In a 2018 Defense News article, The Honorable Mark Buzby, retired Rear Admiral and head of the Department of Transportation Maritime Administration, reflected on the Navy's inability to escort the massive sealift operation that would be required in the event of a long-term major conflict. (2) This deficiency presents great strategic risk for the United States, as each merchant vessel represents an invaluable link in the sealift capacity required to sustain such an effort. It also poses a moral quandary as merchant ships and their crews are not armed to defend against modern threats, such as hypersonic missiles and satellite-based interdiction, which leaves them exposed to grave danger.
The United States has an opportunity now to modernize the protection of our merchant fleet by advancing the law of self-defense and to press that legal framework outward so that it becomes recognized international law. Simultaneously, we must evolve the military culture to embrace this evolution in law so that the United States can achieve both the strategic and moral imperative to defend the merchant fleet to ensure mission success.
LOOKING TO THE PAST
In the international community, protecting the merchant maritime fleet dates back to the days of the Barbarossa Brothers, Captain Kidd, and Blackbeard. Often sanctioned by the government, pirates typically began as licensed privateers, like Sir Francis Drake, who was famously licensed by the English government to attack Spanish shipping, and subsequently knighted for his attacks by Queen Elizabeth I. (3) Historically, privateering was the way merchant ships protected themselves from pirates. (4) Letters of Marque were issued to private entities in exchange for protection or for capturing pirates. (5) In the modern era, pirates take hostages for high ransoms. (6) However, today, protecting the merchant maritime fleet from piracy is more complex from a legal perspective. The 1856 Paris Declaration proclaimed privateering illegal internationally, and while the US is not a signatory, we have not used privateering or Letters of Marque since the War of 1812. (7) Regardless of the limitations imposed by the 1856 Paris Declaration, the international community has armed their merchant fleets during times of conflict, such as World War I (WWI) and World War II (WWII). (8)
The United States also has a long history of arming its merchant ships in times of war. During WWI, President Woodrow Wilson issued an Executive Order authorizing the arming of US merchant ships in March 1917 in the wake of continuing German U-boat attacks on US shipping. (9) In the years preceding WWII, in an effort to keep the US out of the issues embroiling Europe, the US Congress passed the US Neutrality Act of 1936 (Neutrality Act), which (in part) made it illegal to arm merchant ships. (10) However, as the conflict grew, Congress amended the Neutrality Act in November 1941, authorizing the arming of US merchant ships. (11) Specifically, Congress provided that "the President is authorized, through such agency as he may designate, to arm, or to permit or cause to be armed, any American vessel as defined in such Act." (12) In the aftermath of WWII, Congress took further steps to establish this provision as a permanent fixture in US law when in 1948, it passed "An Act Relating to the Arming of American Vessels." (13)
This provision of US law, in only slightly modified form, remains in effect today. Specifically, under 10 USC [section] 261, the President "through any agency of the Department of Defense designated by him, may arm, have armed, or allow to be armed, any watercraft or aircraft that is capable of being used as a means of transportation on, over, or underwater, and is documented, registered, or licensed under the laws of the United States" at any time "when the President determines that the security of the United States is threatened by the application, or the imminent danger of application, of physical force by any foreign government or agency against the United States, its citizens, the property of its citizens, or their commercial interests." (14) Although no US President has had occasion since WWII to direct the arming of US merchant ships, the President has the authority under US law to direct such arming and broad latitude to determine when such arming is required. (15) Given the current threat environment, the need...