What’s Unconstitutional About Blackwater?

This week Bill Maher’s increasingly far left and out of touch show featured repeat guest Jeremy Scahill, who launched into his usual righteous rant against Blackwater and the evils of hiring mercenary troops to augment American forces in our various ill-considered military deployments overseas.

Some of it was interesting. For example I hadn’t realized that President Obama had increased our overall mercenary deployment by 29% in only 6 months. But Scahill also said something which I found troubling. After listing the usual litany of Blackwater crimes and accusing Eric Prince of being a Crazed Christian Crusader, he threw out the idea that using mercenary troops in foreign wars is unconstitutional.

It grabbed my attention, because it is a great example of how little some of these very earnest advocates on both the left and the right really understand what is in the Constitution and what certain passages of it actually mean. It seems as if they decide something is bad and then assume that anything which seems bad to them must inherently be unconstitutional. After all, if they’d written the constitution they wouldn’t have allowed for the hiring of mercenaries, because mercenaries are evil.

The thing is, they didn’t write the Constitution and apparently haven’t read it either. Statements like this display both an ignorance of the Constitution and a dismaying ignorance of American history and the role which mercenaries have played in it.

The ironic truth is that while the Constitution does not authorize the existence of a standing army and many of the founding fathers would have liked a stronger and clearer prohibition on any kind of standing army, the Constitution does explicitly authorize the hiring of mercenaries. What’s more, mercenaries have been a component of some of our most notable military operations throughout our history.

This is all about Article 1, Section 8 of the Constitution, where it clearly says that Congress can “raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years,” essentially forbidding the kind of long-term, established army we have had since the Civil War. It also authorizes Congress to “grant Letters of Marque and Reprisal,” which is 18th century terminology for hiring mercenaries, bounty hunters, privateers and assassins — essentially any kind of private contractor to exact revenge and attack the nation’s enemies for a reward or a stipend.

So the great institutional army which so many view as legitimate is actually kind of unconstitutional and those evil mercenaries who Scahill and his friends on the left so revile actually enjoy a unique position of Constitutional authority. The vision which the framers of that document actually had for our military was that it would consist of a militia which was never deployed for any long term and would only be called up for specific short-term uses in the direct defense of the nation, while military operations outside of our borders would largely be carried out on a small scale by hired mercenaries.

As one example of how this Constitutionally authorized system worked before it was pushed aside for expediency, consider the role which privateers have played in American military operations. Privateers are privately owned military ships commissioned to attack enemy shipping and in some cases even enemy cities on behalf of the government. Much of our very limited naval strength in the Revilution was composed of privateers. The most famous of them was John Paul Jones. We continued to use privateers into the early 19th century, including in our undeclared war with France and later in the War of 1812. When most of the nations of Europe signed the Declaration of Paris in 1856 outlawing Privateers the United States refused to sign, and as late as World War II the government commissioned the airship Resolute as a privateer operating in the air off the coast of California and used other private contractors like the Liberty Ships to support the military.

Mercenaries like Blackwater, or what they now call Private Military Companies, have a long history going back to the ancient world. Groups of soldiers for hire have played a role in almost every war. They fought for pay on both sides during the Revolution. President Jefferson hired Greek mercenaries to augment his small force of US Marines for his attack on Tripoli. They fought in the Napoleonic Wars and the War of 1812. The Swiss Guards who guard the Vatican and the Pope are essentially mercenaries. The use of mercenaries fell into disfavor in the West in the late 19th and 20th centuries, but they have continued to be used extensively in the third world. The United Nations and other groups have tried to prohibit the employment of mercenaries with very little success. The United States continues to use mercenaries in some situations and it is done under the authority of that same part of Article 1, Section 8 which authorizes privateers.

I’m not going to argue the advisability or the pros and cons of hiring mercenaries to fight your wars for you. It just seems bizarre that we have reached the point where even the most anti-war among us like Jeremy Scahill accept the existence of a standing army as routine and even desirable when compared to the hiring of professional mercenaries for a short term and limited engagement. The Founding Fathers thought a standing army would be an unacceptable threat to the Republic, but had no problem with the idea of some hired troops protecting our interests outside our borders. The Constitution reflects this, and while modern leftist sensibilities may find mercenaries unappealing and politically incorrect, that doesn’t make them unconstitutional.


About Dave 536 Articles
Dave Nalle has worked as a magazine editor, a freelance writer, a capitol hill staffer, a game designer and taught college history for many years. He now designs fonts for a living and lives with his family in a small town just outside Austin where he is ex-president of the local Lions Club. He is on the board of the Republican Liberty Caucus and Politics Editor of Blogcritics Magazine. You can find his writings about fonts, art and graphic design at The Scriptorium. He also runs a conspiracy debunking site at IdiotWars.com.


  1. First of all, Congress is authorized to grant Letters of Marque and Reprisal– Congress, not the President. This is where your argument breaks down, the C.I.A. serves the Executive Branch, at the point where mercenaries are engaging in covert ops they are participating in military operations by presidential fiat. This is unconstitutional because only Congress can declare, and fund, war. Only Congress can sanction private action against foreign entities, as you pointed out. Also, Letters of Marque and Reprisal are meant to give Congress the ability allow individual action against foreign entities only when that country refuses to mete out justice. It is not the blank check to mercenaries that you make it out to be, and defining it as “18th century terminology for hiring mercenaries, bounty hunters, privateers and assassins” is a misleading oversimplification, it’s more nuanced than that. These contracting companies get tax-payer money, they represent the U.S. overseas, and they participate in covert operations–All of which is illegal unless authorized by Congress. This also means that they are not subject to Congressional oversight or internationally defined codes of military conduct. Using them for C.I. A. activities is absolutely unconstitutional. Furthermore, their actions have political, legal, and diplomatic implications for the U.S. even though they are not required to conform to legislative and international mandates, so if they say, massacre a crowd of civilians in Nisour Square, there is no way to hold them accountable because no one to watch them or govern their behavior. What’s worse, their atrocities are associated with American foreign policy. While Scahill may be a “leftist” his argument is empirically true.

  2. I don’t believe I mentioned the President anywhere in this article. Congress authorized the military action in Iraq and Afghanistan, and it was under that authority that Blackwater was hired. Despite the incessant arguments against it, the SCOTUS ruled that the AUMF was a declaration of war and you just can’t get around that fact.


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