Modernizing Prize Courts for Letters of Marque in the United States
How an overlooked constitutional tool could help the United States respond to a changing world order.
Aiden Buzzetti is the president of the Bull Moose Project, an organization advocating for populist conservatism in Washington, D.C. He holds a B.A. in Political Science from American University.
Editor’s Note: A version of this piece was first published by the Defense Analyses Research Corporation (DARC). It is reprinted here with permission.
“Commerce is the source of wealth, and wealth furnishes the sinews of war.”
—Jean Baptiste Colbert
Introduction
The United States Constitution reserves for Congress a power that many Americans have forgotten exists: the authority to issue letters of marque and reprisal. This delegation, enshrined in Article I, Section 8 alongside the power to declare war, raise armies, and provide and maintain a navy, represents one of the most fascinating intersections of private enterprise and national security in the American legal tradition.
The practice of issuing letters of marque and reprisal began as ad hoc retribution, where aggrieved parties provided lists of losses from hostile raids to their kings and convinced the crown to sanction a response. By the sixteenth century, privateering had evolved into a formal system throughout the European world. Nations without substantial naval resources utilized privateers to supplement the limited power of their fleets—which were often engaged in escorting merchant vessels—to scare off others.
The practice flourished during America’s early conflicts, particularly the Revolutionary War, the Quasi War, and the War of 1812. Between 1776 and 1783, approximately 800 American privateers captured or destroyed nearly 600 British vessels, disrupting supply lines and forcing the Royal Navy to divert resources to protect merchants and the convoys supporting its North American operations.
Prize courts played a major role in facilitating this private warfare, adjudicating the value—and validity—of captures worth millions of dollars and providing crucial revenue for the fledgling nation while simultaneously damaging British commercial interests.
Letters of marque have fallen into disuse—but not constitutional invalidity. Letters of marque have fallen into disuse—though not into constitutional invalidity. Privateering declined globally in large part due to Britain’s efforts to ban the practice in the nineteenth century. As the world’s dominant naval power, Britain had little to gain from privateering and lobbied to get other powers to abandon the practice, culminating in the Paris Declaration of 1856. Notably, the United States was not party to the agreement and has never officially renounced its right to license privateers.. Now, as we return to a world of hybrid wars and fuzzy lines between private citizens and combatants, we must reconsider our attitude toward old practices rooted in the early modern world, privateering included.
If the United States expects to meet the modern battlefield with the innovation and flexibility needed to fight not just on air, land, and sea, but in space and cyberspace, the constitutional authority to issue letters of marque in areas beyond their historical usage at sea must be reexamined, particularly the adjudication of prize cases and the awarding of remedies to those fortunate enough to carry out private operations in new areas of combat.
Contemporary Approaches to Privateering
While letters of marque may seem like relics of a bygone era of wooden ships and cannon fire, their underlying principle—authorizing private actors to augment state power in contested domains—is relevant to modern security challenges. The twenty-first century presents a complex threat landscape where traditional military responses often prove insufficient or inefficient against asymmetric adversaries and in unconventional operational domains. This environment creates compelling opportunities to reimagine letters of marque for contemporary application. Some members of Congress have recognized this, like Representative Tim Burchett, who introduced the Cartel Marque and Reprisal Authorization Act of 2025.
There are multiple dimensions in which a “letter of marque,” or legal privateering activities, could play a role in the national security strategy of the United States. For instance, Representative Burchett’s bill very clearly targets cartel members. Other proponents have focused on how letters of marque could be used against the merchant shipping of adversaries, such as China, in wartime.
Irregular naval warfare and piracy continue threaten global shipping lanes, particularly in the Gulf of Aden and Southeast Asia. U.S. naval capacity is declining and patrolling the oceans requires extreme force projection. Authorized security vessels could supplement U.S. forces in anti-piracy operations, particularly by escorting merchant vessels. Or, as Jeffrey W. Jaeger wrote for the U.S. Naval Institute privateers could be used to defend other nations from Chinese fishing fleets, which exploit the fisheries of other countries in a form of asymmetric commercial warfare.
Counter-terrorism and asymmetric warfare scenarios present additional opportunities. Private military contractors already operate extensively in conflict zones, but typically under direct contractual arrangements with national governments. A letter of marque framework could provide alternative legal structures for operations against non-state actors, particularly in ungoverned or under-governed spaces where traditional military intervention proves politically or practically challenging. These modern privateers might focus on disrupting terrorist financing networks, interdicting illicit supply chains, or gathering intelligence in denied areas, with prize courts ensuring operations remain accountable and aligned with national objectives.
But perhaps the most revolutionary application of privateering is in cybersecurity or other aspects of “fifth generation warfare.” Adversaries like China, Russia, and Iran already use these tactics against the United States. Why not replicate them?
The concept of “cyber letters of marque” could authorize private cybersecurity firms to identify, track, and potentially counter malicious actors responsible for attacks on critical infrastructure or intellectual property theft. Unlike traditional privateering, which focuses on physical capture, cyber privateers might focus on data recovery, botnet disruption, or even counter-exploitation of adversary systems.
There is also a digital currency component. Cartels smuggle weapons, drugs, and people in and out of the United States. The recent designation of many cartels as foreign terrorist organizations will cripple their involvement in banking systems, but plenty of criminal enterprises operate using bitcoin and other cryptocurrencies. Perhaps a cyber-privateer could be engaged to seize as much cryptocurrency and assets as possible, and keep a percentage of the proceeds? This could also work for state or non-state actors under U.S. sanctions, as well. The U.S. government already seizes bank accounts and freezes assets, but these actions have a limited impact in countries outside America’s reach. We could change that.
Opening up cyberspace to licensed American privateers requires a system of oversight. A modernized prize court system would need to adjudicate these digital “captures,” verifying that actions remained within authorized parameters and distributing recovered assets or awarding bounties.
Space, too, is ripe for privateering. Elon Musk’s SpaceX is, so far, the only company capable of bringing American astronauts back home, but the inability of the government to play its own role in their release is disheartening and illuminating. More and more countries are starting to play in space; as those domains become congested and contested, private companies (many of whom already possess their own capabilities) can be contracted for security operations.
Authorized private space operators could monitor, intercept, or neutralize hostile satellites or provide rapid reconstitution of damaged space assets during conflict. Prize court adjudication would verify compliance with space law and ensure operations remain within prescribed limits. The militarization of space is controversial, but it is happening nonetheless. It is entirely possible that more asymmetric forms of warfare pose a significant threat in space in the future.
Again, to expand letters of marque to this new domain would require a functional prize system. Many cybersecurity threat-hunting operations, counter-piracy efforts, and satellite servicing missions already operate on commercial models. A modernized prize system could enhance these incentive structures, directing private-sector capabilities toward national security priorities without requiring direct government funding or control.
The Need for a Specialized Prize Court
The historical prize court system in the United States suffers from fundamental problems that render it unsuitable for contemporary application without significant modernization. The contemporary applications listed earlier, particularly in cyber and space, are both technically and situationally complex.
Prize court procedures were designed for an era of naval warfare where evidence was fairly straightforward, and the legal or technological complexity surrounding prizes was minimal. Ships, cargo, and written documentation constituted the primary evidence in adjudications, as well as direct statements from the officers involved.
The court system itself was fairly simple, as well. Under current U.S. law, district courts have original jurisdiction for prize cases and wide powers to determine the eventual disposition of the seized property. It may be necessary for Congress to adjust these statutes to facilitate a modern system for letters of marque.
The first “tell” that prize law is outdated is linguistic: it relies upon the term “vessel”—although the text was updated to include “aircraft” as a type of vessel. This requires us to tackle two problems: updating the system to accommodate present-day technological complexity, and implementing fee structures suited for modern contraband and digital goods.
The issue of explicit legal jurisdiction is not necessarily the most difficult to resolve on paper. Prize courts operated within clearly defined maritime boundaries where international law governing capture was settled, and the district court structure is a holdover from an era where you needed to physically sail a vessel into port. If there were to be letters of marque in the cyber domain, for example, there would be no clear way to “return a prize,” unless one were to use the state of incorporation to determine the court of jurisdiction. That would mean relying on personnel with little specialized knowledge.
The wide spectrum of potential uses for letters of marque would impose more administrative requirements on courts, like SCIFs to review classified information and clearances for judges. The best solution would be to create an Article III court through an Act of Congress, similar to the Foreign Intelligence Surveillance Court, to streamline any operational procedures and centralize the legal knowledge, as well as precedent, within a single court system.
Modern Models for Distributing Remedies
Physical possession of vessels and cargo is no longer the only measure of ownership or seizure, and it’s important that the United States forge the future of prize law in a deliberate, reasoned, and controlled manner, given the complexity of dealing with digital assets, contraband, and space operations.
Historically, if a prize was determined to be “lawful,” the goods were sold at auction and the proceeds distributed among the crew. Private actors were allowed to do what they wished with their share—often after the government took a cut. Privateers, as private actors, were allowed to split the awarded remedy for the prize in any manner they chose.
U.S. naval officers and crew, however, were bound by different rules, where proceeds were remitted to the government and split among the crew by rank.
Allowing the government to assume a share of the proceeds for the sale of physical or digital assets would provide a “pay-for” mechanism on top of authorized funds. This would ideally create a self-sustaining privateering system and keep the specialized court insulated during budget debates.
A modern remedies system would need further innovation to work in the modern day. Physical assets, if taken, could still be auctioned off by the government, and proceeds split. Digital assets, like cryptocurrency, would also be easier to distribute to parties that seize them from sanctioned individuals and criminal organizations. To the extent that letters of marque would be used against cartels specifically, the system would need to be prepared to deal with the seizure of drugs and recovery of trafficked individuals. Bounty hunting for individual persons is not unknown even in the modern day. If the government were to issue letters of marque against a cartel, they could pay a bounty for every captured cartel member and also provide a bounty for persons recovered from trafficking or enslavement. With drugs, Congress could set a price that it would be willing to pay per pound of illicit drugs seized and turned over to the relevant law enforcement agency for destruction. These kinds of incentives would discourage indiscriminate violence and temptation to hide drug seizures for resale and profit.
On the extreme side, if a letter of marque were issued to, say, take down the communications of a particular adversary, Congress could authorize a “fee-per-minute” method, wherein the privateer would receive a set rate for the duration of the attack.
It is entirely within Congress’s purview to set benchmarks for which companies are allowed to participate in certain risk categories, and how they should be compensated. Higher risk operations could bring greater rewards or a larger cut for the privateer, subject to any qualifying standards specified by Congress.
Ultimately, the function and structure of assigning remedies is up to Congress, but it would be prudent for any new legislation focused on letters of marque to provide multiple methods of compensation and rates, while the Article III federal court would determine the legality and worth of the seizures, manage the distribution of assets, and ensure the private party did not exceed its remit or violate any restrictions.
Conclusion
Congress must provide the foundation for any revival of letters of marque and prize courts, as it possesses the power to create lower courts and authorize the president to act on any number of issues. In doing so, it can ensure that the return of privateers to American warfare is done effectively and in full alignment with military and diplomatic objectives.
Congress should pass a “Letters of Marque Authorization & Regulation Act,” which would take the form of a comprehensive rather than domain-specific authorization bill, and focus broadly on the judicial and executive implementation mechanisms, like encouraging a privateering office within the National Security Council, establishing qualification and bond requirements, and creating the United States Court of Marque and Reprisal.
The constitutional authority to issue letters of marque and establish prize courts remains a dormant but valuable instrument in America’s national security arsenal. While privateering was focused primarily on naval warfare, the concept provides an opportunity for the United States to achieve its strategic goals and leverage latent talent in the private sector.
The global order is rapidly changing, and this constitutional tool should not be kept off the table.
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