Feral Jundi

     I wanted to enter this into the record for LoM related stuff.  This is interesting that there seems to be more discussion going on about Article 1, Section 8, and finally we might get some serious critique on the matter. For an idea to be strong, it needs to be forged in the furnace of debate and criticism.  So I like hearing the concepts being thrown around.

     One of the things I have been researching with the LoM lately is the reasoning why it still exists in the Constitution.  With that, I had to go back to the Civil War during the 1860’s and see what the factors were during the signing of the Declaration of Paris in 1857. I thought this was some very intriguing history and it indicated how crucial the LoM was to wartime strategy for the US in it’s early wars–politically and militarily.  It is also interesting how the Confederate Privateer’s wikipedia only presents part of the story about why the US did not sign the Declaration of Paris in 1857, and they make no mention of the Union paying blockaders (or basically private naval forces) to enforce the blockades necessary to stop the Confederate privateers. Ha! But there is certainly enough info about it all if someone cared to make the connections.(like me, hee hee)

     Nor do they make any mention in this Confederate Privateer wiki of the Marcy Amendment or how the US thought privateering was necessary for a country who did not have a navy as strong as the European navies.  Back in 1857, the US was all about privateering, and 4 years later, they were still all about privateering.  I think Lincoln only publicly protested the concept because his enemy was using privateers and issuing LoMs to Americans and anyone in the world that qualified and wanted one.

   Well, back to the article below.  It is important to get the history and record straight as to what the real deal is about the Letter of Marque and why the US did not remove it from the US constitution.  Because if there ever was an effort to bring back the LoM as a tool of warfare, this history will be crucial to the intellectual and legal discussion about such things. Interesting stuff. (all Civil War/Declaration of Paris information is at the end of this post) –Matt

——————————————————————

Is It Legal to Kill Osama bin Laden?

Not really. But if you act alone, you’re probably in the clear.

BY JOSHUA E. KEATING

JUNE 22, 2010

Gary Faulkner, the American man detained in Pakistan while trying to kill Osama bin Laden, will be released this week without charges, according to his family. The 52-year-old Colorado construction worker was arrested last week in northwest Pakistan for carrying weapons — including a pistol and 40-inch sword — without a permit. Questions of practicality (and sanity) aside, had Faulkner succeeded, could he have been charged with murder?

Probably not. Faulkner probably couldn’t be charged with murder if he killed bin Laden and then returned to the United States, since the murder would have happened abroad where U.S. courts have no say. “Universal jurisdiction” for crimes against humanity is an increasingly popular notion in human rights law, and one that’s been gaining some traction in the United States — a U.S. citizen was convicted of committing torture abroad for the first time last year — but a simple murder, particularly when the victim is the world’s most infamous terrorist, probably wouldn’t qualify.

Of course, bin Laden’s killer could still be charged with murder in Pakistan, or wherever the assassination took place. The United States has an extradition treaty with Pakistan, but it’s hard to imagine any U.S. government handing bin Laden’s killer over to Islamabad.

That being said, projects like Faulkner’s aren’t the sort of thing the United States is about to encourage. Authorities generally frown upon vigilantism, even directed against the worst criminals. The U.S. State Department is  offering a reweard of up to $25 million for “information leading directly to the apprehension or conviction,” but that’s not a license to kill.

The murky legal framework of the war on terror complicates things somewhat. While the U.S. government would never condone the extrajudicial killing of a most-wanted fugitive like Boston mob boss James “Whitey” Bulger, the United States maintains that senior members of al Qaeda are “enemy combatants” and therefore not subject to civilian due process. Some vehemently disagree with this interpretation, but if a CIA drone pilot had bin Laden in his sights, it’s unlikely that his first call would be to a lawyer.

However, no one has ever tried to claim that this authority be extended to all citizens. The laws of war only cover killings of combatants by combatants; it’s not a blanket privilege to commit violence in the name of counterterrorism.

The U.S. Constitution does give Congress the authority to grant “letters of marque and reprisal” authorizing private citizens to cross international borders to fight enemies. Letters of marque haven’t been issued in the United States since the War of 1812, though U.S. Congressman Ron Paul (R-Texas) has advocated reviving the concept to authorize private militias to fight al Qaeda and Somali pirates.

If some Blackwater-type outfit should decide to take on the killing of bin Laden without bothering with a letter of marque, it should keep in mind that it would illegal for a group of citizens to plan the assassination of bin Laden in the United States under a federal law that prohibits conspiring “with one or more other persons … to commit at any place outside the United States an act that would constitute the offense of murder, kidnapping, or maiming.” The murder itself is still outside U.S. jurisdiction.

Bottom line: If you’re planning on taking the war on terror into your own hands, it’s probably best not to tell anyone about it beforehand, and get out of town fast afterward.

Thanks to Daveed Gartenstein-Ross, director of the Center for the Study of Terrorist Radicalization at the Foundation for Defense of Democracies; Samuel Rascoff, asssistant professor of law at New York University; Brian Fishman, counterterrorism research fellow at the New America Foundation; and Andrew Lebovich, research associate at the New America Foundation.

Story here.

——————————————————————

From wikipedia: Call for privateers during the Civil War.

     Following the 12 April 1861 bombardment of Fort Sumter in Charleston Harbor, President Abraham Lincoln called for raising 75,000 troops to put down the “rebellion”. In response, on the 17th Confederate President Jefferson Daviscalled both for raising troops and for the issuance of letters of marque.

     Although the Federal government had only 42 warships in commission, and most others that were laid up were unserviceable, the Confederate States had almost nothing to offer in opposition. With no navy yet established, they turned to the alternative of privateering. The issuance of letters of marque and reprisal was explicitly allowed by the Confederate Constitution and in fact was copied almost directly from the American Constitution. The privateeers were expected to prey upon commercial vessels of the enemy. Their pay would consist of the value of seized ships and cargoes, less legal costs. Two benefits would accrue to the Confederate government; the disruption of commerce might persuade the European nations to pressure the North to end the conflict, and it would also force the North on its own to ease the blockade in order to chase down the raiders.

     By this time, the European maritime powers had declared the practice of privateering to be illegal, in theDeclaration of Paris (1856). According to the treaty, privateers were to be regarded as equivalent to pirates, meaning that they had the protection of no national flag. A privateer could be seized by the ships of any signatory nation and tried in that nation’s courts. In 1856, the United States had declined to ratify the treaty. When the Civil War broke out, the Lincoln government tried belatedly to make this nation a signatory.

     If the previous signatories had accepted American entry into the scope of the treaty, it would have meant that they were taking sides in the rebellion. Rather than do so, they insisted that the United States should get its own house in order first. The governments of the treaty participants, in order to avoid becoming involved in the conflict in North America, refused to regard Confederate privateers as pirates. In doing so, they had to acknowledge that a war existed, and therefore both parties had belligerent rights. Although the government of US President Abraham Lincoln objected that this gave legitimacy to what they considered to be properly merely an insurrection, the policy actually worked to the advantage of the Federal government because it meant that British, French, and Spanish courts, including those in colonies in the Caribbean, were closed to the privateers. They would therefore, in order to make good their prizes, have to take them into Confederate ports for adjudication.

     Shipowners throughout the South, and perhaps some from the North as well, responded with enthusiasm to the call.The initial burst of ardor was great enough that the Confederate government could lay down some rather stringent conditions, such as requiring the deposit of large bonds, to insure that the practice did not degenerate into outright piracy. The holders of letters of marque were also required to be the actual owners of the ships; this was to discourage speculation in the letters.

     An anomalous feature of the legislation governing Confederate privateering was that it considered attacking enemy warships. To give an incentive in the absence of valuable cargoes of merchant vessels that could be sold for profit, the law provided for fixed monetary awards for capturing or destroying ships of the US Navy, with the size of the awards to be based on the numbers in the crews and the value of the ships taken or destroyed. This provision was never applied, as no Union warships were destroyed by privateers.

From Global Security: The Declaration of Paris During the Civil War

     The Declaration Respecting Maritime War (sometimes known as the Declaration of Paris of 1856), abolished privateering. The first article of the declaration reads: “Privateering is and remains abolished.” The Declaration of Paris officially recognized privateer as a new category of international criminals, no different from pirates pursuing private war for private ends. The negotiations had been convened in Paris at the suggestion of Count Walewski, the French plenipotentiary. Adopted on April 16, 1856, this treaty established maritime law among the major powers of Europe. It declared neutrality of neutral countries’ vessels and seaborne goods. The treaty also prescribed sufficient force to enforce a maritime blockade. Until the mid-19th century, the law of war, though increasingly developed, remained largely in the realm of custom. It was not until 1856 that states made the first multilateral attempt to codify in times of peace rules which were to be applicable in the event of war. This declaration bound only its signataries when at war with each other, and lefts them free to use privateers when at war with other states.

     The United States, on the other hand, did not sign this Declaration, with various reasons being aduced. The United States declined the new neutral immunities because they will not surrender privateering. The power of employing its own and foreign ships as privateers had made the American Union a very formidable belligerent in the War of 1812. It was also against its tradition avoiding entangling [European] alliances. The United States government declined to sign the declaration on the ground that, not possessing a great navy, they would be obliged in time of war to rely largely upon merchant ships commissioned as war vessels, and that therefore the abolition of privateering wourd be entirely in favor of European powers, whose large navies rendered them practically independent of such aid.

     The United States declined to sign because the Declaration’s provisions fell short of complete immunity for all private vessels, including those of belligerents. The proposal of the American Government to give up privateers on condition of exempting all private property from capture was not adopted by the other Signatories. The United States had agreed to become a party to the declaration if its signataries would amend it by adding a provision protecting from capture all private property at sea, not contraband. This proposition, called the “Marcy” or “American” amendment, not being accepted by the signataries, was withdrawn in 1857.

     The Declaration codified a fundamental shift in the balance of interests between warfare and trade on the high seas. The benefit of the doubt shifted from the one to the other. It did so at a time when the globalization of world commerce was altering the strategic landscape in ways whose implications were decidedly puzzling for those who favored the advance of liberty in politics. If war persisted, then at least it would be reduced to a duel between Governments and their professional fighters. In a war in which aggression is kept on the old footing by the powers of armament which privateering gives, the Power which had most property at sea was most injured. The old law took for granted the equality not only of naval strength among states, but in volume of trade and of property risked.

Persistent American Privateering

     Privateering may have been abolished by the 1856 Declaration of Paris, but, during the Civil War, Union blockaders were granted monetary awards. By the time of the American Civil War, the days of paper blockades were over; and, though the United States were not a party to the Declaration of Paris, its rule in regard to blockade was only the formal expression of a law universally recognized. Blockades, to be binding, must be effective — that is to say, maintained by a force sufficient really to prevent; access to the coast of the enemy; or, according to the general interpretation given to the treaty, sufficient to create an evident danger in entering or leaving the tort. In this sense, the Federal Government understood its responsibilities and prepared to meet them.

     In 1861, Great Britain unsuccessfully sought to induce the Confederacy to accede to the Declaration of Paris. The United States offered to accede unconditionally to the Declaration of Paris, hoping to obtain an international right to treat Confederate privateers as pirates. Great Britain, having accorded the character of belligerents to the Confederate States, had practically recognized their right to employ privateers. The offer of the United States was thus declined, unless the United States would admit that its signature should not have “any bearing, direct or indirect, on the internal differences (now) prevailing in the United States.” This attempted restriction by one state of a declaration of so general and permanent a character, and to which so many states were parties, was not acceptable to the United States, and its accession to the Declaration of Paris was not made.

     The Confederate States offered letters of marque to subjects of all countries, and the Congress of the United States authorized the President to issue letters of marque. But no avowedly foreign private armed vessels took letters of marque from the Confederacy, and the ostensibly Confederate vessels were commissioned as of its regular navy. The President of United States did not make use of his power to issue letters of marque.