We have a security problem. We cannot stop the import of illegal drugs. We cannot stop illegal immigration. And now we know we cannot stop terrorists. Much like our Revolutionary War forefathers, we do not have the assets we need to protect ourselves. They found an answer, and fortunately they preserved it for us: privateers.
Privateers were interdiction forces with a profit motive. The power to commission privateers is constitutionally guaranteed (Article I, Section 8). Most nations renounced this practice in the Treaty of Paris of 1856; the United States did not. Later, U.S. participation in the Hague Convention of 1907 was touted as the end for privateers. Again, the United States declined to sign or ratify it. In short, the United States never closed the door on the constitutional privilege of privateering.
As time has advanced, federal and international laws supporting the power of seizure on the high seas have multiplied. Statutes and court decisions uphold the power of confiscation over contraband and all associated property, such as the ships carrying it. The Racketeer Influenced and Corrupt Organizations Act and the Maritime Drug Law Enforcement Act are notable examples. International antiterrorist laws and admiralty laws bolster the option further.
That all this falls under admiralty law sweeps aside many of the search-and-seizure constants that apply to conventional (land-bound) cases. Admiralty law does not recognize many of the niceties demanded by common law in such matters. Federal "conflicts of law" decisions lend even more support. So privateering is legal—or would be, with a swing of the congressional gavel.
Some might fear abuse of such search-and-seizure powers. We have, however, an extensive body of case law and statutes exerting strong control over boarding-and-seizure operations and the associated torts that might result. This legal territory already is well defined.
No other effective option exists. The Coast Guard has the responsibility for national security in this arena, but it cannot do the job with the assets it has—no matter how creatively it uses them. If we cannot stem the seaborne flow of illegal immigrants or drugs, smuggling a few hundred professional terrorists also should be child's play.
Privateers, on the other hand, would be amazingly effective—and free. During the Revolutionary War, privateers captured about the same number of vessels as were sunk by German submarines in World War II. These captures tended to be accomplished with very little violence; privateers were businessmen—damaged or sunk prizes cut into profits. Their philosophy was "bring 'em back alive."
Unlike their Revolutionary War predecessors, modem privateers would have the advantage of being connected by modem communications technology. If we combine this hardware with an command/intelligence fusion center, effective privateer interdictions could be accomplished with ease. The Coast Guard would be in overall charge of operations.
Whatever we call them—commissioned auxiliaries, privateers, or something else—we need them now. And we can have them; no declaration of war is required. President George W. Bush has made what lawyers refer to as an "imperfect declaration of war" against terrorism. This should be more than enough to legitimize any privateering legislation to follow. A single congressional enabling act is all that is required, which would need to provide for commissions and security bonds and reauthorize prize courts.
Commercial and contract structures already exist. The Coast Guard is an expert at civilian contracting, and organizations such as MPRI have worked analogous land-bound private operations for years. Manpower is available from many sources, with former and retired military special forces and law enforcement personnel leading the list.
The potential pickings are vast, worth hundreds of millions of dollars. The demand for commissions would be voluminous. Privateers would do the job, and there simply is no other answer.
So bring back the privateer, and do give me a call. I am available.
Commander Winters is a retired surface warfare officer. He studied international law in England and domestic law in the United States.