SOURCE: The Forward
July 31, 1998
Alisa's Marque
The express power to "grant letters of marque and reprisal"... is often a measure of peace, to prevent the necessity of a resort to war. Thus, individuals of a nation sometimes suffer from the depredations of foreign potentates; and yet it may not be deemed either expedient or necessary to redress such grievances by a general declaration of war. Under such circumstances the law of nations authorizes the sovereign of the injured individual to grant him this mode of redress, whenever justice is denied to him by the state, to which the party, who has done the injury, belongs. In this case the letters of marque and reprisal...contain an authority to seize the bodies or goods of the subjects of the offending state, wherever they may be found, until satisfaction is made for the injury....
That excerpt from the Commentaries on the Constitution by Justice Story was wired to us the other day by Stephen Flatow, the father of the young Jewish woman from New Jersey, Alisa Flatow, killed in 1995 by an Iranian-funded terrorist attack at Israel. We had called him to ask about letters of marque and reprisal because of a little debate that has arisen over the now-famous lawsuit he has brought against Iran under the new anti-terrorism law. A lot of us have been concerned that it's poor public policy to deal with terrorist states by litigation. Or, as someone asked us the other day, why is the country transferring Article I matters to Article III courts. It was a reference to Article I of the Constitution, in which powers are delegated to the Congress, and Article I, which vests the judicial power in one Supreme Court and such inferior courts as Congress sets up. The question sent us scurrying to the Constitution to see just what the Article One powers are. It turns out that in the same clause in which Congress is granted the power to declare war it is also given the power to grant letters of marque and reprisal. They are license to private persons to seize enemy vessels and individuals and goods on the high seas. Letters of marque have gone out of use since the middle part of the last century, but the authority is still there in the Constitution. At the bottom of his wire to us Mr. Flatow writes: 'Maybe the Anti-terrorism Act is a letter of marque with a fancy title." Of course, he didn't mean that in the literal sense, but the point is there is plenty of Constitutional bedrock on which to base the idea that Mr. Flatow can be empowered to carry on this fight. Justice Story adds, incidentally, that the power of reprisal is "plainly derived from that of making war" and "often ultimately leads to a formal denunciation of war, if the injury is unredressed."
SEE ALSO:
"REGULATING THE NEW PRIVATEERS: PRIVATE MILITARY SERVICE CONTRACTING AND THE MODERN MARQUE AND REPRISAL CLAUSE" by Matt Gaul here.