After two long ground wars in the Middle East, the prospect of sending U.S. troops to “degrade and ultimately destroy ISIS” is hardly appealing. On this prospect, the libertarians and the far Left are largely in accord—let’s not run headlong into war, especially without an end game.
Yet a few Westerners have been moved by the atrocities committed by the Islamic State to actually go overseas, of their own free will, and join a militia, Dwekh Nawsha (which means “self-sacrifice” in Aramaic), to protect Coptic Christians in Iraq.
UNAMI/OHCHR has received reports of serious violations of international humanitarian law and gross abuses of human rights that have been perpetrated by ISIL and associated armed groups, with an apparent systematic and widespread character. These include attacks directly targeting civilians and civilian infrastructure, executions and other targeted killings of civilians, abductions, rape and other forms of sexual and physical violence perpetrated against women and children, forced recruitment of children, destruction or desecration of places of religious or cultural significance, wanton destruction and looting of property, and denial of fundamental freedoms.
As much as the administration would like to lay blame for such deaths on the nebulous phenomenon of “violent extremism,” this particular organization, with its particular ideology, is hacking its way through flesh and bone to its own oppressive theocratic state.
ISIS Fight an Uncomfortable Prospect
Despite Boko Haram’s purported pledge of fealty to ISIS, apparently, neither organizations’ bloody rampages have reached the level of egregiousness that stirs the executive branch to crush the evil gobbling up Iraq and surrounding territories. President Obama has told us repeatedly that there will be “no boots on the ground” save for “advisers, trainers, and security personnel.” Regardless of whether the advisory missions happen to put those advisers in a combat role, the goal, apparently, is to keep us “out of another ground war.”
Whether this be on principle of non-interference or sheer ignorance of an organization that will if unchecked, eventually threaten global stability, the result is inaction (save for a few airstrikes).
An Alternative: Letters of Marque
Letters of marque are expressly granted in the Constitution (Article I section 8): “The Congress shall have the power…to declare War, grant Letters of Marque and Reprisal.” Letters of marque are essentially permits for private individuals to use force against enemies of the state on its behalf. In the early eighteenth century, these letters began to function as a way to supplement national navies. “Privateers” were given letters of marque permitting them to capture and plunder enemy ships; an admiralty court adjudicated on the legality of the capture.
Here’s How This Would Work In Modern Life
At first brush, our contemporary context appears in contrast to applications of the letter of marque 200 years ago. Yet looking past the evolution of warfare and technology, one can argue there is a place for letters of marque today. The core difference between now and then is the difference between a lack of an established military and the refusal to use one. But the end result is the same: inaction.
So perhaps it’s time to try something different. President Obama consistently presents a binary view of foreign relations—namely, that we either extend our hand in amicable diplomacy, or we send a hundred thousand boots to embroil us in a decade-long war. But surely our options are not so limited as either Democrat or even Republican leadership may present.
Pulled out from under a dozen other tactics and strategies, dusted off, and cast onto the table where “war” and “diplomacy” are the only options on display, letters of marque could be the centuries-old concept that aids a modern armed-forces effort.
Letters of marque allow the government some measure of control over the conduct of the recipients, allowing for prosecution if individuals are found in violation. Lack of accountability is in no one’s best interest, and letters of marque provide a way for private individuals to serve the interests of their country and global communities while still being accountable to a formally recognized authority.
One can think of letters of marque as an old solution fashioned anew to meet the unique challenges of an ideologically motivated organization bent on destroying the West and any regions touched by its influence.
Answers to Objections
Some superficially acquainted with this tool might raise legal objections to its use, namely that the Treaty of Paris “banned” letters of marque. Although we have honored the treaty during military conflicts with countries that acceded to it, the United States never formally acceded to the 1856 Paris Declaration.
Some will rightly point out the potential for abuse, as there almost certainly will be, as with all social and governmental institutions. However, the U.S. government would be holding accountable a much smaller group of individuals, whose scope of operations are far more limited than the expansive U.S. military. If abuse were to be found, processes for investigation and prosecution would be in place to swiftly bring to account and deal punishment for violations, as they had in the past.
Some less rational factions will undoubtedly hail this as a crazy right-winged conspiracy to privatize the military. But Founders did not design a Constitution with powers that undermine other powers. If letters of marque were a tool of privatization, what good would it have been to include provisions, just a few lines below this, “to raise and support armies” and to “provide and maintain a Navy”?
It is not certain that such a mechanism would significantly aid a pushback against the Islamic State, but it’s difficult to argue that we should not let those who are willing and able at least try. If this attack were directly on our homeland, and it were our own neighbors being burned alive or beheaded, would we thrust our arms out to hold back our brothers and sisters who were trying to stop it? Would we exclaim our dismay at an upset of the status quo, or would we be relieved the mobilization of decent people to action against veritable evil?
Dwekh Nawsha, “self-sacrifice,” may be a new precedent for governments empowering individuals to fight the evil they cannot, or will not—to defend not just their own country, but humanity against what is shaping into the twenty-first century’s new Evil Empire.
Self-sacrifice doesn’t figure into this administration’s priorities, and perhaps that isn’t the role of the executive. Yet if self-interest and legacy are of any importance, it should be open to this idea, for Obama can at once keep his promise to America to keep our troops at home and claim credit for stepping up our game against evil abroad. He’s pledged against boots on the ground, so it’s time we let some other boots tread the path toward victory our government is unwilling to take.
Sadly most people do not realize that these wars are designed by the elite. They are the ones who created ISIS. Our own government trained them and supplied them. We were never meant to win… not any of the wars since WWII, which some will argue we did not win. WAR is BS! It is all about money and control. Our world is being manipulated into a New World Order.
Ron Paul’s plan to fend off pirates
Rep. Ron Paul (R-Texas) and a growing number of national security experts are calling on Congress to consider using letters of marque and reprisal, a power written into the Constitution that allows the United States to hire private citizens to keep international waters safe.
Used heavily during the Revolution and the War of 1812, letters of marque serve as official warrants from the government, allowing privateers to seize or destroy enemies, their loot and their vessels in exchange for bounty money.
The letters also require would-be thrill seekers to post a bond promising to abide by international rules of war.
In a YouTube video earlier this week, Paul suggested lawmakers consider issuing letters, which could relieve American naval ships from being the nation’s primary pirate responders — a free-market solution to make the high seas safer for cargo ships.
“I think if every potential pirate knew this would be the case, they would have second thoughts because they could probably be blown out of the water rather easily if those were the conditions,” Paul said.
Theoretically, hiring bounty hunters would also be a cheaper option.
National security experts estimate that this week’s ship captain rescued by Navy SEALs cost tens of millions, although a Navy spokesman says the military cannot confirm the exact cost of the mission.
Instead, privateers would be incentivized to patrol the ocean looking for key targets — and money would be paid only to the contractor who completed the job.
“If we have 100 American wanna-be Rambos patrolling the seas, it’s probably a good way of getting the job done,” said Competitive Enterprise Institute senior fellow and security expert Eli Lehrer. “Right now we have a Navy designed mostly to fight other navies. The weapons we have are all excellent, but they may not be the best ones to fight these kinds of pirates. The only cost under letters of marque would be some sort of bounty for the pirates.”
According to Senate historians, Congress hasn’t issued a letter of marquee since the War of 1812, but the Confederate States of America issued them during the Civil War to deliver supplies behind enemy lines. There are also some indications that a letter was granted to a flying band of armed civilians during World War II to operate the Resolute, a Goodyear Blimp used to patrol the ocean for enemy submarines, but the issuance isn’t apparent in the Congressional Record.
If Congress were to revisit the antiquated process, a serious makeover would be required.
In the past, privateers were allowed to keep the ship and treasure they captured in an enemy encounter.
“That isn’t a viable way of funding in today’s world,” said Lehrer. “These pirates don’t really have treasure chests, and their money is tied up in Swiss Bank accounts. Congress would probably have to attach sizable bounties to people.”
Bounties are not a new idea — there is still a $25 million bounty on Osama bin Laden, and millions have been awarded by the government for other enemy captures.
In the thirteenth century, before the rise of the “modern” state, private enforcement mechanisms reigned supreme. In fact, because monarchs of the time had difficulties enforcing laws within their jurisdictions, the practice of private individuals enforcing their rights was so widespread that for the sovereign to be able to “reign supreme” while his subjects simultaneously acted as judge, jury and executioner, the practice of issuing “letters of marque and reprisal” arose. Merchants traveling from town to town or even on the high seas often became the victims of pirates, brigands and thieves. Yet these merchants had no means of redress, especially when they were outside the jurisdiction of their states. Thus the victim of a robbery often sought to take back some measure of what was lost, usually in like property or in proportionate value.
The sovereign saw this practice of private enforcement as a threat to his sovereign powers, and so regulated the practice through the letters of marque. A subject would appeal to his sovereign, giving a description of what transpired and then asking permission to go on a counterattack against the offending party. The trouble was, however, that often the offending party was nowhere to be found. Thus what ended up happening is that the reprisals carried out against an “offending” party usually ended up being carried out against the population or community from which the brigand originated. The effect of this practice, interestingly, was to foster greater communal bonds and ties and cement the rise of the modern state.
One might ask at this point, what do letters of marque and reprisal have to do with cybersecurity? A lot, I think. Recently, the Washington Post reported that there is increasing interest in condoning “hacking back” against cyber attackers. Hacking back, or “active defense,” is basically attempting to trace the origins of an attack, and then gain access to that network or system. With all of the growing concern about the massive amounts of data stolen from the likes of Microsoft, Target, Home Depot, JPMorgan Chase and nameless others, the ability to “hack back” and potentially do malicious harm to those responsible for data theft appears attractive. Indeed Patrick Lin argues we ought to consider a cyber version of “stand your ground” where an individual is authorized to defend her network, data or computer. Lin also thinks that such a law may reduce the likelihood of cyberwar because one would not need to engage or even to consult with the state, thereby implicating it in “war crimes.” As Lin states “a key virtue of “Stand Your Cyberground” is that it avoids the unsolved and paralyzing question of what a state’s response can be, legally and ethically, against foreign-based attacks.”
Yet this seems to be the opposite approach to take, especially given the nature of private enforcement, state sovereignty, and responsibility. States may be interested in private companies defending their own networks, but one of the primary purposes of a state is to provide for public—not private—law enforcement. John Locke famously quipped in his 2nd Treatise that the problem of who shall judge becomes an “inconvenience” in the state of nature, thereby giving rise to increased uses of force, then war, and ultimately requires the institution of public civil authority to judge disputes and enforce the law. Cyber “stand your ground” or private hack backs place us squarely back in Locke’s inconvenient state.
Moreover, it runs contrary to the notion of state sovereignty. While many might claim that the Internet and the cyber domain show the weakness in sovereignty, they do not do away with it. Indeed, if we are to learn anything from the history of private enforcement and state jurisdiction, sovereignty requires that the state sanction such behavior. The state would have to issue something tantamount to a letter of marque and reprisal. It would have to permit a private individual or company to seek recompense for its damage or data lost. Yet this is, of course, increasingly difficult for at least two reasons. The first is attribution. I will not belabor the point about the difficulty of attribution, which Lin seems to dismiss by stating that “the identities of even true pirates and robbers–or even enemy snipers in wartime–aren’t usually determined before the counterattack; so insisting on attribution before use of force appears to be an impossible standard.” True attribution for cyber attacks is a lengthy and time-consuming process, often requiring human agents on the ground, and it is not merely about tracing an IP address to a botnet. True identities are hard to come by, and equating a large cyber attack to a sniper is unhelpful. We may not need to know the social security number of a sniper, but we are clear that the person with the gun in the bell-tower is the one shooting at us, and this permits us to use force in defense. With a botnet or a spoofed IP address, we are uncertain where the shots are really coming from. Indeed, it makes more sense to think of it like hiring a string of hit men, each hiring a subcontractor, and we are trying to find out who we have a right of self-defense against; is it the person hiring or the hit men or both?
Second, even if we could engage a cyber letter of marque we would have to have some metric to establish a proportionate cyber counter-attack. Yet what are identities, credit card numbers, or other types of “sensitive data” worth? What if they never get used? Is it than merely the intrusion? Proportionality, in this case, is not a cut and dry issue.
Finally, if we have learned anything about the history or letters of marque and reprisal, then it is that they went out of favor. States realized that private enforcement, which then turned to public reprisals during the 18th to early 20thcenturies, merely encouraged more force in international affairs. Currently, the modern international legal system calls acts that are coercive, but not uses of force (i.e. acts that would violate Article 2(4) of the United Nations Charter), countermeasures. The international community and individual states not longer issue letters of marque and reprisal. Instead, when states have their rights violated (or an ‘internationally wrongful act’ taken against them), they utilize arbitration or countermeasures to seek redress. For a state to take lawful countermeasures, however, requires that it determine the responsible state for the wrongful act in question. Yet cyber attacks, if we are to rely on what the professional cybersecurity experts tell us, are sophisticated in that they hide their identities and origins. Moreover, even if one finds out the origin of the attack, this may be insufficient to ground a state’s responsibility for the act. There is always the deniability that the state issued a command or hired a “cybercriminal gang.” Thus countermeasures against a state in this framework may be illegal.
What all this means is that if we do not want ignore current international law, or the teachings of history, we cannot condone private companies “hacking back.” The only way one could condone it is for the state to legalize it, and if this were the case, then it would be just like the state issuing letters of marque and reprisal. Yet by legalizing such a practice, it may open up those states to countermeasures by other states. Given that most of the Internet traffic goes through the United States (US), that means that many “attributable” attacks will look like they are coming from the US. This, in turn, means that many states would then have reason to cyber attack the US, thereby increasing and not decreasing the likelihood of cyberwar. Any proposal to condone retaliatory private enforcement in cyberspace should, therefore, be met https://www.youtube.com/watch?v=Jxe6iHDTolw&feature=youtu.be with caution.
CONTINUE TO: PART 10 – The Spirit Behind the Craze