Discussion: What Is a Letter of Mark and Reprisal?

There's a popular myth that terrorism is something that our country has never faced before, and that the Constitution is therefore not equipped to allow us to combat terrorism.

That myth is 100% wrong.

In fact, when the Constitution was written, the Founding Fathers were dealing with a very real, very deadly form of terrorism. Today we romanticize it. These terrorists were called "pirates." They marauded on the high seas, seizing vessels at will, killing civilians at random, and even attacking whole towns. They were often associated with foreign governments, who used them deliberately to undermine other nations and coerce them into changing their foreign policies. This meets all our modern definitions of terrorism.

And then, the pirates disappeared.

Did the pirates just decide to go away, or did the nations of the world actually have an effective method of dealing with terrorists that is now forgotten?

The technique used, very effectively, by the nations of the world to deal with these terrorists was called a letter of mark and reprisal. The Constitution grants Congress permission to issue letters of mark and reprisal. They work.

A letter of mark and reprisal is simply a decree that a person (say, Blackbeard or Osama bin Laden) or an entity (say, the Barbary Pirates or al Qaeda) is "marked." That gives the military (and in some cases private individuals) the authority to seize life, liberty, or property of said person or entity.

Because letters of mark and reprisal are, by their very nature, targeted, there's no vague "authorization for the use of force" necessary. With a letter or mark and reprisal, the military can kill an al Qaeda operative without the specter of it being an "extra-judicial execution." Any law enforcement agency that encounters a terrorist can arrest them without waiting for a specific warrant. If private entities are allowed to seize property, then banks can assist in combating terrorists by freezing assets.

In other words, a letter of mark and reprisal does legally what the authorization for the use of force and other legislation do illegally, without needed to declare "war" and without giving the President freedom to continually re-interpret who he is authorized to attack.

We stopped the pirates. We can stop the terrorists. And we can do it without ignoring the Constitution of the United States.