Privateering, the American Revolution, and the Rules of War: The United States Was Born in "Terrorism" and Piracy

News Abroad

Mr. Lemisch is Professor Emeritus of History at John Jay College of Criminal Justice of the City University of New York. He is author of Jack Tar vs. John Bull (1997); On Active Service in War and Peace: Politics and Ideology in the American Historical Profession (1975); and numerous articles on history and left politics and culture, in academic journals and journals of opinion. In this article, he borrows from his "Listening to the 'Inarticulate': William Widger's Dream and the Loyalties of American Revolutionary Seamen in British Prisons," Journal of Social History, III (Fall 1969), 1-29.

The rules of war are laid down by militarily strong nations. These nations define their modes of making war as legal (although they do not always abide by their own rules), while criminalizing alternate modes of warfare rising from the limited strength of the militarily weak. During the American Revolution, the U.S. was militarily weak. It compensated for that weakness at sea by engaging in a very effective form of legalized piracy called privateering. Privateers were denounced by the British in ways that resonate with the denunciation of terrorists that we hear these days. When these Americans were captured by the British, they were not recognized as legitimate prisoners of war but were rather held in special camps, with reason to expect they would be hanged. After the Revolution, the U.S., as a small-navy nation, continued to cling to this mode of warfare, and refused to abide by international bans of privateering until it became a large-navy power and finally rejected privateering.

By the time of the Revolution (1776--1783), privateering had become an old American institution and industry, which lured the young to sea with seductive promises of a share of the booty. Although privateers were private vessels, they were armed and governmentally licensed, with"Letters of Marque." (In the Revolutionary era, Congress authorized privateering in March 1776; and Article I, section 8 of the Constitution gives Congress the power"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.") Heroic tales of John Paul Jones aside, there was not much of a U.S .Navy during the Revolution. The U.S. forces at sea were primarily privateers, preying on British commerce. They were extremely effective in capturing British merchant ships, cutting off British supplies and raising insurance rates for shipping. Although they did not constitute a US Navy, American privateers were a significant presence at sea, and played an important role in the success of the Revolution.

When privateersmen were captured, they were not recognized as prisoners of war, since they were civilians, and civilians of rebellious colonies to boot. They were held indefinitely in special camps, in particular the notorious prison ship Jersey, in the Wallabout Bay off Brooklyn, and in Mill and Forton Prisons in England. These were places of bad food, overcrowding, bad health, brutal guards and harsh punishment. (A British Peer, friendly to the American prisoners, responded to the statement that Mill was run by a"dirty fellow":"Government keeps dirty fellows, to do their dirty Work.")

During the Revolution, these three complexes held upwards of ten thousand and perhaps as many as twenty or thirty thousand captured American seamen. The Americans were not granted the recognition of prisoner-of-war status, but were rather deemed rebels, pirates, murderers, candidates for hanging, detained under a suspension of habeas corpus and ineligible for exchange during most of the war. Prisoners taken into Mill were told that they were committed"for rebellion, piracy, and high treason on his Britannic Majesty's high seas, there to remain during his Majesty's pleasure, until he sees fit to pardon or otherwise dispose of you." Americans used what the British defined as illegitimate means in their quest for legitimacy and independence. Today's detentions by the U.S. are very similar to what was done to Americans by the British during the Revolution.

At the end of the War for Independence, Benjamin Franklin -- who had done his best to help captured Americans in British prisons -- attempted unsuccessfully to write into the Peace Treaty an article banning privateering in future wars. Although American privateers had been effective, Franklin had admirable and prescient Enlightenment feelings about the involvement of civilians in wars. But Franklin's idealism got noplace. And, so long as the U.S. remained a small-navy nation, it continued to rely on this method of warfare, in the War of 1812 (with Jefferson's endorsement) and beyond. As late as 1856, the U.S. refused to abide by an international treaty banning privateering, stating that, as a small-navy nation, it needed privateers. In the Civil War, Congress authorized the president to commission privateers, and the Confederacy made use of privateers. (Today, there are calls for revival from a few ultra-free-marketers and, from the Nixon Center, as a weapon against terrorism.)

Today's disputes around indefinite detention and the use of terror against civilians should take note of the fact that American civilians were victims of this kind of detention during the Revolution, and the U.S. was born in what was seen at the time by its more powerful adversary as a form of terrorism. Although we are rightly revolted by suicide bombing and other attacks on civilians, this is clearly a method that helps weak powers do battle with stronger powers, partly correcting the military imbalance -- as did privateering. And our country has an extraordinary and continuing record of killing civilians in warfare. Among the powers of the strong is the power to deem such killings by themselves to be legal and proper, while killings by the weak are deemed improper.

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Susan Skrabanek - 9/28/2004

Wait just one minute here....it is a huge mistake to jump to 9/11 as the single flavor of terrorism at play, and I don't think this original article made that connection. Certainly no one disputes that Al Quaida's 9/11 and similar attacks around the world are unjustifiable, and I can understand outrage as the response to drawing parallels between some of the activities of American colonists in this regard. But that assumes that all the people that are currently being labeled as "terrorists" by us are one united ideological group. Clearly, they are not. Just look at the various factions at work in Iraq if you need confirmation of this. That is not to defend the actions of all of these people, or to even say I or anyone else on this discussion board is positioned to sort one kind from another. But it is dangerously simplistic to just dismiss all of the opposition to our actions, particularly in Iraq, as somehow equivalent to 9/11.

For example, please don't forget that while there is a very nice laudable new draft constitution in place in Iraq right now, there are also something on the order of 100 "Orders" that Paul Bremer passed before the transition. For example, Order 39 allows foreign companies to own 100 percent of Iraqi assets outside of the natural-resource sector (which is most of Iraq's manufacturing industries, banking industries, basically everything that isn't oil) and any investors can take 100 percent of the profits they make in Iraq out of the country. They are not required to reinvest one penny, and they are also not taxed on those profits whatsoever. Under the same order, they can sign leases and contracts lasting up to 40 years. While the subsequent Iraqi government can overturn this order, they cannot do so easily or quickly, and in the event they do, the investors are entitled to sue the government for the value of the balance of the contracts. This certainly doesn't square with UN Security Council Resolution 1483 passed May 2003, which while recognizing the US and Britian as Iraq's "legitimite occupiers" and thereby empowering Bremer to enact laws as Iraq's administrator without Iraqi representation, it also still requires that both the US and Britian "comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907.” These laws were created to prevent occupying powers from economically stripping the nations they administer, and provides explicitly that occupiers do not own the various assets of a country such that they can authorize the sale of those assets to third parties. Neverthless, Order 39 was passed, and while we may not hear much about it in this country, the economic effect of this order most assuredly is not lost on the average Iraqi. This, among other far reaching Orders Bremer enacted, was one of the main points of contention Ayatollah Ali al Sistani, as one example, vehemently opposed and threatened to refuse to acknowledge the provisional government, the constitution, or any of Bremer's orders as a result. In light of the fact that the rules of law currently in effect in Iraq make it extremely difficult if not impossible for Iraqis to rebuild and have ownership in their own infrastructure, instead providing unprecedented sweetheart business incentives to foreign investors only, I don't think it is so difficult to understand why foreign businessmen from a broad spectrum of nations have become the targets of choice for horrific acts of violence. In light of Order 39, the rather logical response of the oppressed is, heck, if the occupiers are going to hold a fire sale of all our stuff, maybe we'll just make it too damn scary to show up to the cash register. Given the oppressive nature of the economic circumstances, what should we really expect? Why, if we really want to see Iraqis live autonomous, free lives in a democracy, would we go to extraordinary lengths to cut them out of the ownership aspect of their own assets, while making the same extraordinarily attractive to foreigners? When the British forced the colonists to buy British goods when other countries offered the same products at lower prices, in order to help keep companies like the East India Company from going under, our ancesters said, take your tea and stick it! and we dumped it in Boston Harbor, among many demonstrations of our unwillingness to submit to these unfair, oppressively imposed economic measures. Yet, now we find ourselves in the role of King George wondering why those darn stubborn Iraqis don't just tow the line like we tell them to.

Terrorism is the one effective tool left to the militarily weak when confronted by what they perceive to be intolerable circumstances perpetrated by the militarily strong. You don't have to like it any more than I do, but the parallels between things our forefathers have resorted to under similar circumstances are really not that different. The acts themselves are more violent today, but we by and large live in a more violent world; I doubt seriously if our American Revolution was fought today, that we would be satisfied in expressing our outrage with the British by simply dumping tea in Boston harbor for example.

I'm not defending these people--but I am saying, it is a dangerously simplistic mistake to paint all of these people with the same 9/11 brush, particularly when our own history with regard to resorting to things considered "outrageous" and being "acts of terrorism" is not all that dissimilar. With every act of defiance from the colonists, King George (ha, his name was George too) got angrier and angrier, and attempted to clamp down even harder--and look where that strategy got them.

Feemer - 12/14/2003

If you thick it bias to allow the content to be mostly anti-american then i guess you agree that the western media is bias in the opposite direction.

Zach White - 10/9/2003

I introduce to you all your average college student. Thank you, sir, for such a vivid display of intelligence, sincerely. In no way have you just aided in the furthering of a stereotype, one that paints us as gibbering idiots who'll do anything for attention. Indeed, let it be known that none of us actually give a damn about furthering our education. We're all just in it for that piece of paper that'll help us compete in the job market.

Your sense of humor is impressive. You DO know that non sequitur humor became old a long time ago, yes? Same goes for poo and fart jokes.

Have fun with your drinking games, buddy.

Stephanie - 10/9/2003

I would like to say right off the bat that I am reading this article for a history class, and that would explain the immature and grossly misspelled messages that are above. I do want to say, that the right-wing pseudo intellectuals become enraged by anything that smells slightly of anti-American sentiment, and even things that don't. The author of this article is simply comparing the means by which these revolutions took place. One had a morally sound reason; the other has a religious radical motivation. These are two completely different motivations. This article is not treason, nor is it anti-American, rather it is a logical analysis of history. What this assignment has taught me, if nothing else, is that I do not know who to trust, when looking back on history. How can I be sure that I am being told the truth?

Brooks Bockelman - 10/8/2003

This response is toward all the readers out there who have no idea what they are talking about. Obviously, many of you have never herd of heroification. Heroification is where our, the United States, textbooks use a degenerative process to make people over to be heroes. Basically the educational media fail to teach the truth, in an effort to clear any blemishes from our past. Our country doesn't want to admit that we have done many things that we would look down upon. Many of the people that respond to this article are very naive in that they seem to think that our country does no wrong. Well, they are wrong and they need to know that our country has plundered, stolen, and even killed many innocient civilians. Plus they need to stop putting down Jessie Lemisch, he is by no means an anti-American. He just understands how the rules of military tactics work, and that there is always an imbalance in military powers. And he is also right in that privateering, and other forms of terrorism, is just a method for the "underdog," to balance out the tower.
Don't get me wrong, I by no means believe we deserved the 9/11 attacks, but people who read this article need to understand the point of the article, and not focus on the relationship to the 9/11 attacks.

Turd Burglar - 10/7/2003


tim thomas - 10/7/2003

i have never read a better article in my life, this really hits the spot. The way this autor uses his words really makes a person think. oh yea, i am also a doushe bag!

mike hunt - 10/7/2003

this writer is just saying that the writers of your dear textbooks just put what the populous this country want to be toold. you bunch of tools!

Erica - 10/6/2003

That was mature. At least Don puts up an applicable argument instead of turning an intelligent debate into a let's-see-who-can-swear-the-most-to-make-the-other-mad war.

Brad Knight - 4/2/2003

Be aware that W.P. Fallin runs a bulletin board where you can discuss current affairs and politics.

You are welcome as long as:

You hate the Democratic Party
You hate Bill Clinton
You hate Hillary Rodham Clinton
You hate France
You hate the UN
You hate Germany
You hate Illegal Immigrants
You hate Liberals
You hate the European Union
You hate the Euro
You hate Islam
You hate Socialism
You hate the New York Times

And you love...

Snickering at the weak and "stupid"

Jessie - 3/25/2003

They did however rape Vietnamese women and children, killed the innocent and massacred in the name of "freedom." Not just in Vietnam but to list the countries affected by American terrorism would take too long. Don't get me wrong, innocent people of 9/11 did not deserve what they got. But the American government's arrogance, ignorance and disregard for nations that do not uphold American interest will all but assure these acts will be repeated.

Jessie Nguyen - 3/25/2003

You are naive and misinformed. In your eyes, your military fights with honour and only against those who are able to retaliate. Millions across the globe KNOW otherwise. Amerian Terrorism is prevalent but not acknowledged by its citizens because they're brainwashed. Don't take this as a personal attack. Instead take the opportunity to research the atrocities and crimes committed by troops in Vietnam, Laos, Cambodia, El Salvador, Cambodia...many countries have suffered at the hands of the US Army.

To strengthen your support for your government, it is necessary to examine the validity of claims made against it. This will help you understand more and beyond what is taught at these fine educational institutions.

KCStylee - 2/17/2003

Don is a dick. People are entitled to their opions shit head. Shut the fuck up and stop arguing.

Chris Pulakos - 12/9/2002

To many times we judge others, before we judge ourselves. This is just another example.

Benjamin Raty - 10/6/2002

I see your points, and thank you for addressing mine. I suppose I was speaking in a more general sense; I wasn't addressing this article about the colonists privateering, nor was I expressing confusion over Al Qaeda's stated goals and plans.

What I was referring to, more specifically, is that in our desire to defend ourselves, I worry that we may be overlooking our own contributions to this crisis. No, I am not saying we should curl up in a ball and allow our enemies to cruelly destroy and kill us, nor should we assume responsibility for the crimes committed by them last Fall, or at any other time. Instead, I am suggesting that, when the smoke clears, perhaps we should take a good hard look at ourselves to be certain we're doing everything we can to be as blameless as possible in the way we conduct ourselves throughout the world. Perhaps we should begin examining ourselves now, and do so through the lense of history.

If there were no moral obligations on anyone's part, then this argument comes down to a question of strategy and tactics - how do We defeat Them? Naturally in such a setting questions about our involvement in the events leading up to a conflict would be irrelevant. However, if our nation really was founded upon principles, then principles should be the primary guiding force in our policies (foreign and domestic). I don't believe that revenge, arrogance, and a myopic view of our own importance is of much help.

Nit-picking for the sake of nit-picking is absurd and cowardly, but examining our weaknesses with the intent to strengthen ourselves and make improvements can be of much value, if the chorus of voices against such efforts do not drown them out completely.

I'm not very succinct, for which I apologize. What I'm ultimately trying to say is, just because They committed a terrible crime against Us does not then mean, ex post facto, that we're spotless ourselves. Al Qaeda's lack of morality does not somehow eradicate our own errors, and if we honestly look at our past behavior, we've certainly helped to fuel many of the fires that are now burning bright against us. Regardless of our mistakes, people such as Osama bin Laden are free to choose how they will respond, and they alone are responsible for the choices they make.

Examining our mistakes now at the expense of protecting ourselves would be folly. Instead, let us defend ourselves, eradicate the threats against us (Al Qaeda, et al) and carefully monitor our policies and principles in the future so that we don't create another Osama bin Laden or Saddam Hussein (whom we initially "cultivated" as assets against other failed projects of ours, such as Iran). We may be quite content and happy with our society and our technological, military, and economic prowess, and why not? However, to allow this contentment to develop into arrogance toward the rest of the world is foolish. The United States is great for the intangibles it represents, not the material wealth it has accumulated.

Jake Scott - 9/30/2002

I don’t believe that the majority would agree with his statements on terrorism simply because they misinterpret what he’s really trying to say. I don’t think that Lemisch is trying to justify terrorism today through our nation’s use of it long ago; he’s simply trying to explain the practice of terrorism and the repetitious cycle of how it has appeared and the manner it has been dealt with throughout history. It has hit home to me now that there are masses of closed-minded people living in our world today just through reading a few responses to Lemisch’s writing. In one of these posted messages, William D. Brewer, a “well-educated and logical” man states “by churning out self-hating, specious trash like this, you demean yourself”. He also says “I am aware of my country’s failings, past and present. But I love it nonetheless, and I find no reason to manufacture reasons to hate it”. Sadly, I believe that this man’s view embodies the negative ideals that this essay is primarily written about; if our nation’s history isn’t totally positive, righteous, and full of reason, we should totally wipe it from the history books and from any mention of it whatsoever. America, past and present, is full of virtues and vices. God help William D. Brewer and the masses like him if they ever have to think about a debatable point in history ever again. It may be hard for us to link our country’s acts with some sort of terrorism in the American Revolution, but isn’t asking the question “why?” what education is all about? Eat that, William D. Brewer.

Josh Lawrence - 9/15/2002

Perhaps it may also occur eventually--and hopefully--to Professor Lemisch that the American "Revolutionaries" were not, as popularily described, revolutionaries; they wanted things to stay as they had been for the near two centuries that there had been British colonies. The colonies each had a legislature that was often quite comparible to the legislature put into effect after they won their revulotion. The "terrorists of the 18th century" were protecting an invasion of a tyrranny in which their main qualm with was Britain's refusal of acknowledging the colonial legislatures.

I may be mis-informed, but I do not believe that the Taliban has been invaded by a tyrranny that wished to disrupt is legilature; rather, I believe that the Osama's regiment attacked civilians because of their cowardly nature.

If the idea that the U.S. attacked civilians, as the terrorists of today have, is still held by people then perhaps they would want to consider this. The United States targets militaries that are designated for combat with foreign peoples in time of war. Germany and Russia targetted civilians and only fought other armies when they couldn't avoid it. The Taliban, at the bottom of the list, targetted the World Trade Center, because of what it was: a WORLD TRADE CENTER and the most populated area on earth (if you look at it two dimensionally). The latest's quest is for world domination while the earliest's mission is to try to create world agreement enough to maintain peace.

Lastly, I would just like to give my credentials. I am a 17-year-old student who has been at college for the past year and will have an associate's degree in 8-9 months. If America is worried about it's youth, let them worry about their old; let them worry about their current in power; but first, look at themselves before they look elsewhere. If I am mis-informed, please write a post and I shall research it and try to find the correct--most informed--way to understand history.

Thank you.

Alec Lloyd - 8/26/2002

The questions may be honest, but the argument is not.

We already know why al-Qaeda hates us: they hate us because we are an obstacle to their goal of building a World Islamofascist Empire. How many Bin Laden tapes do you have to watch to figure this out?

They are NOT attacking us because of our 18th century shipping depredations, nor because of differences in environmental policy, corporate accounting errors, the legacy of the slave trade or Japanese internment during World War Two. No nation has ever won a war by trying to "understand" why it is under attack, they win by FIGHTING BACK.

Given the massive preponderence of force we enjoy, it must be pleasant to sit back and nit-pick about America's past evils. However, it is worth pointing out that those "terrorists" WON against a vastly superior power all those centuries ago, in no small part because of a lack of resolve on Britain's part. For this they lost some colonies, but soon recovered. The price of our failure in the present war is the destruction of Western Civilization itself.

Perhaps when the esteemed professor faces a Sharia religious court for crimes against Wahhabi Islam he can point out that we're all terrorists and no one is fit to judge another.

Alec Lloyd - 8/26/2002

I was going to reply, but Mr. Pyle far outstripped anything I could offer. Well done.

HNN should be ashamed to publish this blatant political screed, which any undergrad with a moiety of military history from the period could refute. The only redeeming feature is that it is instructive of how far safe, tenured academics are willing to contort history to blame the country that shelters and sustains them.

This piece is an embarrassment to academia and HNN.

Markham Shaw Pyle - 8/24/2002

Douglas Ryan, too charitably, I would submit, contends that Professor Lemisch has a point, whatever his motives. It is precisely his 'central point' – irrespective of any readings into his text of what may or may not be his agenda – that is facially wrong.

This purportedly 'indisputable' central point – which I think Douglas Ryan correctly abstracts as '... great powers have the major role in defining what methods of warfare are legitimate and what are illegitimate, and therefore what kinds of combatants are entitled to the protections of POW status and what kinds are not' – is simply incorrect.

Imprimis, the law of war is not, as Professor Lemisch would have it, 'laid down by militarily strong nations ... [whose governments] define their modes of making war as legal ... while criminalizing alternate modes of warfare rising from the limited strength of the militarily weak.' The law of war has developed from moral and equitable precepts ultimately religious in their origin, and was developed largely at the hands of religious institutions and individual churchmen and theologians. It was the papacy, long before there was a 'king's peace' to offend against, that declared 'the Truce of God,' Treuga Dei, and called upon successive Holy Roman Emperors as their secular arm to enforce the same. Take the Second Lateran Council of 1139, for instance, and its ban on certain classes of weapon (the crossbow, notably). Just War Theory derives markedly from Aquinas and his Thomist successors on the one hand and from Arminian Protestant Reformers, notably Richard Hooker in England and Hugo Grotius, of course, in Holland, on the other.

Grotius is generally regarded as the father of the modern concept of applying legal principles to warfare; and what has Grotius to say? 'I saw in the whole Christian world a license of fighting at which even barbarous nations might blush. Wars were begun on trifling pretexts or none at all, and carried on without any reference of law, Divine or human,' he says at the outset; and again, 'For God has given conscience a judicial power to be the sovereign guide of human actions, by despising whose admonitions the mind is stupefied into brutal hardness.'

Moreover, in the halcyon Edwardian days that preceded the Great War, it is, I think, universally acknowledged that the Royal Navy was still the classic sample of a pre-eminently powerful navy serving one of Professor Lemisch's Naughty Old Hegemons. Yet it was the British – led by the redoubtable Jacky Fisher – who, at the pre-War Hague Conferences, resisted 'criminalizing' various aspects of naval warfare that in fact were of more utility to the lesser powers than to the Royal Navy.

Not even someone too dim not to recognize the phrase 'left culture' as a peculiarly risible oxymoron could be so silly as honestly to believe that the law of war, a concept evolved by transnational religious bodies, is actually a construct put together by more powerful nations to trammel weaker ones.

Which brings us, secundum, to the fact that Professor Lemisch is pretty evidently not a naval historian per se, whatever his background with the short and simple annals of merchant mariners.

Were he an historian of naval operations and combat, he would recognize that, for example, the privateers of the Elizabethan era were the servants of the two preponderant open-ocean naval powers of the period, England and the Netherlands, and it was Spain that, for all its ponderous capacity to wage land warfare, was the weaker naval power, even after the Portuguese anschluss and despite its Mediterranean experiences, Lepanto included.

In the American Revolution, the British made use of privateers (such as the vessel West Florida, operating out of Lake Pontchartrain) as well, to project added power in such auxiliary theaters as the Gulf of Mexico. The Americans's Spanish allies, under Galvez, captured a dozen privateers in the course of the Revolution. Pace Professor Lemisch, then, it is simply incorrect to say that privateering was eo ipso the weapon and mark of the weaker power, although it has certainly been so used.

I here pause to note that Professor Lemisch's effusions on Ben Franklin's one-man crusade against privateering are a bit curious in light of such facts as that Dr Franklin helped negotiate, and signed, the 1785 Prusso-American Treaty that includes matter of fact provisions for privateering in concert if engaged against a common enemy, that while in Paris during the war he commissioned three privateers himself (the Black Prince, Black Princess, and Fearnot) so as to capture as many RN sailors as possible (thus forcing a cartel of exchange so as to get the imprisoned American privateers out of such places as the Old Mill, Plymouth, and Forton, in Portsmouth), and that Franklin is not recorded as objecting to Art. I, Section 8, of the Constitution in all his time as part of the Convention that drafted that document. A minor point, perhaps, but significant of the sloppiness that pervades Professor Lemisch's argument: particularly in light of

the fact that the Prussian treaty, and contemporaneous treaties and proposed treaties ('of amity and commerce,' usually) between the United States and such comparatively minor states as some of the 'Barbary' statelets, various German and Italian statelets, and, for that matter, decrescent Spain, together were treaties between effective 'equals' in 'power relationships' at least insofar as any naval might was concerned, yet they recognized privateering as legitimate and hardly worthy of remark; and

in light of the other inconvenient fact that, thanks in part to HMG's having already secured final peace treaties with Spain and France, Britain had the whip-hand in concluding the 1783 Treaty, and had the whole thing been about 'power relationships and the way in which more powerful states criminalize weaker states's methods of warmaking,' then – especially with Professor Lemisch's complaisant, anti-privateering Franklin present – privateering would have been banned in the document.

Professor Lemisch's claims again do not pass muster.

It is equally incorrect to suggest that the 1856 Declaration of Paris was an imposition of new and self-serving rules by stronger maritime powers upon weaker ones, just as it is a flat misrepresentation for Professor Lemisch to say the United States 'refused to abide by [this] international treaty.' (What the United States did was decline to join the damn thing, a very significant distinction legally and ethically, and one the professor is anxious to elide for his own, rather obvious reasons.)

In fact, the 1856 Declaration of Paris reads, in pertinent part, 'The Governments of the undersigned Plenipotentiaries engage to bring the present declaration to the knowledge of the States which have not taken part in the Congress of Paris, and to invite them to accede.' That the United States declined the invitation to accede to any such thing is not, as Professor Lemisch would have the unwary believe, proof – he would doubtless say 'further proof' – of American criminality. As the Declaration concludes, '[t]he present Declaration is not and shall not be binding, except between those Powers who have acceded, or shall accede, to it.'

Moreover, Professor Lemisch is again disingenuous in asserting that 'the U.S. refused to abide by [the 1856 Declaration of Paris], stating that, as a small-navy nation, it needed privateers.' The United States declined to accede to the Declaration when a proposed American amendment, exempting all private property from seizure upon the high seas, was not universally accepted. By the same token, the United States has ever since voluntarily abided by the Declaration's precepts, partially in the War Between the States and wholly in the Spanish-American War and all subsequent conflicts.

It may finally be noted that the signatories to the Declaration represented the parties to the Crimean War and its settlement: France, Great Britain, the Ottoman Empire, Sardinia, Russia, the Austro-Hungarian Empire, and Prussia. If Sardinia, Prussia as it existed in 1856, the Sublime Porte, and the Habsburgs represent, as Professor Lemisch necessarily insists they represent, the 'strong naval powers' on a par with Russia and France, much less the British Empire, I have clearly missed one hell of a memo.

Tertium, we come to the most tendentious aspects of Professor Lemisch's repellent little exercise in intellectual dishonesty.

Professor Lemisch's first sleight of hand is to use the word 'terrorism' – a fairly modern word for a phenomenon that is in degree, if not in kind, all too modern – out of context, and apply it indiscriminately to American actions at the time of the revolution (or at least, formally, to what the British allegedly considered American actions to constitute). This is simply false. HMG did not consider the Americans 'terrorists.' The government and the Crown considered them, simply, 'damned rebels.'

The illegitimacy of American privateering was not that it was privateering – God knows there was a hoary British tradition of just that – but that it was American: a rebel government – de facto and precisely not, in the British view, de jure – had neither the right nor the power to issue letters of marque. To the extent there is an iota of truth to Professor Lemisch's assertion that '[w]hen privateersmen were captured, they were not recognized as prisoners of war, since they were civilians,' their alleged 'civilian' status derived not from their privateering, but precisely from a refusal to recognize them as legitimate privateers because they represented 'rebellious colonies to boot.' (Mr Lincoln, Mr Secretary Stanton, and Mr Secretary Welles adopted precisely that reasoning vis-à-vis the Confederate States: the entire Confederate States Navy were, in the Union's view, pirates, because the CSA had not the legitimacy, in Yankee eyes, to commission vessels of war.)

Indeed, you may catch sight of the pea between the thimbles in Professor Lemisch's sleight of hand by considering this statement of his: 'By the time of the Revolution (1776 - 1783), privateering had become an old American institution and industry, which lured the young to sea with seductive promises of a share of the booty.' Note that: 'by the time of the Revolution,' privateering was a long-standing enterprise in the colonies. That can be true if and only if the colonies, at the behest of or at least with the assent of the Crown and the British government of the day, had engaged for some period before the Revolution in privateering on behalf of – you guessed it – Great Britain. And that is of course the case, as Anderson, for example, relates in his recent history of the Seven Years's War: Anglo-American privateers worked with the Royal Navy against a weaker opponent (certainly weaker at sea), the French.

Even Professor Lemisch lets slip the obvious fact, fatal to his argument, that '[t]he Americans were not granted the recognition of prisoner-of-war status, but were rather deemed rebels…. Prisoners taken into Mill were told that they were committed "for rebellion, piracy, and high treason"….' Precisely. It is on par with General Gage's refusal to grant General Washington certain of the courtesies, let alone the customs and usages, of war, because, as he sneered, 'I acknowledge no rank that is not derived from the King.'

Is this uncomfortable fact consonant with the frankly absurd claim that twenty years after the Seven Years's War, Great Britain's quarrel with American privateers was that they were privateers, rather than that they were rebels and thus not legitimately privateers at all? Of course not, and presumably Professor Lemisch is not such a fool as not to know this. Which in turn means he is being ... disingenuous, shall we say?

Having attempted – disingenuously at best – to conflate terror attacks with privateering, the legitimacy of which in fact turned solely on the question of whether or not the commissioning government were itself legitimate, Professor Lemisch begins his second game of three-card monte by trying – pace Douglas Ryan's innocent conviction that Professor Lemisch has no agenda and is not concerned to establish moral equivalency claims – to conflate the Revolution with the motives of al-Qaeda, its methods with theirs, and the imprisonment of Americans as 'rebels' with the detention of unlawful combatants as, well, unlawful combatants.

This is as false as it is contemptible, and it is hard to imagine that the falsehood is not deliberate and witting (when a man who is not a fool acts the part of a man who must be either fool or knave, there are not too many innocent conclusions to be drawn, folks).

What are the evidences of Professor Lemisch's having this agenda? Well, it's hard to beat such expressions of naked animus as 'our country has an extraordinary and continuing record of killing civilians in warfare. Among the powers of the strong is the power to deem such killings by themselves to be legal and proper, while killings by the weak are deemed improper.' (It's even worse that the first statement, at least, is demonstrably false.) But let us set the man's obvious bias aside and consider the merits – if any – of his claims.

Item: the claim that 'Today's disputes around indefinite detention and the use of terror against civilians should take note of the fact that American civilians were victims of this kind of detention during the Revolution, and the U.S. was born in what was seen at the time by its more powerful adversary as a form of terrorism.' To the extent the 'American civilians' referenced are crew members of captured privateers, they were not civilians; it is Professor Lemisch's point in other places that they were PWs being wrongly treated as civilian criminals. The reason for their detention and for the circumstances of their treatment was not that they were 'terrorists,' a word North and Germain would not have recognized, but that they were unlawfully commissioned by an illegitimate rebel government, and were thus – and only thus – traitors.

By comparison, detainees held by the United States as unlawful combatants are not treated or considered as civilian criminals as such (though they may have committed civilian crimes) or as traitors; their assigned status as unlawful combatants derives from a series of international conventions, most recently the Hague and then the Geneva Conventions, and ancillary conventions relative to such matters as the protection of civilians and of commercial aircraft. And these conventions are not the imposed fiats of a few powerful nations, but rather represent the common conviction of nations great and small, the signatories and High Contracting Parties thereto.

Item: the colonists engaged in 'a very effective form of legalized piracy called privateering. Privateers were denounced by the British in ways that resonate with the denunciation of terrorists that we hear these days. When these Americans were captured by the British, they were not recognized as legitimate prisoners of war but were rather held in special camps, with reason to expect they would be hanged.'

The term 'legalized piracy' is an oxymoron. Privateering is precisely not piracy, being undertaken in the service of and by commission of the national government as a measure of war.

Professor Lemisch may, idiosyncratically, find British complaints about American privateering 'resonant' with the civilized world's unanimous condemnation of al-Qaeda, but he offers no discernible reason why anyone else ought. In fact, the British criticism had everything to do with the privateering's being American (that is, rebel-chartered) and nothing to do with its being privateering, as we have seen.

The British refusal to recognize the American seamen as PWs, likewise, was bound up entirely with British non-recognition of the American government they served (a non-recognition that, insofar as the creation of an independent American government was the dispositive issue of the war, could hardly be avoided).

It is impossible for anyone with the least smattering of intellectual honesty to conflate this in any way with the current situation of

detained unlawful combatants

in the service of no government whatever,

taken in arms but not in uniform,

belonging to an organization without any recognizable chain of responsible military command,

hiding within civilian populations,

and regularly engaged in acts of perfidy as defined in international law (to which covenants and conventions the nations of which the detainees are citizens are all signatories. Yes, even Afghanistan and Saudi Arabia).

These detainees are stunningly textbook examples of what unlawful combatants taxonomically ARE, and their treatment is equally a textbook example of what unlawful combatants are to expect under international law.

Item: '[w]hen privateersmen were captured, they were not recognized as prisoners of war, since they were civilians … Franklin had admirable and prescient Enlightenment feelings about the involvement of civilians in wars. But Franklin's idealism got noplace.'

As commissioned privateersmen, these men were not civilians, nor were they non-combatants, save only to an enemy that refused to recognize the legitimacy of their commissioning authority (just as the North would do to Confederate regular naval personnel, let alone privateers). Straining to establish an analogy with current detainees at Guantanamo and elsewhere is liable to give anyone less intellectually boneless than Professor Lemisch a severe hernia.

Item: 'They were held indefinitely in special camps … places of bad food, overcrowding, bad health, brutal guards and harsh punishment. [***] Today's detentions by the U.S. are very similar to what was done to Americans by the British during the Revolution.'

This is simply facially false, and utterly base. Currently detained unlawful combatants in US custody, so far from being condemned to bad food, overcrowding, illness, brutalization, and punishment, are being afforded every privilege they are entitled to under Conventions III and IV of the 12 August, 1949 Geneva Conventions, and it may be a trifle more than they are entitled to (note those documents's references to saboteurs, unlawful combatants, and perfidious acts).

Item: 'Americans used what the British defined as illegitimate means in their quest for legitimacy and independence. [***] Although we are rightly revolted by suicide bombing and other attacks on civilians,' – damned decent of the professor to grant that concession, isn't it? – 'this is clearly a method that helps weak powers do battle with stronger powers, partly correcting the military imbalance – as did privateering.'

By contrast, of course, and leaving aside the incessant false statement that privateering was eo ipso a weapon of the weaker power, our enemies are using what all the world, in conventions too numerous to detail, defines as 'illegitimate means' of conducting hostilities: in addition to which, they are conducting hostilities as a private criminal gang, without even the fig leaf of an affiliation with any present, proposed, or prospective government. They're not even nation-based revolutionaries, they're merely a widespread coalition of racketeers. And notice how the Good Professor manages to sneak suicide bombers – a 'Palestinian' phenomenon – into what purports to be an examination of the methods, motives, and detentions of extremists who have contracted to attack, not Israel, but the United States. Yeah, that was real slick, there.

And what 'quest' are we looking at here? What is the end that the gentleman would insinuate justifies these means? It is at least assuredly not independence (from whom?) or legitimacy: again, the detainees whose plight this is ostensibly about are members of a transnational, non-state criminal gang that has no such purposes. It makes as much sense to speak of their actions in terms of a 'military' imbalance as it would to speak of the Sicilian Mafia as engaged in infantry operations against the police.

No, the harder you look at Professor Lemisch's tissue of tendentiousness, his congeries of falsehoods and half- and quarter-truths, the more you see it for what it is: the scaffolding for his petty, historically false little agenda. And the more it becomes evident that he not only has no point, he has no shame. His propositions are false in detail, deliberately misleading overall, logically invalid, historically inaccurate, and politically and morally despicable.

I wash my hands of the man.

don kates - 8/23/2002

Mr. Karr's comment is simply unresponsive: during WWII, the US and Britain deliberately, INTENTIONALLY, killed many civil-
ians by area bombing Japan and Germany respectively; Japanese troops killed hundreds of thousands of Chinese civilians both directly and by bombing; the Nazis notoriously murdered vast numbers of civilians throughout Europe; under Mao China killed vast numbers of its own civilians, especially during "the great leap forward; Stalin's Russia deliberately killed Russians by the the tens of millions in the 1930s and thereafter
Nothing even remotely comparable in intention and scope happened (by the U.S.) in the Phillipines or other places mentioned by Mr. Karr.

Ronald Dale Karr - 8/22/2002

If one could estimate the numbers of civilians killed by all of the nations in the world in the 20th century, undoubtedly Germany and the Soviet Union would top the list. But who would be next? Japan? Cambodia? China? Iraq? Yugoslavia? Certainly not the land of the free and the home of the brave!?

Or could it be? A lot of Philipinos, Germans, Japanese, Koreans, and Vietnamese fell victim to U.S. bombs and bullets.

I wonder.

John Horst - 8/22/2002

Any point that he might have is lost on his failed attempt at reinventing history, in the same way that Mr. Bellesile's points have been lost in his fantastic account of the history of colonial America. Regardless of how desperately either of these authors want things in history to support their particular agenda, simply stating vehemently over and over again the same misinformation will not make it so.

Douglas Ryan - 8/22/2002

This is not my field, but it seems to me that Professor Lemisch's detractors (how's that for an understated description)are missing or (more likely) distorting his point. Though I admit his title, by announcing that 'The United States Was Born in "Terrorism" and Piracy', might lead one to believe he is morally equating revolutionary-era privateers and modern terrorists, it seems clear to me, upon reading past the title, that he is not doing so. After all, he clearly sympathizes with the former (describing, for instance, the horrors they suffered in prison) and says that "we are rightly revolted by" the actions of the latter.

It seems to me that the main comparison he is drawing is, rather, between England of the late 18th century and the U.S. of today. And it is not (at least, not obviously from the text) a moral comparison he draws but an historical one, between their positions of power relative to their attackers. The central point seems hard to dispute: that great powers have the major role in defining what methods of warfare are legitimate and what are illegitimate, and therefore what kinds of combatants are entitled to the protections of POW status and what kinds are not.

Now, it is not clear to me what Professor Lemisch would say this parallel implies about how we should view today's events and today's Guantanamo detainees. I fear it is this: that Americans should see a glimmer of their former selves in Al Qaeda members, who are reduced to practicing what are generally regarded as illegitimate methods of warfare because they lack the option of exerting power through legitimate means. IF that is his point (and it may not be), I would only respond that while it may be a good argument for granting them more legal rights than they are presently being afforded, it is a weak argument for granting them sympathy, for the glimmer of similarity is very faint indeed. First, the powers of destruction held by well-funded modern terrorists, sheltered by distant foreign governments, are far greater than those available to revolutionary-era privateers, and those powers have all-too-often been exercised in recent years against targets which by no stretch of the mral imagination could be termed legitimate (i.e. military). Second, if one hopes to win sympathy (from me, anyway)for one's use of illegitimate means of securing the legitimate goal of self-determination, one must be able to present credible evidence of prior efforts to achieve that goal through legitimate means. But Usama bin Laden is (or was, if he's dead) no frustrated politician a la John Hancock; he is a bandit who pays for political protection and otherwise shuns formal political processes. Finally, it is doubtful whether Al Qaeda's goal is anything nearly as legitimate as self-determination for Arabs or Muslims or the Third World or whatever; it seems to me that if the organization has any vision of a better world, it is that of a repressive theocracy.

As I say, thought, on the matter of the implications of his parallel for today's problems I may have caught Professor Lemisch's 'drift' all wrong. If so I would be very interested to hear his reply.

John HOrst - 8/22/2002

According to the British 'Cruizers and Convoys' Act of 1708, English sailors were paid handsomely for doing their jobs. It is idiotic to suggest that America invented the concept of
"to the victors go the spoils of war". It is true that the English government often resorted to using pressgangs to man their ships, particularly in time of war, but their primary goal was to attract desirable, able bodied and motivated men. Thus the prize money concept.
The author is confusing English propoganda for an objective observation of the day. The English new right well that in order to maintain support at home for the war in America, they'd have to portrey the patriots as lawless thugs and savages, (e.g., terrorists), definitely in the minority. They would have to impress upon their own society that they were in fact saving the majority of law abiding British subjects in North America from this lawless rabble. Another example of this propaganda was the English attempt at disparaging the practice by American riflemen of shooting British officers in battle. This was yet another demonstration that the rebels were lawless thugs, (e.g., terrorists), intent on undermining the very principles of "civilized" war.
Yet, the Americans did not invent this, (the Prussians did) they simply perfected it. In fact, the English thought it was a good idea too, and allowed Patrick Ferguson to form a select group of riflemen to counter the American sharpshooters.
Additionally, the English army failed to recognize the Militia fighting them in the early years of the war as "legitimate prisoners of war" as you put it, as evidenced by the slaugther of many who attempted surrender at New York and other places (remember "no flint" Grey). But I suppose we should call such famous groups as the Maryland 400 (who Washington lovingly deemed "the old line)terrorists and complete your analogy. Good attempt at revising history, Mr. Lamisch, unfortunately it simply doesn't fly.

Benjamin Raty - 8/21/2002

Disregarding this article for a moment, and speaking in more general terms, the question I have is: what is constructive criticism? It seems, from what I've read, that people only label criticism constructive when it comes in a form that is not threatening; one that they can easily reject, either logically or emotionally.

What is wrong with questioning why other people in the world hate us? Are we so secure in the workings of our nation - especially our foreign policy - that we feel we can do no wrong, and that no other nation or people may have a legitimate grievance against us? Isn't introspection a good thing? As historians isn't it our duty to examine the events of the past so that, among other things, we can offer some sort of explanation for the happenings in our world?

Wouldn't labeling a person as anti-American for questioning the majority imply then that the behavior and ideas of the majority are always justified? If no one raises any critical questions, are we assuming that the majority always acts morally, while by virtue of not being a part of this majority, those in the minority are necessarily in the wrong?

I mean these as honest questions, and not merely an attempt to argumentative. I am simply a student who is a bit taken back by how personal and acidic these arguments have become. If anyone wishes to answer them, I'd be very appreciative.

William D. Brewer - 8/21/2002

I am sure that a lofty academic such as Jesse Lemisch will not be interested
in answering the criticism of a conservative layperson such as myself. But
I found his article comparing U.S. privateers with modern terrorists so
infuriating, I can't help but respond.

Anyone with the slightest acquaintance with history will know that the
assertions made in this article are false, the arguements specious, and the
comparison of privateers to terrorists ridiculous. The obvious anti- U.S.
bias is clumsy, obvious, and offensive in the extreme.

It is well known that letters of Marque and other privateering arrangement
were used by many countries, over many centuries. it is also understandable
that while considered legitimate in the eyes of the sponsor, the privateer
was usually just a pirate in the eyes of the intended victim. But to
suggest that this equates to one man's terrorist being another man's freedom
fighter is ridiculous.

It is true that the history of piracy and privateering contains many
examples of what we would call criminal,barbaric behavior. But I challenge
Mr. Lemisch to present one example of a wartime U.S. privateer deliberately
engineering the mass slaughter of British civilians, particularly women and
children, for the express purpose of terrorizing England.

This equivalence of Privateers with terrorists is little better than a
baldfaced lie, unsupportable by historical evidence or common sense. I
shudder to think how much anti U.S. propaganda and outright nonsense this
malefactor has shoved into the eager ears of unsuspecting students.

I am sure that by now this message has been deleted as an angry rant from
another right wing nut, firmly in the grip of mindless, sheeplike
patriotism. But on the off chance it is being read to the end, I assure you
this is not the case. I am aware of my country's many failings, past and
present. But I love it nonetheless, and I find no reason to manufacture
reasons to hate it, and assume the worst at every turn.

Since 9/11, the academic world has gone into overdrive, imploring us to ask
ourselves why they hate us. Outside of the Colleges, this message has
fallen flat with leaden thump. Ask yourself why. Do you really believe we
are all just mindless, ignorant sheep? I fear many of you do. But rest
assured, I am well educated and logical, and I know exactly why I believe
what I believe, and I have no doubts about where my loyalties lie. There
are many millions who feel as I do. If you have constructive criticism, we
will listen. But by churning out self hating, specious trash like this, you
demean yourself, and detract from the value of any reasonable criticism you
might have.

William Penn Fallin - 8/21/2002

Why do you find it desirable to publish such anti-American propaganda as the one you did on Privateering? Is this your chosen method of subtly informing your readers about just how BAD you think America is as a nation?

The extent of your efforts in trying to legitimize the murderous Islamic terrorists as nothing more than just "good ole boys" fighting for a "legitimate" cause, sets one to wondering if you (perhaps) are on the payroll of one Osama bin Laden or the Royal House of Saud.

Oh yes, one more thing, do you really welcome notes like this or do they get cast aside with the normal disdain of the self appointed liberal INTELLECTUAL?

I know other people have written you but I see no evidence that you even acknowledge them. I'll refrain from any further discussion on your despicable piece until I know that my words are going some place other than your trash bin.

William Penn Fallin
Editorial Columnist
Coffee County News
Douglas, Georgia

Paul Bird - 8/21/2002

I think anyone, especially a professor emeritus, should be careful about ascribing moral equivalency between American revolutionaries and Muslim terrorists. My knowledge of the privateers is minimal, but it sounds like their primary goal was to disrupt trade, not to kill civilians. A vital and fundamental difference. The problem I have with these types of articles is that the authors define terrorism so broadly it becomes a meaningless term.

barbara kessel - 8/21/2002

Jesse Leammish

don kates - 8/19/2002

Piling falsehood on falsehood, the author concludes by asserting that the U.S. has an "extraordinary" record of killing civilians. As any honest evaluator familiar w/ the history of warfare in general, and guerrilla war in particular would say, the U.S. has a very ORDINARY record of murdering civilians, from the Seminole Wars through the Phillipine insurrection to Korea and Vietnam, w/ some tragic episodes in other wars thrown in. Regardless of the nationality involved armies commit atrocities in wartime; and the suppression of guerrillas invariably occurs with particularly hideous atrocity. Compared to the record of European nations in their colonial wars, there is (at worst) nothing extraordinary about the American record.
Reference may also be made to WWII in which the U.S. engaged in terror bombing of civilians in Japan and, to some extent, in Germany as well. Britain's record in WWII is far worse. And, though the Nazis' record as to terror bombing is not nearly so bad, both the Nazis and the Japanese engaged in the torture and murder of civilian populations (and suppression of guerrillas) far beyond anything the U.S. has ever done. Perhaps the author would call the Nazi-Japanese record "super-duper-extraordinary."

don kates - 8/19/2002

Had the author stuck to the fairly meagre facts he provides, the article would not have been publishable. So he had to lard it w/ ridiculous comparisons. There is no comparison at all between privateering and the homicidal barbarity of the Guantanamo pris- oners. To make the two comparable the facts would have to be altered to assume that American privateers boarded British civil- ian vessels, raped children, raped and murdered their mothers -- both common and NEVER punished in Afghanistan under the Taliban -- and also arbitrarily maimed and murdered civilian sailors be- cause of their dress or hair styles; also that American priva- teers wantonly bombarded civilian buildings w/o any provocation and with the only purpose being to kill civilians.