Privateers: Old Tactics in a Modern World

Six weeks after the World Health Organization (WHO) designated the COVID-19 virus a pandemic, the world continues to be under a near-total lockdown. In the weeks since, the U.S. has focused efforts on maintaining ‘stay-at-home’ orders and passing legislation to support affected Americans in an attempt to reduce the overall spread and long-term impacts of the virus. Despite these efforts, there are growing concerns over potential vulnerabilities that may arise in areas such as defense and national security. In addition, as nations around the world focus their efforts on the health of their citizens, diplomacy has lacked precedence. As the COVID-19 pandemic continues on, experts are concerned about the long-term impacts that an isolationist approach could have for U.S. diplomatic relations.

A 2017 U.S. National Security Strategy report suggested that “great-power competition” between the U.S. and China posed a severe securitization threat.[1] In the wake of the COVID-19 pandemic,[2] concerns of Chinese power exertions have intensified. China has actively constructed military installations in the South China Sea since about 2013, solidifying its regional power and encroaching on the territory of its neighbors.[3] Beyond expansion in the South China Sea, China has also pursued massive development projects in Asia, Africa, and the Middle East, a large-scale foreign policy push commonly referred to as the “Belt and Road Initiative” (BRI). While Chinese projects in developing nations will likely temporarily slow in the wake of the COVID-19 pandemic, the BRI is still a top priority for officials in Beijing.[4] Given both the Chinese militarization of the South China Sea and its soft power push in a growing list of developing nations, Chinese global power and influence is on an upward trajectory.

In response to the growing threat, experts from the U.S. Naval Institute recently outlined a report in which they encourage the U.S. to utilize privateering as a low-cost solution to counter the Chinese.[5] This suggestion is in direct response to the growing presence of the Chinese military in the South China Sea, an internationally unrecognized area that has been disputed for decades. However, international studies fellow Collin Koh at Nanyang Technological University in Singapore rebuked the Navy Institute’s recommendation, calling it “politically unsound.”[6] While privateering is legal under the U.S. Constitution, the implications of such actions could not only spark Chinese retaliation but international outrage.

Principally, privateering is issued by a Letter of Marque granted by Congress.[7] In essence, it allows private entities to capture and use methods of force against foreign (in this case, Chinese) vessels that are deemed a threat.[8] However, not only could this draw international condemnation, but it also has the potential to provide the Chinese with reasonable jurisdiction to consider invoking international law of war specifically, Jus ad Bellum. Encompassed in the principle of Just War Theory, this jurisdiction gives a nation reasonable cause to engage in warfare or retaliatory action.[9] The repercussions of such an outcome could have devastatingly prolonged impacts on the world.

However, of equal consideration is the economic stability of U.S. naval defense following the COVID-19 pandemic. If the U.S. Navy seriously considers privateering in the South China Sea, the current economic crisis could have unprecedented effects on future budgetary allocations. As a result, the U.S. Navy may not have the future spending to counter the implications that privateering could invoke, such as retaliation. U.S. defense experts must take into consideration both the current threats that Chinese maritime presents, as well as the long-term outlook of those threats. Specifically, whether the U.S. economy will have the ability to support its naval force and have sufficient resources to protect Pacific allies in the coming months.

Despite the possibility of drawing international condemnation, would authorizing privateers to counter Chinese aggression be a workable naval strategy? Throughout history[10] (and especially during the age of sail), privateers were utilized as a low-cost alternative to the commitment of naval resources to a region during a time of war. In the United States, privateering was an effective way to harass British merchant and transportation vessels during both the Revolutionary War and the War of 1812.[11] This harassment freed up official U.S. naval resources for combat elsewhere, saving both money, material, and sailors.

If privateering was so successful, why has it not continued unabated into the modern era? Officially banned almost everywhere through the Declaration of Paris in 1856,[12] privateering has faded into the recesses of distant history. Privateering filled a large gap in previously anemic navies, buttressing fleets sometimes only a dozen vessels strong. While the financial resources of navies have improved since the age of sail, the COVID-19 pandemic threatens the budgets of militaries around the world. As mentioned previously, navies may be forced into the adoption of privateering as a means of maintaining naval superiority. While the international community may not be receptive to such practices, some navies may not have a choice. In addition, privateering is not unlike services private entities already provide to many governments. Private military contractors like Academi (formerly known as Blackwater) already provide the U.S. with land-based strategic solutions.[13]

The risks associated with privateering are numerous. Chief among these concerns are the reliability of private entities in performing tasks normally performed by professional militaries. In 2007, a Blackwater convoy in Iraq charged with protecting U.S. officials opened fire into a crowd of Iraqi civilians, killing 17.[14] This massacre dramatically damaged the reputation of other military and coalition forces in the region, hindering the completion of operational priorities. While such a massacre is an extreme example, such mishaps can easily occur if privateering were to occur. A crew without the proper guidance could overextend their authority, taking a situation too far and sparking an international incident. While privateers were successfully regulated in the past through a strict legal framework in court, the risk of an incident remains. Without the training provided in a military setting, private entities will always run the risk of miscalculation. The risk for a miscalculation with a powerful foe like the Chinese navy is cause for concern.

Few issues have so frequently caught the attention of both scholars and politicians as the distribution of war powers between Congress and the President. Professors Charles Lofgren and Jules Lobel have turned to the long-neglected power of congress to grant letters of marque and reprisal. To understand letters of marque, we have to go back and examine their use in the American Revolution. Letters of Marque were government authorizations to private ship owners to seize the property of foreign parties. The United States has not issued letters of marque since the war of 1812 and hasn't considered doing so since Andrew Jackson's Presidency, and although an international treaty banned them in 1856 scholars argue that the President can gain congressional approval before initiating any military action, except in extreme emergencies.[15]

To understand how Letters of Marque would affect world powers today, we have to know how they were used in the American Revolution. Britain issued letters against colonial merchants to interrupt trade. On April 3, 1776, the Continental Congress, lacking funds to strengthen its navy, authorized privateers to attack and seize British ships. The goods that were taken from these enemy ships were used to fund the War, and then were divided between the vessel and the issuing government. However, there was a great deal of risk for the privateers because while they enjoyed complete immunity for their actions, those captured by the enemy were then treated as prisoners of War. After the War, these Letters of Marque were recognized by Article VII paragraph 5 of the Articles of Confederation, allowing individual states to issue letters only against countries against which Congress had declared War. They were necessarily an instrument of foreign policy and James Madison who later used them during his presidency stated that individual states should not be allowed to issue letters on their own, but somewhat limited the power to Congress under the “War Powers” of Article I, Section 8, Clause 11.

The issue of Letters of Marque was raised after the 9/11 attacks, titled the Marque and Reprisal Act of 2001. It would have authorized the president to use these Letters of Marque against specific terrorists instead of waging battle against a foreign state. In 2009 a similar bill was introduced to apply this authority against Somali pirates operating in the Gulf of Aden. These letters typically have conditions that must be met before seizing an enemy ship. The process allows for the prosecution of individuals who violate the terms of the letters.

China has 9,000 miles of coastline and the world's second-largest merchant fleet after Greece. The implications of flooding China's coast with privateers would be an invitation of privateers along our coast. Privateers, in essence, are pirates with state sponsorship. The corsairs would benefit from the spoils they seized and the issuing government, in this case, the United States would benefit from China's economic hit. An attack on Chinese global trade would undermine China's entire economy and threaten their government's stability. Privateers would be a much faster solution than expanding the Navy, considering it typically takes four years to build a new combatant for the Navy. Aside from potentially being captured by enemy ships, privateers place risk on American credibility. The pentagon learned this the hard way in the Iraq war. In 2007 gunmen working for a private military company named Blackwater murdered 17 civilians in Baghdad's Nisour Square. The incident soured relationships between the country and American troops and alienated them from the very people they were there to protect. Mercenaries are challenging to regulate and control and can be highly unpredictable. Privateering would harm the U.S. China trades through its waters. The outcome would likely cause China to deploy privateers of its own and can have dire consequences on American civilians. A lot of the United States trade happens over the water.

January 16, 2020, the "phase one" trade agreement between China and the United States took place. President Trump was stating that it was one of the most excellent deals ever to take place. Essentially a cease-fire agreement that had threatened to escalate to an all-out trade war between China and the U.S. The new agreement is big purchases, by China, on U.S. goods topped with Chinese promises on reforms in areas such as Intellectual property protection. The agreement promises farmers billions of dollars more in purchases of soybeans and agricultural products. Two-thirds of Chinese goods will still face import taxes, but more importantly, President Trump's primary concern is to win the deal against China for Americans. Privateering ships can be looked at as an act of war by China against China and hinder all the work done to move the trade deal forward.[16]

The U.S. fleet is left with hard choices. Privateering would be a beneficial auxiliary force however carries a serious monetary price in addition to an economic and political one. Updating, and building our fleet is costly, both from simply constructing a new vessel, and the maintenance costs accrued from the vessel’s use. Further exacerbating the future costs of possessing a fleet to compete with near-peer rivals is COVID-19 and the health, logistical, and economic hurdles the pandemic presents. Thus the issue becomes a matter of what the U.S. values for its long term strategy regarding challenging near-peer rivals and ensuring national interests during and after COVID-19.

In the short term, if the U.S. values maintaining its ability to project force, then waste within the Navy needs to be trimmed down. This can be done by changing the rating system of the officer corps to not only ensure the best qualified are leading, but also those who are leading well are getting a pay grade promotion and not an officer who just completes the bare minimum. Those officers who do not meet the criteria can be reassigned to areas in need of more manpower, take reduced pay until they meet the new criteria, or can leave the service. The criteria would have to be assessed per military branch, and should be decided on by the Department of Defense. The U.S. military is very top-heavy as is, and there have been moves in the past within Congress to get the number down but with little success.[17] Although recently, Congress has agreed to decrease the number of billets issued for high ranks officers by 10% however the ultimate goal would be approximately 25%.[18] The money freed up from military bloat can build and maintain more ships.

In the long term, if the U.S. wants to maintain and increase force projection, then long term restructuring of the military as a whole must be pursued. Further cost saving measures must be employed in addition to re-assessing missions concerning mission creep and conditions for success. Restructuring begins with the short term strategy of assessing officers, and reducing the number of billets issued. Then restructuring can begin to assess personnel costs as well as the cost of military equipment, as well as wasteful purchases. Moreover, more pressure must be placed on Congress to ensure that waste in the Pentagon is curtailed. There is a pervasive culture among federal agencies which states that if the given agency or department does not use their allocated funds by the end of the fiscal year, then they will be awarded less next year.[19] This leads to wasteful and frivolous spending, and poses a tremendous drain on resources that can’t fully be accounted for due to the Pentagon failing its audit twice.[20] Moreover, the drain on resources limits the ability for the U.S. to project force, and ensure funding for mission critical items, allowing low priority items to gain precedence.[21] By following through with the aforementioned policy, the Navy can maintain and build its naval power, and the military as a whole will benefit. COVID-19, the economy, and China presents challenges that will test the U.S. resolve in ensuring the current international order. Though all is not lost, and dire measures such as privateering do not need to be on the table. With solid stewardship, challenges in funding are not insurmountable, and we need not make the high seas an environment for state-sponsored piracy.

The Counterterrorism Group’s (CTG) NORTHCOM team will continue monitoring the United States’ national security policies as they develop and assess what a given policy means in a global context. NORTHCOM will also continue to research international threats to the NORTHCOM region in an ever-shifting security landscape to better inform CTG stakeholders.

________________________________________________________________________________________ The Counterterrorism Group (CTG)

[1] Mathew Kroenig, “Why the U.S. Will Outcompete China,” The Atlantic April 3, 2020. [2] Image: Supply Ships in Port by Stockvault licensed under public domain [3] Megan Specia and Mikko Takkunen, “South China Sea Photos Suggest a Military Building Spree by Beijing,” The New York Times February 8, 2018. [4] Plamen Tochev, “The Belt and Road After COVID-19,” The Diplomat April 7, 2020. [5] Liu Zhen and Kristin Huang, “US military researchers call for use of privateers against China,” South China Morning Post April 10, 2020. [6] Liu Zhen and Kristin Huang, “US military researchers call for use of privateers against China,” South China Morning Post April 10, 2020. [7] Colonel Mark Cancian and Brandon Schwartz, “Unleash the Privateers!” U.S. Naval Institute April 2020. [8] Colonel Mark Cancian and Brandon Schwartz, “Unleash the Privateers!” U.S. Naval Institute April 2020. [9] Jennifer Allison, “Program on International Law and Armed Conflict,” Harvard Law School Library May 9, 2019. [10] Image: Pirate Ship by Pixabay licensed under Public Domain [11] Alexander Taborrok and Alex Nowrasteh, “Privateers! Their History and Future,” Fletcher Security Review vol. 2, no. 1, January 28, 2015. [12] Ibid. [13] Alex Kemeroff, “War for money. Leading private military companies of the world,” Medium, February 16, 2018. [14] Matt Apuzzo, “Blackwater Guards Found Guilty in 2007 Iraq Killings,” The New York Times, October 22, 2014. [15] “Putting Privateers in Their Place: The Applicability of the Marque and Reprisal Clause to Undeclared Wars”, Chicago Unbound, n.d, [16] “5 Takeaways From Trump’s New China Trade Pact”, Foreign Policy, January 16, 2020, [17] “Are There Too Many General Officers in Today’s Military?”, National Defense University, Joint Force Quarterly 87, October 1, 2017, [18] Ibid. [19] “Use-it or lose-it: DoD dropped $4.6 million on crab and lobster, and $9,000 on a chair in last-minute spending spree” Military Times, March 12, 2019, [20] “Defense Department Fails Its Second Audit, Yet is Making Progress”, Government Executive, November 18, 2019, [21] “Use-it or lose-it: DoD dropped $4.6 million on crab and lobster, and $9,000 on a chair in last-minute spending spree” Military Times, March 12, 2019,

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