pirates but allowed 229 of them to go free, some in groups of up to 17 at a time. Fifty more were sent on for prosecution in Kenya, the Seychelles or Italy.

Amazing. This is just insane, and this practice of catch and release must end.  Also, I wanted to mention that all the nations involved have had similar catch and release stories, so the UK or Canada are not the only ones. I have been documenting this for awhile now, and it is very frustrating.

I also wanted to mention that we are missing opportunities of detention by not allowing private security companies to detain and arrest these pirates. Every engagement could turn into an arrest and a removal of these criminals off of the high seas. By issuing Letters of Marque to PSC’s or the captain on these boats, nations could give them the same arresting powers that their navies currently have.

Within the terms of the LoM, you can define exactly how arrests are to be done and the specific rules for detention and transportation of prisoners. A country can also offer bounties for each pirate that was legally detained and prosecuted. We have GPS and video filming capability, and these can all be tools required under the terms of the LoM in these modern times.

As it stands now, security companies are executing the ultimate in extreme justice on the high seas. That would be actually killing pirates during the defense. So the question I have is why is killing pirates more appropriate than detaining them? If anything, a security company should have the option of capturing those pirates instead of just killing them. It would also take a load off of the larger navies who are tasked with anti-piracy.

So why capture them alive? Well, for intelligence purposes, a pirate that is alive and talking, is far better than a dead one. Also, by capturing them, we take them out of the game.  Of course killing them takes them out of the game permanently, but sometimes killing these pirates is not feasible within the course of current rules of engagement.

In one scenario, what if the pirates attacking the ship decided to stop their attack and just give up for whatever reason? Or during their attack, their engine fails and they get within killing range–so they raise their white flag right there. Does an armed guard execute these pirates who are trying to give up, or do they detain them? Or do we just let them go?  And also, if that pirate vessel is no longer sea worthy because armed guards made it so, and now pirates are sinking, is there any obligation at all to save and detain those pirates? These are all questions that could be answered with an effective Letter of Marque regime and bounty program, that makes capturing pirates something of interest to security companies on these vessels.

I mention bounty, because even with a LoM, security companies will not be entirely motivated to detain. An effective bounty or reimbursement program would be necessary to make up for the costs of such an offense industry. You must also incentivize the process in order to create a vibrant offense industry. A company would be risking life and limb to go that extra mile to capture a pirate crew, so companies must have some mechanism in place for compensation.

So those are my thoughts on the whole thing. The laws dealing with piracy need to catch up, and we also must look at legal mechanisms that will help to make the elimination of piracy more efficient and effective. -Matt

 

4999b91530e9c50fb5494ac60865 grandeMaritime Security: The Insanity Of Catch And Release

Navy frees four out of five suspected Somali pirates
Britain criticised for ‘particularly poor record’ in international crackdown on Indian Ocean piracy
Brian Brady
Sunday, 8 April 2012
Hundreds of suspected pirates arrested by the Royal Navy off the coast of East Africa have been immediately set free – to continue threatening merchant vessels in one of the world’s busiest shipping lanes. Fewer than one in every five suspects picked up around the Horn of Africa over the past four years have been prosecuted for piracy-related offences, the Ministry of Defence has admitted. The figures will fuel growing criticism of Britain’s involvement in the anti-piracy operation.
Official MoD figures obtained by The Independent on Sunday show the Royal Navy has boarded 34 vessels suspected of piracy in the Indian Ocean since volunteering to lead Operation Atalanta, the EU’s first naval mission, in 2008. However, on all but six occasions, the gangs rounded up were taken to the nearest beach and released – despite often being caught with equipment including guns and ladders. A list of boardings since November 2008 shows that the navy has detained a total of 279 likely pirates but allowed 229 of them to go free, some in groups of up to 17 at a time. Fifty more were sent on for prosecution in Kenya, the Seychelles or Italy.
The Government has acknowledged the “catch and release” strategy is often an “unsatisfactory outcome”, although ministers also maintain it helps to disrupt pirate networks.

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Publications: Structuring A Sustainable Letters Of Marque Regime, By Lieutenant Todd Hutchins

Mar 23

Posted by Matt in Industry Talk, Legal News, Letter Of Marque, Publications | No Comments

A big hat tip to David Isenberg for finding this paper and writing an excellent article about it. Also bravo to the California Law Review for publishing this paper and hopefully between this site and David’s, we can really promote this thing. I am always on the lookout for modern legal interpretations of, and the possible uses for the LoM.

It is also cool that the author of this paper is an officer in the US Navy and a current JAG student. Maybe he can come up and talk a little about any feedback he has received for this paper, and the reason why he chose this particular topic.

Now for a couple of points of interest. Lt. Hutchins is more focused on an international LoM system, as opposed to countries issuing LoM’s. You know, I don’t think this approach would work, just because personally speaking, I would rather answer to the laws and customs of my own country versus answering to an international court. What is to prohibit any biases towards me and my nationality in such a international court?  So personally, I would much rather have a LoM issued by a country whose legal system I trust and would give me the best odds in a trial of my peers–from my country.

I still think companies would seek an internationally issued LoM. Especially if the profit margin was there. If it is not, then the risk will definitely not equal the reward and this industry will not thrive. You really need to make the enemy into the ‘Blufin Tuna’ or ‘Buffalo’ of prizes.

Which brings me to my next point. Offense Industry requires a strong profit motive for the destruction or capture of a declared enemy. The reward must equal or be greater than the risk in this case. I tend to lean towards greater than the risk, just because we want extreme competition for this highly valuable enemy.

So the question with this is if the enemy has enough assets that can be seized and decided upon in a prize court. The guys with the money are on land or hiding out in Dubai or wherever. How will a company be able to seize their assets on the international stage?

Now privateers like Captain Morgan did do land raids to capture enemies and their assets. He was quite successful at it, and if we were to target Somali pirates, then allowing companies to raid wealthy Somali investors in Somalia or elsewhere would be key. But then that would require special agreements with those countries that these investors are hiding in. The LoM would have to be very specific and comprehensive in this regard.

Or, the issuing party could throw in bounties and create a false market out of the whole thing. To artificially attach value to these targets, as well as allow companies to seize assets. That to me would be optimum, just because you really have to sweeten the pot for companies to get involved with this thing. Perhaps the 10 percent that governments would receive via prize courts, would go back into the pot for bounties and costs of running prize courts?  Raising money for bounties is a factor when creating artificial values of targets.

I also applaud the author for identifying how expensive the current Defense Industry is for maritime security. I have mentioned in the past that DI’s are costly, and they do nothing to eliminate the problem. If anything, DI’s profit from the continuation of war or piracy, and it is against the best interest of these participants to remove the very thing that gives them their reason for existence. But DI’s have their place, and I believe that in order to reduce the costs of DI, you need to also implement an offensive capability. You will always need guards to protect that in which you love, but you must also have a force tasked with hunting the bad guys–to keep them off balance and put them on the defense. And ultimately, you would like to make piracy into a very unprofitable game for all parties thinking about getting into that business.

Finally, I would like to add one more deal to this review, just to emphasize the significance of profit and reward in warfare. This quote comes from Sun Tzu.

Now in order to kill the enemy, our men must be roused to anger; that there may be advantage from defeating the enemy, they must have their rewards…Therefore in chariot fighting, when ten or more chariots have been taken, those should be rewarded who took the first. Our own flags should be substituted for those of the enemy, and the chariots mingled and used in conjunction with ours. The captured soldiers should be kindly treated and kept….This is called, using the conquered foe to augment one’s own strength.- Paragraphs 16, 17, 18, Chapter 2, ‘Waging War’.

Even Sun Tzu understood the value of reward in war.  Might I add that the interpretation of ‘rewards’ refers to spoils, and not some ideological reward of just ‘winning’. Although that has it’s place for incentive, but feeling good about a win does not pay the bills as they say. lol

I should also note that Sun Tzu also delved into the concept of the cost of protracted war. It is expensive, and if there is no element of a strategy focused on eliminating an enemy, and industry is only used for defense, then the costs will continue to drain the treasures of those nations and companies with interest in the matter.

There is no instance of a country having benefited from prolonged warfare…It is only one who is thoroughly acquainted with the evils of war that can thoroughly understand the profitable way of carrying it on. -Paragraphs 6,7, Chapter 2, ‘Waging War’.

That pretty much sums up why wars should be fought as quickly as possible, and why there should be thought about creating an industry that profits from ending it, and not ‘carrying it on’. Something to give balance or even counter strong DI’s that come about from prolonged warfare. -Matt

 

 

Structuring A Sustainable Letters Of Marque Regime: How Commissioning Privateers Can Defeat the Somali Pira…

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Technology: Dr. Regina Dugan Speaks At DARPA Cyber Colloquium, Sam Quint Reponds….

Mar 16

Posted by Matt in Funny Stuff, Letter Of Marque, Technology | No Comments

Boy, after listening to this, I am wondering if DARPA is reading the blog? I have talked about the Cyber Lance in the past, as well as Cyber Privateering and the issuance of the Letter of Marque, and the language I am hearing in this talk sounds a lot like Offense Industry talk to me. All I know is she really wanted to emphasize the complexity of the commons called cyber space, and that ‘capability’ must be explored for the defense and offense in such an environment.

I say offense industry because DARPA has been really exploring the possibilities for bounties. They also use rewards for contests as a prize for innovation. I know they are aware of the Letter of Marque concept because Michael Hayden brought it up in a speech, and myself and the Morgan Doctrine have been bringing it up in posts.

What is really interesting is that Dr. Dugan is heading off to work for Google. Google would be a fantastic place to work at, to truly explore the various ways to combat cyber criminals and enemies. She would also get an inside view as to what Google thinks is the answer.

As to my commentary on the whole thing?  I think I will let Sam Quint speak for me below…. lol -Matt

 

 

The honorable Sam Quint replies….

 

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Letter Of Marque: US Congressional Instructions For Privateers, 1780

Mar 9

Posted by Matt in History, Letter Of Marque | No Comments

I wanted to make sure that folks could really get into the document here. If you cannot read it, then go to this link and you might be able to see it better. Very cool and enjoy. -Matt

Edit: 03/10/2012 -Also, check out all the documents that the Library of Congress has scanned or linked to in relation to ‘privateering’ and the ‘letter of marque’. Excellent resource if you are studying the historical use of privateers in war.

 

US Congressional Instructions For Privateers, 1780

US Congressional Instructions For Privateers, 1780, Page 2

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Letter Of Marque: World Food Programme Privateers?

Jan 18

Posted by Matt in Africa, Letter Of Marque, Publications | 2 Comments

Yep, in this conference, the idea of using privateers and the Letter of Marque was brought up as a means of protecting World Food Programme vessels. How cool is that? Not only that, but the idea was brought up in a conference filled with Ambassadors, academics, UN folks, PMSC folks, NGO’s etc. Here is a quote and page number if you would like to check it out.

Potential problems with the use of PMSCs in counter-piracy efforts, according to Mr Stupart, include firstly the issue of legality, where the use of PMSCs under current international maritime law is not very clear. In order to overcome this issue, calls for the reintroduction of the Letters of Marque have been suggested. The letters of Marque refers to the definition of piracy, the jurisdiction being decided upon, and the rules of engagement being determined by the flag state under which the vessel operates. Another issue raised by Mr Stupart relates to the possible escalation of violence. If pirates feel a risk due to the arming of vessels with PMSCs, they may adopt more aggressive tactics. This will be a major problem, especially for all merchant vessels that are not escorted or guarded by PMSCs. -From the section WORLD FOOD PROGRAMME PRIVATEERS – OUTSOURCING HUMANITARIAN AID IN THE GULF OF ADEN MR JOHN STUPART, Page 18

The other interesting thing about this conference is that it goes into some of the details of PMSC involvement in Africa. Places like the Sudan or Somalia, and that is great to hear. Most of all, the support for this industry was favorable as well. We are the go to forces for protecting these humanitarian operations and it was clear to me that the conference did recognize our value.

On the other hand, the recurring theme throughout the conference was the lack of legal authority or accountability with the various PMSC’s in Africa. So yes, the humanitarian assistance industry wants to use our industry, but they also do not want to get in trouble legally because of the actions of their security forces.

And of course, the classic principal agent problem comes up, and that is a constant theme everywhere in the world when it comes to contracting. A poorly written contract, a lack of oversight over the project, etc. are all issues that need to be worked out and discussed so you can responsible contract the services of a good PMSC.

Here is another quote in the conference that summed up quite nicely why there is such an interest and demand for PMSC’s in Africa.

Mr Chris Kwaja began the fourth session with an interrogation of the rationale and centrality of non-state military and security providers in the provision and delivery of humanitarian assistance operations in Darfur/Sudan. He argued that the rise of PMSC involvement in humanitarian assistance operations was due to the rising amount of armed conflicts and the inability of states to contain these conflicts, the decline of state troop contributions, the success and popularity of neo-liberalism which encouraged private sector involvement and the weakness of states to fulfill their constitutional obligations of security provision for the masses. Mr Kwaja also stated that PMSCs were arguably able to fill the capacity gap in terms of high-tech skill provision, that national militaries lack. -From the section FROM COMBAT TO NON COMBAT ACTION: PMSCS AND HUMANITARIAN ASSISTANCE OPERATIONS IN DARFUR/SUDAN MR CHRIS KWAJA, Page 15

This is why I perked up with what was discussed in this conference, along with the mention of the Letter of Marque. To me, these folks were not focused on trying to get rid of us, but on’ how to use us’. Check it out. -Matt

 

Conference report on the involvement of the private security sector in humanitarian assistance operations i…

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Legal News: Congress Legalizes Cyber War

Dec 18

Posted by Matt in Legal News, Letter Of Marque, Technology | No Comments

In language discussing the bill, conferees say that because there is no historical precedent for what constitutes traditional military activities in cyberspace, “it is necessary to affirm that such operations may be conducted pursuant to the same policy, principles and legal regimes that pertain to kinetic capabilities.”

This is big news, and historical. The rules and laws of kinetic war now apply to Cyber War, and this brings up all sorts of ideas. For example, will we see more Cyber Lance type activities?  Maybe a US special forces team combined with civilian hackers to locate and kill/capture enemy hackers or whomever?  Who knows, and who knows how these new rules will apply?

Perhaps we will see the same issues that have popped up for today’s modern wars. Especially with the hybrid of private and public forces in conflict. I say this, because the US does not have the monopoly on ‘hacking force’. If they want the best, they can try to develop that capability internally, but inevitably they will have to reach out to private companies or individuals that are experts in these fields and pay them to do it.

Here is one quote below that really perked me up. Check it out:

Since the military cannot afford to pay enough to recruit qualified software and Internet engineers for this sort of work, it has turned to commercial firms. There are already some out there, companies that are technically network security operations, but will also carry out offensive missions (often of questionable legality, but that has always been an aspect of the corporate security business.)
Some of these firms have quietly withdrawn from the Internet security business, gone dark, and apparently turned their efforts to the more lucrative task of creating Cyber War weapons for the Pentagon. It may have been one of these firms that created, or helped create, the Stuxnet worm.

I read this and thought, why not just fire up the Letter of Marque and Reprisal and give these firms the legal authority and protections necessary to take part in offensive operations?  The LoM is sitting right there in the War Powers clause in the US Constitution, and it just seems to me that we are missing the boat when it comes to doing this stuff. We could be legally authorizing the companies to steal funds and intellectual property from all sorts of enemies out there, and label these companies cyber privateers. (which if the military helped at all, would those commanders or the US be entitled to a cut? lol)

My other thought about all of this is when will we see a Cyber Weapon used in such a way as to actually kill like a real weapon?  And with this public/private partnership we will have, we could potentially see IT Security companies build these weapons, and possibly even launch it. Just imagine if Stuxnet actually caused deaths in some weapons plant or nuclear facility? That would definitely put the ‘War’ in Cyber War. Very interesting….-Matt 

 

America Legalizes Cyber War
December 18, 2011
The U.S. Congress approved a new law on December 14th that allows the Department of Defense to conduct offensive Cyber War operations in response to Cyber War attacks on the United States. That is, the U.S. military is now authorized to make war via the Internet. The new law stipulates that all the rules that apply to conventional war, also apply to Cyber War. This includes the international law of armed conflict (meant to prevent war crimes and horrid behavior in general) and the U.S. War Powers Resolution (which requires a U.S. president to get permission from Congress within 90 days of entering into a war).
The U.S. Department of Defense has long advocated going on the offensive against criminal gangs and foreign governments that seek (and often succeed) to penetrate U.S. government and military Internet security, and steal information, or sabotage operations. Over the past year, and without much fanfare, the Department of Defense has been making preparations to do just that.

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Books: Samuel Smedley, Connecticut Privateer, By Jackson Kuhl

Nov 15

Posted by Matt in Books, History, Letter Of Marque | No Comments

Thanks to Kyle over at the Feral Jundi Facebook Page for sending me this link. This interview brings up some very interesting aspects of privateering back then, and I was very interested in the offense industry elements.

In the interview below, the author really delves into the prize courts, the shares that crews and owners would get from prizes, and the competition between Connecticut, Continental Congress, and the other states and how that would impact privateers like Samuel Smedley.  Meaning all of these states and the Continental Congress were creating laws and regulations that would impact their specific offense industries in the war. That the group that offered the best business environment for privateers, would get the most and best privateers in the country. Pretty cool.

I have not read this book, but I did find a copy of it in Amazon and put it in the Jundi Gear store if anyone is interested. Check it out. -Matt

 

samuel smedley connecticut privateer jackson kuhl paperback cover artBooks: Samuel Smedley, Connecticut Privateer, By Jackson Kuhl

Samuel Smedley, Connecticut Privateer
By Jackson Kuhl
Book Description
Publication Date: June 7, 2011
From the shores of Long Island Sound to the high seas of the West Indies, against British warships and letters of marque, Samuel Smedley left a stream of smoke and blood as he took prisoners and prizes alike. At twenty-three years old, Smedley, a Fairfield, Connecticut native, enlisted as a lieutenant of marines on the Connecticut ship Defence during the American Revolution. Less than a year later he was her captain, scouring the seas for British prey. Author Jackson Kuhl delves into the life and times of this Patriot, sea captain and privateer.

 

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Maritime Security: Britain To Allow Armed Guards To Combat Sea Piracy

Oct 30

Posted by Matt in Legal News, Letter Of Marque, Maritime Security, United Kingdom | No Comments

Outstanding news. Glad to see Britain taking the necessary steps to legalize armed guards on boats. It just makes sense, and seeing how most of the maritime security companies working right now are British, this will be an added boost.

Now the question I have is how will these new laws mix with Britain’s position on privateers or the Letter of Marque? They are a signatory to the Paris Declaration Respecting Maritime Law. No telling what other treaties they have signed, and how these sanctioned armed guards fit into that bigger picture?

I would also be interested to see the firearms regulations on what the companies can actually use for protection duties. Remember, today’s pirates are using weapons of war, not firearms used for hunting. You must give these guards weapons that will give them advantage, or at least match the pirate’s fire power. Anything else is just unacceptable in my view. -Matt

 

Britain to allow armed guards to combat sea piracy
By DAVID STRINGER
October 30, 2011
Ships sailing under Britain’s flag will be permitted to carry armed guards on some perilous routes to combat the threat from pirates, the prime minister said Sunday.
David Cameron said Britain was reversing its opposition to the use of weapons aboard ships, amid mounting concern about the risks of vessels and crew being seized by pirates — particularly off Somalia’s coast.
Cameron’s office said the use of weapons on British-flagged ships is banned under firearms laws, but that new rules would be in place within a month.
Britain’s announcement follows the decision in February of the International Chamber of Shipping, the major trade association of ship owners, to support members hiring private security companies to provide protection.
“The evidence is that ships with armed guards don’t get attacked, don’t get taken for hostage or for ransom, and so we think this is a very important step forward,” Cameron told BBC television during a visit to a Commonwealth summit in Australia, where he discussed the issue with leaders from the Seychelles and Mauritius.

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Legal News: Does The OMB Policy On Inherently Governmental Conflict With The Constitution?

Sep 29

Posted by Matt in Legal News, Letter Of Marque | 3 Comments

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. – The enumerated powers of congress, war powers clause, Article 1, Section 8, Paragraph 11 of the US Constitution.

The other day I came across the OMB’s new policy letter on what the government deems ‘inherently governmental’.  I posted the Apendix A portion, because that has the most relevance to this discussion and to our industry.  For the most part, self defense or defense of others is not a problem, but contractors engaging in combat is.

With that said, let’s look at the legal definition of the Letter of Marque and Reprisal and the various sources that confirm that definition:

LETTER OF MARQUE AND REPRISAL, War. A commission granted by the government to a private individual, to take the property of a foreign state, or of the citizens or subjects of such state, as a reparation for an injury committed by such state, its citizens or subjects. A vessel loaded with merchandise, on a voyage to a friendly port, but armed for its own defence in case of attack by an enemy, is also called a letter of marque. 1 Boulay Paty, tit. 3, s. 2, p. 300. 2. By the constitution, art. 1, s. 8, cl. 11, congress has power to grant letters of marque and reprisal. Vide Chit. Law of Nat. 73; 1 Black. Com. 251; Vin. Ab. Prerogative, N a; Com. Dig. Prerogative, B 4; Molloy, B. 1, c. 2, s. 10; 2 Woodes. 440; 6 Rob. Rep. 9; 5 Id. 360; 2 Rob. Rep. 224. And vide Reprisal.

And then let’s look at the legal definition of combat.

COMBAT, Eng. law. The form of a forcible encounter between two or more persons or bodies of men; an engagement or battle. A duel.

So you can see here that in fact, the ability to grant a Letter of Marque and Reprisal is an enumerated power of congress. That by definition, authorizes private individual to take the property of a foreign state or the citizens and and subjects of that state. That is not self defense. This is totally a forcible encounter between two or more persons or bodies of men.

Now onto the question. How is the policy of the OMB on what is inherently governmental, not conflict with the constitution? You have one agency saying that a private individual engaging in combat for this country is not authorized, but you have our top legal document of the land saying that private individuals can participate in combat and seize the assets of an enemy if given a license or Letter of Marque by congress.

Or legally agencies must abide by this policy, but congress still has this right to issue the LoM?  Anyone want to take a swipe at this one? lol  -Matt 

 

OFFICE OF MANAGEMENT AND BUDGET
Office of Federal Procurement Policy
Publication of the Office of the Office of Federal Procurement Policy (OFPP) Policy
Letter 11-01, Performance of Inherently Governmental and Critical Functions
AGENCY: Office of Management and Budget, Office of Federal Procurement Policy
ACTION: Notice of Final Policy Letter
In addressing security operations, for example, the list
identifies where security operations would be inherently governmental in connection with
combat. This should not be read as a determination that all security performed in any
hostile situation other than actual combat may be performed by contractors. Rather it
means that those situations should be evaluated on a case-by-case basis to determine what
security functions and activities are inherently governmental and what can be performed
by contractors with appropriate management and oversight.

Appendix A. Examples of inherently governmental functions
The following is an illustrative list of functions considered to be inherently governmental.
This list should be reviewed in conjunction with the list of functions closely associated
with inherently governmental functions found in Appendix B to better understand the
differences between the actions identified on each list.

Note: For most functions, the list also identifies activities performed in connection with
the stated function. In many cases, a function will include multiple activities, some of
which may not be inherently governmental.

1. The direct conduct of criminal investigation.

2. The control of prosecutions and performance of adjudicatory functions (other than
those relating to arbitration or other methods of alternative dispute resolution).

3. The command of military forces, especially the leadership of military personnel who
are performing a combat, combat support or combat service support role.

4. Combat.

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