Feral Jundi

Wednesday, March 10, 2010

Letter Of Marque: The Constitutional Law And Practice Of Privateering, By Assistant U.S. Attorney Theodore Cooperstein

Filed under: Legal News,Letter Of Marque,Publications — Tags: , , , , , , , , — Matt @ 11:42 PM

  So this is interesting.  Here is a guy that works for the US Attorneys Office, who is former special forces and a reserve Army Intel guy, that writes this fantastic paper on the subject of Letters of Marque and Reprisal.  Does anyone else find that to be cool, or am I the only constitutional law geek that likes this stuff? lol

   The thing about it folks, is that I like the LoM, and I think it is just one more tool that can be used in this long and costly war.  It gives congress a means to connect with private industry in a way that will be cost effective, and certainly effective if done properly.  The one caveat though, is that congress needs to understand the mechanisms at play with this concept, and they must have the tools on how to properly construct a LoM. It would take some modern day modifications to get it just right, but it is certainly not impossible, and all the pieces are there to put it together.

   Which leads me to my next point.  By far, Feral Jundi is the place with the most comprehensive collection and commentary about the subject of the Letter of Marque and Reprisal. I know, I search this stuff relentlessly, and have collected it all.  I invite the readership to explore all of this good stuff, and ‘build a snowmobile’ out of it. Hell, write congress and let them know about the LoM and your thoughts about it. Remind them about Article 1, Section 8 of the Constitution and let’s get the word out. –Matt

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Letters of Marque and Reprisal: The Constitutional Law and Practice of Privateering

Theodore M. Cooperstein, U.S. Attorneys Office (SDFL)

Abstract

The United States Constitution grants to the Congress the power, among others, to issue “Letters of Marque and Reprisal.” Although the practice seems to have fallen into disuse in this century, it was an important tool of national power for the federal government created by the Framers, who placed great import on the federal government’s role in protecting international commerce and in enforcing international law.

Privateering played a significant role before and during the Revolutionary War, and it persisted in American history as an economical way to augment naval forces against an enemy in wartime. A significant outgrowth of the practice of privateering was the body of law resulting from prize court adjudications. United States courts, in deciding title to ships and goods taken prize, determined issues both of domestic and customary international law. In this manner the federal courts significantly shaped the role of international law in the United States jurisprudence as well as assured the role of the United States in the ongoing development of customary international law. Case law concerning prizes and privateering is accordingly a useful vehicle to examine the interplay of U.S. constitutional law and customary international law as they both developed through the Nineteenth Century.

Changes in the methods of warfare during the Twentieth Century diminished the role of privateering. But the Congressional authority to issue Letters of Marque and Reprisal remains. As a means to commission private actors to augment national forces in international crises, the Letter of Marque and Reprisal could yet have modern applications. It remains for innovative executive and legislative experiment to revive the ancient practice in a form befitting modern international problems.

Suggested Citation

Theodore M. Cooperstein, “Letters of Marque and Reprisal: The Constitutional Law and Practice of Privateering,” 40 J. Maritime L. & Comm. 221 (Apr. 2009)

Link to publication website here.

LinkedIn Page for Theodore M. Cooperstein here.

Download Pdf here.

Monday, February 15, 2010

Law Enforcement: The Heroin Road–A Lethal Business Model Targets Middle America

Filed under: Law Enforcement,Letter Of Marque,Mexico — Tags: , , , , , , — Matt @ 11:12 AM

   Fascinating.  These guys have definitely tapped into a drug dealing business model that is far more superior than the major cartels. Small de-centralized  businesses, all getting their heroin from one region in Mexico, and distributing it ‘pizza delivery style’. lol And get this, they are focused on customer service and satisfaction.  Did the Xalisco Boys read the Toyota Way or something?

   So how do you defeat this is my question? You could create doubt about the product they sell, kind of like how the fuel peddle issue is really tweaking Toyota right now. But eventually the product issues will be hashed out, and rumors squashed and business would crank up again.

    Another way, is to decentralize the drug war.  If you want to eradicate small groups, you need small groups who have the incentive to go after them.  A team of bounty hunters, if given sufficient authority necessary to go after these folks, could do the job just fine.  And if you attach a sizable bounty that makes this profitable for the hunters, or implement an awards system based on seized assets, then you could create an industry out of capturing these small time thugs. To really amp up the effectiveness of bounty hunters, they need to be able cross state lines.  Issuing Letters of Marque could be one way to give them that authority, or having some federal agency deputize these hunters. Perhaps some federal and state laws could be modified in order to make bounty hunting more effective?  In either case, you need to give bounty hunters protections that will give them sufficient authority to really go after these dealers.

   Like with the military and issuing Letters of Marque to individuals, law enforcement can have problems relinquishing authority to bounty hunters. It’s one part Max Webber, and one part ego. I happen to think that both groups can exist just fine, much like the Post Office and Fedex exist in the same market, and I think it is an excellent idea to create industries out of killing or capturing terrorists and pirates, or create industry out of capturing drug dealers. What bothers me about what the Xaliscos are doing, is they have decentralized the drug trade and have a business model that is scary efficient. Decentralizing the drug war against these folks is something that should be looked at if we want to keep pace with this business model. –Matt

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THE HEROIN ROAD

A lethal business model targets Middle America

Sugar cane farmers from a tiny Mexican county use savvy marketing and low prices to push black-tar heroin in the United States.

By Sam Quinones

First Of Three Parts

February 14, 2010

Immigrants from an obscure corner of Mexico are changing heroin use in many parts of America.Farm boys from a tiny county that once depended on sugar cane have perfected an ingenious business model for selling a semi-processed form of Mexican heroin known as black tar.Using convenient delivery by car and aggressive marketing, they have moved into cities and small towns across the United States, often creating demand for heroin where there was little or none. In many of those places, authorities report increases in overdoses and deaths.Immigrants from Xalisco in the Pacific Coast state of Nayarit, Mexico, they have brought an audacious entrepreneurial spirit to the heroin trade. Their success stems from both their product, which is cheaper and more potent than Colombian heroin, and their business model, which places a premium on customer convenience and satisfaction.Users need not venture into dangerous neighborhoods for their fix. Instead, they phone in their orders and drivers take the drug to them. Crew bosses sometimes call users after a delivery to check on the quality of service. They encourage users to bring in new customers, rewarding them with free heroin if they do. (more…)

Wednesday, February 3, 2010

Letter Of Marque: CATO–Privateering And The Private Production Of Naval Power

Filed under: Government Work,History,Letter Of Marque,Maritime Security,Publications — Tags: , , , , , , , , — Matt @ 10:05 AM

     Another great hidden gem of a paper about one of my favorite topics.  I also really perked up on the conclusions of the paper.  That privateering did not go away because the concept sucked. Nope.  It went away, because of competition with government owned Navies who wanted to do it all. It kind of reminds me of the ridiculous fears that popped up when privatized mail and shipping companies came on to the scene.

     The post office (government) folks actually had to compete with private industry for the business of the citizenry, and despite the early fears of those folks thinking they will lose their good deal government job, that competition only helped invigorate the innovation and business processes of both groups.  And best of all, the PO and private industry are still around and still slinging it out for that business.  If you also look at the PO, they are continuing to look more and more like UPS and  Fedex all the time.

    I also like the lighthouse example listed below as well. I think private naval and military companies can exist along side the militaries and navies they are serving just fine.  Hell, we are seeing that right now with the war, with thousands of contractors being used. So to take that one step further with issuing LoM’s to companies, to help even further in the war effort, would not be a bridge too far.  It would also provide a pretty nice cost savings for the government, and the military and navies of those governments would now have competition.

     That competition would be healthy in my opinion, and with carefully constructed LoM’s and today’s technological advances, it would not be a problem at all to keep tabs on companies issued LoM’s. And like Matt Armstrong mentioned, issuing LoM’s to today’s PMC’s would be a quick fix for keeping them in line.  Either abide by the wishes of a congress and their issued contract (LoM), or instantly be turned into a criminal organization for crossing the line. That would be some serious legal control if you know what I mean. It would also cut out inefficient contracting offices and weak laws that fall short of keeping companies under control. Just some thoughts on a different way of doing business.-Matt

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Privateering and the Private Production of Naval Power

Gary M. Anderson and Adam Gifford, Jr.

     The early history shows that, contrary to the belief of many economists, a lighthouse service can be provided by private enterprise. The lighthouses were built, operated, financed, and owned by private individuals. … We may conclude that economists should not use the lighthouse as an example of a service which could only be provided by the government. —Ronald Coase (1974) 

*****

Introduction

     Privatization and the “contracting-out” of services traditionally provided by means of governmental monopoly continue to attract increasing interest from both politicians and scholars. Many studies have found that private provision of certain goods and services tends to be more efficient than comparable arrangements provided directly by the government.

     One of the very few areas relatively untouched by the recent attempts at privatization, or contracting-out, of governmental services is the military. Although some economists have argued that the priva-tization of major elements of the provision of national defense would be both feasible and efficient, in modern times military forces are essentially a pure governmental monopoly. Not only are private military forces illegal, but the military force maintained by the govern-ment is invariably wholly owned and operated by the government. National defense, like lighthouses, frequently serves as a stylized illustration of the need for governmental provision of “public goods” in economics textbooks.

(more…)

Friday, January 15, 2010

Mexico: Cartel Inc.–In The Company Of Narcos

Filed under: Law Enforcement,Letter Of Marque,Mexico — Tags: , , , , , , — Matt @ 10:12 AM

   This is a fascinating look at the inner workings and organizational methods of a drug cartel.  This is pure free market warfare, but practiced by thugs.  This is like pre-Westphalia stuff, and certainly deserves some attention if you are a student of the drug war and narco-terrorism.

    I also look at these cartels like big juicy targets, over flowing with cash and assets that could end up in the pockets of privateers given authority to take them down. That is how you take down folks who are playing by pre-Westphalia rules and living without any regards to the rule of law or borders. –Matt

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Cartel Inc: In the company of Narcos

Jan 14 2010

By Robin Emmott

RIO BRAVO, Mexico (Reuters) – Late last year, Mexican soldiers raided a house in Rio Bravo, a dilapidated town just across the border from Texas. What they found was a kind of “back office” that belonged to the Gulf cartel, the country’s most violent drug gang.

Inside the gray, one-storey house, clerical workers helped run cocaine shipments hidden in U.S.-bound avocado trucks from southern Mexico, said soldiers on patrol in the town. The office tracked the drug movements in trucks equipped with GPS and progress was logged into spreadsheets on laptops.

The Gulf cartel as well as its hitmen often refer to themselves as “The Company” — and not without reason. Often overlooked amid all the violence and chaos they engender is the fact that Mexico’s drug cartels are capably run businesses that have turned into some of the most lucrative criminal enterprises ever.

(more…)

Thursday, January 14, 2010

Publications: Is The Privatization Of Force Organic To Western Liberal Democracy?, By Matthew C. Armstrong

Filed under: Letter Of Marque,Publications — Tags: , , , , — Matt @ 12:23 PM

   Ok folks, this is cool.  Sometimes I stumble upon stuff that really gets the juices flowing, and this is one of those deals.  Matt has written a very interesting paper that basically talks about using the Letter of Marque as a mechanism to control and manage PMC’s.  That with our current system, there is not an efficient means of putting checks and balances on what PMC’s do in the name of the country, and that a direct link with congress, via the LoM, would be far more efficient. It would help to alleviate many of the problems that we are bumping up against now.

   This was written back in 2007, but I still think the ideas are spot on, and something to rally around. I also have Matt’s permission to post this. Be sure to check out Matt’s excellent blog called Mountain Runner.  It is a fascinating look at strategic communications with tons of conversations about power and influence.

   By the way, I have also started a Letter of Marque category, just to add another means of easily finding information about the concept. You can also use the Feral Jundi search box, or hit one of the tags. The search box would be the best to retrieve other past discussions about the LoM. –Matt

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Is The Privatization Of Force Organic To Western Liberal Democracy?

By Matthew C. Armstrong

Abstract:

     Popular wisdom maintains that the State holds a monopoly on the use of force and that private military forces are usurpers of this monopoly. Popular wisdom also suggests the use of private military forces is antithetical to the idea of liberal democracy. A review of history shows neither of these are true. By bringing history back into the discussion it is clear the use of private military forces results from decisions based on political economy independent of liberal democratic theories.

     This paper reviews the reality of private military forces and suggests the marginalization and disfavor of mercenaries on land and sea was the result of a political economy and not liberal democratic theories. Reaching back four millennia before Westphalia gives witness to much the same. Sealing off the present from the past leads to false assumptions of the factors that led to the marginalization, but not disappearance, of private force in the nineteenth century. This bracketing of historic events and processes blinds us and prevents seeing and understanding engines of change. Investigating history and it is apparent the history of mercenaries on land and sea begins with the history of war and was subject to changing infrastructural power of the state. The evolution and introduction of liberal democratic principles had little impact on the wholesale removal of mercenaries from the battlefield.

     The return of mercenaries today is marked by systemic changes similar to those of the nineteenth century that pushed private military forces out of mainstream use. However, the return is not complete as the institutional and theoritical structures of before have not been adopted, especially in the central example of the paper, the United States. Whereas the US Congress explicitly authorized and licensed private military force in the past it has implicitly done so now. Before, it explicitly controlled the contracts and monitoring. Today, it does nothing. Through public law and investigative powers, Congress has the power restrict the use of PMCs. These powers were exercised before in the interest of the state to protect the national execution of US foreign policy. The failure to act today is an abrogation of the responsibility intended through words and deeds of the Founding Fathers in striking parallel to the culpability at the root of Machiavelli’s misdirected warning. As war is a continuation of politics and military force is central to this, it is understandable private military companies are an increasingly important solution tool in the toolbox of US foreign policy in an era of accountability. However, unlike the past, oversight is absent and the agent may represent the principal in distasteful ways without repercussion or acknowledgement.

     The return to mercenaries has not been complete in that the rules governing their use by the employer have not been resurrected. This is not a failure of democracy, liberal or not, but a failure of the hiring client. In fact, in many ways private military companies today have re-democraticized war by allowing almost anyone to participate as they did in the past. It might also be said that instead of outsourcing, we have temporarily “in-sourced” war for the past one hundred and fifty years. Perhaps with that in mind, we can get beyond the hyperbole and discuss privatization in terms of real impact while acknowledging that many of the faults today are rooted in the use and not existence of private forces.

View paper here.

Link to Mountain Runner blog here.

From the author:

“Go ahead and post the paper, but please include the caveat that the author understands it is still a draft, at least in presentation. The arguments are sound but there are likely errors in grammar and punctuation. I do not have any updates nor do I plan to make any.”

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