Face it, whether republican or democrat, liberal or conservative, communist or capitalist, you’re officially tired of the Islamic State, Al Qaeda, ISIS, ISIL, whatever etc. and all of their insanity. For many of us the straw that broke the camel’s back was the choreographed murder of Jordanian Air Force Captain Muath Safi Yousef al-Kasasbeh (26). That act of sadism awakened a public dulled to public beheadings and the blind eye of the chief executive.
Captain al-Kasasbeh faced a death that would have made most of us cower, beg and soil. He faced his murderers demonstrating his personal faith and also the toughness of a professional soldier. And while his family is surely devastated with his loss, let them take whatever comfort they can in the knowledge that there are hundreds of millions of Americans who recognize his faith and bravery as he faced his cowardly murderers. As an ally, he deserves a presidential citation – he won’t get one – and if we award medals to foreign allied fighters then he should receive that posthumous award. His family might get that token of American thanks. Personally, I am indebted to his family and I shall not forget.
So, what do we do? We have a chief executive who practices containment and appeasement. We have a Congress that is supposedly controlled by Republicans. It’s time for our representatives to step up. But in a way that seeks the answers to the typical American questions asked in times of crisis.
What would our founders do? Did they make provisions?
Sure enough, they did. Article 1, section 8 clause 11 of the United States Constitution clearly states, “Congress shall have the power to declare war, grant letters of Marque and reprisal, and make rules concerning captures on land and water.”
As to the declaration of war it’s important to note that are differing opinions on the authority of the chief executive. One is that a declaration of absolute war cannot be vetoed by the chief executive while another is that the chief executive can veto any action of Congress. I interpret a declaration of war as one where the chief executive cannot veto as the action as it is a resolution or declaration and the question at law would be; is a declaration truly an act of Congress subject to veto? As a declaration it’s more likely that the chief executive, as commander in chief, could simply choose not to carry it out but the effect would be that war would be declared. Why do this?
Because with the declaration of war, there are many consequences that take place. Just one of which is the activation of treaties with allies to provide for mutual action against our common enemy. And, while I note that Congress has not since the 1940’s declared war, in any case its actions have been through a variety of mechanisms over the years including the latest authorization for use of military force. Otherwise known as AUMF. For whatever political reason to avoid the context of the declaration of war the use the AUMF does not provide the nation with the full availability of support that a declaration of absolute war provides. A declaration of war against the Islamic state would allow our nation to focus on an enemy has clearly stated their intentions of the destruction of America.
As we look at our current enemy we need to note that the early formation of the current Islamist state began in 1999 with Jama’at al Tawhid wa-al-Jihad in areas of Iraq and some areas of Jordan. These jihadists went on to join with Al Qaeda in 2004, declare an Islamic state in 2006 and assert a claim of sovereignty over the entirety of the Levant in 2013 and to declare a caliphate in 2014. Originally called the Islamic state of Iraq and the Levant (ISIL) which is also translates as the Islamic State of Iraq and Syria (ISIS), on June 29, 2014 this group declared its self to be a caliphate and renamed itself officially the Islamic State (IS).
As is typical with our executive and the United Nations they refuse to acknowledge the new name. But the fact is they acknowledge its existence and territorial control. Since being declared a caliphate, Abu Bakr al-Baghdadi was named its Caliph. Now that the enemy is a caliphate, under Islam, its Caliph claims religious, political and military authority over all Muslims worldwide whether recognized or not by those individuals.
We, as a modern nation, formed after the enlightenment, are faced with an enemy who operates in the thought and actions of the seventh century. And while, as Americans, we believe that a modern approach is the correct path we may want to look to the founders for another option that they included in the Constitution to help the nation in time of need against an enemy state. As part of clause 11, the founders included that Congress shall have the authority to issue letters of marque and reprisal.
Now a Letter of Marque is a government license authorizing a person to attack and capture enemies of an enemy nation and their property. A letter of marque is of no cost to the government that issues the document. In fact any prize or capture whether on land or sea is to be returned to a US-controlled port for auction of captured assets and transfer of prisoners. And that the assets are then shared between the holder of the letter of marque and the United States government.
Historically naming a vessel as the licensee, a letter of Marque and reprisal would include permission to cross an international border to affect the reprisal (e.g. to take some action against an attack or injury to citizens or assets of the United States.) The effect of a letter of marque converts private assets into a military auxiliary acting on authority of the government of the United States but at no cost to the government. Privateers in the 19th and 18th century operated under letters of marque issued by the United States government. And we have retained the authority to issue letters of marque and reprisal since the Constitution was ratified. And while 55 nations agreed through the treaty of Paris of 1856 to abolish the use letters of marque against each other, the United States was not one of them. In fact the only thing the treaty provided for was that the signatories would not use letters of marque against each other in the future but allowed for the use of letters of marque against any non-signatory in the future.
Then-United States Secretary of State William Learned Marcy refused signing and citing the need for the use of privateers in times of war instead of maintaining large armed forces. Interesting historically is that Spain, who also was not a signatory to the Treaty of Paris of 1856, issued letters of Marque against US assets during the 1898 Spanish-American war.
The issue of letters of marque and reprisal was again more recently raised before Congress by Congressman Ron Paul after the September 11 attacks against terrorist interests and again on July 21, 2007. Congressman Paul’s bill was the Marque and Reprisal Act of 2001 which would’ve granted the president the authority to use letters of Marque and reprisal against specific terrorists, instead of against a warring state. The terrorists were compared to Pirates in that they are difficult to fight by traditional military means. Congressman Paul additionally in 2007, advocated the use of letters of Marque to address the issue of Somali pirates operating in the Gulf of Aden. These bills introduced by Congressman Paul were not enacted into law by a democrat-controlled congress and were actually seemingly unnecessary considering the constitutional provisions already existing authorizing the same.
In addition former New Mexico Gov. Gary Johnson has even stated and commented that letters of Marque and reprisal could be an effective way to apprehend the Lord’s resistance Army leader Joseph Kony instead of using US troops.
Since September 2014 FOXNews Bill O’Reilly suggested that the country raise an anti-terror mercenary army to defeat Islamic state militants and other terrorist groups around the world. Unfortunately use of mercenary forces not only would cost the nation large sums the use of mercenary forces has been outlawed by the United Nations Gen. Assembly. Mr. O’Reilly has correctly noted that the United States did not ratify that agreement. While Mr. O’Reilly used the term mercenary he was not wrong in the mechanism. Since the United States Constitution provides for letters of Marque and reprisal Congress should issue letters of Marque and reprisal to all interested United States citizens or companies for the purpose of taking action against the Islamic State and their affiliated terrorist organizations wherever located outside the legal boundaries of the United States of America.
The founding fathers anticipated the need for private military auxiliary services to the United States government. Inclusion of specific mandatory congressional authority to issue letters of Marque and Reprisal shows clearly that our founding fathers anticipated that there would be a need of such service to our government by private military services. If Congress took action to issue letters of Marque and Reprisal, many citizens, including retired military personnel, would form privately, and at their own expense, to act under the authority of the United States government to bring the battle to the Islamic state.
Congress should act immediately. Issues letters of Marque and reprisal to all applicants and let private action take place against the Islamic State and let it be done at no expense to the taxpayer. I know I want to apply for one.