What Is A 'Letter Of Marque And Reprisal'?
And could an abstruse constitutional provision create a weapon against Russian aggression?
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Pop quiz, Con Law hot shot. What’s a letter of marque and reprisal?
Many of you consider yourselves fairly knowledgeable about constitutional law. But how familiar are you with the Letters of Marque and Reprisal Clause, a provision so obscure that it makes the Third Amendment seem famous by comparison?
As always, let’s start with the text. Here it is, from Article I, Section 8, Clause 11: “The Congress shall have Power…. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water….”
This might seem like a rather random and recondite subject, but it’s not. Instead, it relates to issues that are on everyone’s minds right now: the Russian invasion of Ukraine and what can be done to punish this outrageous aggression, including the application of economic pressure on Russia and some of its richest, most powerful citizens.
On Monday, Rep. Lance Gooden (R-Tex.) introduced H.R. 6869, proposed legislation that would “authorize the President of the United States to issue letters of marque and reprisal for the purpose of seizing the assets of certain Russian citizens.” As discussed in the Washington Post, The Hill, and Fox News, such a law, if enacted, would give private American citizens the ability to seize, for their own financial benefit, the assets of private Russian citizens.
As Representative Gooden told Philip Bump of the Post, “Russian yachts are moving quickly toward safe havens where they will be out of our reach. The United States and our allies must act quickly before it is too late, and we must use every tool available to ensure the enablers of Putin’s disgusting invasion are held accountable.”
So how exactly would letters of marque and reprisal work in this situation? And is Representative Gooden’s bill a good idea?
For insight into these issues, I interviewed Professor Ingrid Wuerth of Vanderbilt Law School. She’s a leading scholar of foreign affairs and public international law, as well as one of the legal academy’s foremost authorities on letters of marque—although as I joked to her when we spoke, she doesn’t have much competition, given the obscurity of the topic. Here’s a (lightly edited and condensed) write-up of our conversation.
DL: For folks who are not familiar with them—which I suspect is most of us, including people with fairly decent knowledge of constitutional law—what the heck are letters of marque and reprisal?
IW: A letter of marque and reprisal (“M&R”) is a government commission to a private vessel or “privateer” to attack and seize property from enemy vessels. M&Rs are a tool of naval warfare.
Privateers under an M&R function like a navy. During the Revolutionary War, we didn’t really have a navy, so we used M&Rs to convert our merchant ships into the equivalent of a navy. These ships could then do whatever a navy could do, including engaging with and seizing British vessels.
Without M&Rs, these vessels would have been pirates. The government license converted what would have been piracy into a form of naval warfare that was permissible under international law and governed by international legal rules.
The motive for the actual people on these privateer vessels was purely monetary. So if you were an American privateer during the Revolutionary War, you’d want to go after, say, a big, slow-moving Irish linen vessel, capture it, and make your fortune. As a result, privateers focused on vessels with the least military significance.
DL: Let’s say I capture that Irish linen vessel. What next? Do I just get to keep it and all of its cargo?
IW: You’d bring that vessel to an American port, like Boston, and you’d go through a court proceeding. After that proceeding, if successful, the vessel and its contents would become yours—after the U.S. government took a cut.
DL: I imagine other countries wouldn’t be thrilled about their vessels or their citizens’ vessels being seized like this. Do letters of marque require a declaration of war? If we’re officially at war with a country, maybe we don’t care about ticking them off?
IW: Letters of marque do not require a declaration of war. Various forms of private commissions have been used in situations falling short of war.
In the 1790s and 1800s, before the War of 1812, we had a simmering naval conflict with Britain, as well as a quasi-war with France. These were not full-fledged wars. Instead, these military conflicts unfolded through seizures of naval property pursuant to commissions.
M&Rs were widely used in the 16th and 17th centuries and into the 18th century. They were especially important for countries with weak navies, like the U.S. at the time. The U.S. government hasn’t used them since the War of 1812, but other countries have. And the Confederacy issued M&Rs during the Civil War.
DL: So we haven’t used letters of marque in over 200 years, which is quite a long time. Why is that?
IW: Because they’re generally a terrible idea, both as a matter of policy and international law.
On policy grounds, M&Rs generate situations that are rife for abuse, overreaching, and corruption. Say we issue M&Rs against Russia. We’d basically be telling people that they can go out, seize Russian yachts, and become wealthy.
What do you think will happen? People will go out and seize yachts right and left. But how do they know the actual ownership of the yacht? What if it’s only partly owned by Russian citizens or entities? What if the yacht that gets seized is actually French, or Dutch, or neutral property?
DL: This sounds like a bit of a mess….
IW: Using M&Rs gets incredibly messy. It was pretty messy already in the War of 1812, with some court cases to seize property lasting decades. And corporate form and ownership of property have gotten so much more complex since then. What if the yacht is owned by an LLC? What if the LLC is partly American-owned?
And today, of course, we have other tools that can address the threat posed by Russia. For example, consider the freezing of Russian central-bank assets—an incredibly powerful move that is shaking the ruble to its core.
DL: What about M&Rs under international law? I understand that there is scholarly disagreement over whether they are barred by international law, whether by treaty or otherwise?
IW: You’re correct that there’s disagreement over this. There’s a treaty that prohibits privateering, but the U.S. is not a party to it. But others argue that customary international law today prohibits privateering. As a normative matter, I would hope that international law prohibits privateering.
DL: It sounds like authorizing M&Rs is a pretty awful idea. Do you think Representative Gooden’s legislation is likely to pass?
IW: I’m not an expert in the workings of Capitol Hill. But there have been similar bills introduced in the past few decades, especially after 9/11 and in reaction to piracy in Somalia, and they did not pass. I do not think this legislation will either.
I can understand why it’s politically attractive. It’s fun to show a picture of a Russian-owned yacht and imagine the U.S. yachting community going after it. And if we rely primarily or exclusively on economic sanctions, there’s a question of whether they’ll lead to the behavior we want. Will sanctions lead Russia to withdraw from Ukraine or to overthrow Putin?
The record of sanctions is pretty mixed. Look at Venezuela and Iran, where we are not achieving our policy objectives despite strong sanctions. And sanctions against Russia wind up hurting the Russian people. At least one good thing about this M&R proposal is that it would target the property of certain individual Russian citizens rather than all Russian citizens. If Congress does go down this path, it should make the legislation very specific and very targeted.
But I hope Congress does not. For the reasons I’ve given, it’s a very bad idea.
DL: Shifting from international law and foreign policy to U.S. constitutional law, what’s the significance of the Letters of Marque and Reprisal Clause as a matter of Con Law?
IW: Its existence and past use show how Congress controlled the initiation and conduct of armed conflict to a far greater degree than is typically true today. When you read the M&R Clause together with the Captures Clause, which gives Congress the power to "make Rules concerning Captures on Land and Water,” you see how Congress was a partner with the president not just in whether to initiate armed conflict, but in how to conduct that conflict.
Today we tend to think that only the president as commander-in-chief can issue orders like, “Sail ships here, but not there.” But with letters of marque, Congress directed privateers in just that way: ”you can sail here, but not there,” or “you can seize linen, but not cotton.”
The Letters of Marque and Reprisal Clause and the Captures Clause highlight the level of control that Congress can exercise constitutionally over the waging of war. Congress hasn’t exercised that power much recently. We often blame the overaggressive executive branch, but Congress has been complicit in the erosion of its prerogatives. Congress often doesn’t want to get involved because if it does, then Congress can be blamed.
DL: Any final thoughts on using letters of marque and reprisal in response to the Russian invasion of Ukraine?
IW: I just want to underscore what an awful idea this is. It would be understood as an act of hostility, belligerency, and war—and we should should absolutely stay away from that here.
My thanks to Professor Wuerth for her time and insights. For more, read her excellent Lawfare post, “International Law and the Russian Invasion of Ukraine,” and follow her on Twitter (@WuerthIngrid).
If you don’t already, you can also follow me on Twitter (@DavidLat), where I’m better able to cover a fast-moving story like the Ukraine invasion compared to writing in these pages. For example, in a recent thread I discussed whether Biglaw firms might follow the lead of major companies like Exxon and GM and withdraw from Russia—and whether law schools might ban on-campus recruiting by firms that remain. Please feel free to discuss and debate such issues, as well as the use of letters of marque, in the comments to this post.
[UPDATE (4:21 p.m.): With tax time looming here in the U.S., here's an interesting, related development: Ukraine's government "has declared that captured Russian tanks and other equipment are not subject to declaration" as income. Good to know!]
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Not for nothing, but the mass tort bar likes to call its contingency fee agreements with government officials, usually state attorneys general, "letters of marque." They have all the policy problems of the constitutionally-provided-for real letters of marque discussed above with the unfortunate additional infirmity of being unlawful and unconstitutional ab initio.