But see DeWitte, supra note 26, at 132 ("The United States, however, is not a signatory to this treaty, and Congress could revive letters of marque and reprisal
at any time.").
It makes the president commander in chief, (27) but at the same time it gives Congress many war-related powers, such as the power to declare war, to raise and support armies, to make rules for the government and regulation of the armed forces, and to grant letters of marque and reprisal. (28) The historical use of the term commander in chief points to a narrow power, (29) but the limited war-related debates at the Constitutional Convention (30) and during ratification (31) focused mostly on war initiation and the treaty clause, not the actual conduct of war.
Time has partially obscured, for example, the meaning of textual provisions such as "Letters of Marque and Reprisal" and "Captures on Land and Water." (48) Beyond simply making originalist analysis more difficult, fundamental changes in how war is waged may also make formalist interpretive methods less normatively attractive.
Consistent with a narrow understanding of "Commander in Chief," Article I gives Congress the power to "raise and support Armies," (127) to make rules for "the Government and Regulation of the land and naval Forces," (128) and to "declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." (129) These last three powers, named together in Article I, Section 8, Clause 11, were well known under international law at the time the Constitution was adopted.
Letters of marque and reprisal, granted as early as the twelfth century, were designed to bring the anarchy of retaliation under the rule of law.
The great advantage of holding a letter of marque and reprisal was that the enemy recognized it, and it distinguished the privateer from a pirate.
The Law of Prize: Letters of Marque and Reprisal and Rules Concerning Captures on Water
According to the Oxford English Dictionary, the first recorded use of "letters of marque and reprisal" was in an English statute in 1354 during the reign of Edward III.
(23) "Reprisal," as used as a term of art in the phrase "letters of marque and reprisal," however, was to be distinguished from the colloquial use of "reprisals" to signify retaliatory acts during war.
As in the early years of our nation, Congress could issue letters of marque and reprisal
authorizing private parties--individuals or corporations--to go after pirates and/or terrorists.
* Issuance of letters of marque by Congress authorizing action against terrorists responsible for attacks on American interests, under the constitutionally enumerated congressional powers to "define and punish piracies" and to "grant letters of marque and reprisal
If the attack was perpetrated by a quasi-state terrorist network, such as that operated by Osama bin Laden, the Constitution provides the means to respond: Congress has the authority to "define and punish" such crimes as piracy and terrorism, and to grant "letters of marque and reprisal
" against the likes of bin Laden should he or his associates bear the responsibility for these attacks.