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.