This is an excellent treatment of the subject. If you have the time to review the legal side of the LoM and all of it’s modern day implications, I highly recommend reading this. One note for the author though. During World War Two, Congress issued a LoM, and that technically was the last one issued. Eeben might be able to add some more corrections in reference to EO, but that was about it for corrections. I might have added some more relevant companies for the discussion of contractor capability, but that was about it. –Matt
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A Check on Faint-Hearted Presidents: Letters of Marque and Reprisal
By William Young
Volume 66, Issue 2, Spring 2009
Washington and Lee University School of Law
VII. Conclusion
Letters of marque and reprisal provide a method with which Congress can check a lack of presidential initiative in future military conflicts. Within certain constraints, the Constitution allows Congress to issue letters of marque and reprisal to private contractors, allowing Congress to enlist private contractors to accomplish military objectives that the President refuses to support. Congress’s decision to issue letters of marque and reprisal against the will of the President,
however, will be a balancing act of risk and reward. The risks are many, substantial, and unpredictable, and may involve great injury and serious consequences both domestically and internationally. The injury, or potential injury, to the United States must be so great that Congress feels it has no choice but to accept these risks in an attempt to prevent or redress that injury.
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(A section talking about the Executive Outcomes example and funding for such a thing.)
Second, the lack of funding requirements (other than the limitation that the U.S. government cannot fund the privateers) might give Congress greater operational latitude in issuing letters of marque and reprisal. As noted in the
discussion of EO, private firms are capable of altering the military landscape on a regional level.170 One could envision a scenario in which Congress, against the President’s wishes, feels that a large scale military action is necessary.
For
instance, an extremist organization seizes control of a U.S. ally’s oil fields in the Middle East. Congress and the allied nation would presumably want the ally to have control of those assets, yet it might be difficult for a private
contractor to find enough funding domestically in the U.S. to support a major operation against the extremists. Funding might be easier to come by if, reminiscent of EO’s initial funding in Sierra Leone, the initial investors have a
guarantee of a percentage share of the captured oil assets if they are returned successfully to the allied nation’s control by the private contractor.171 One might question why the United States should become involved at all in this scenario.
If a private investor makes a deal with a foreign government to fund a private contractor, why should Congress bother to issue a letter of marque and reprisal when the transaction could go forward without any U.S authorization? There are two reasons Congress might want to issue a letter of marque and reprisal in such a case. First, authorization by the U.S Congress gives the contractor greater international legitimacy and clout.172 Many of the problems in Sierra Leone following EO’s premature departure could have been avoided if international pressure did not force the government of Sierra Leone to cancel the contract.173 If backed by the U.S. Congress, it is unlikely that a contractor would, even if not embraced internationally, be forced out before some measure of lasting stability took hold. A second, related reason is that many contractors likely would feel more comfortable operating in foreign territory with the endorsement of the U.S. Congress and likely would be more eager for the opportunity as both the known and unknown risks would be substantially diminished, or at least made more recognizable.174
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(What a Letter of Marque and Reprisal Could Look Like)
SECTION 1.
Issuance of Letter of Marque and Reprisal
The Congress of the United States authorizes and commissions, under an officially issued letter of marque and reprisal, the privately funded and privately equipped firm [insert firm name] to employ all means reasonably necessary to [seize/capture/destroy] outside the geographic boundaries of the United States and its territories the [person/property/equipment/weapons] of [insert name of targeted individual or group].
SECTION 2.
Regulations Applicable to [insert firm name] While Acting Under This Letter of Marque and Reprisal
(1) [Insert firm name] shall conduct its operations in accordance with the principals of capture contained in the Army Field Manual 2-22.3.243
(2) [Insert firm name] shall conduct its operations in accordance with the principals of war contained in Army Field Manual 27- 10.244
(3) Any and all offenses committed by individuals employed or utilized by [insert firm name] while acting under letter of marque and reprisal shall be tried and punished as like offenses are or may be tried and punished when committed by a person belonging to the armed forces of the United States.245
SECTION 3.
SECURITY BOND
[Insert firm name] shall post a security bond in the amount of [insert amount] to ensure compliance with the conditions set forth in this letter. Failure to comply with the standards and requirements set forth in this letter will result in the forfeit of the security bond.
School website here.
PDF for paper here.