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

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.