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VALERY HACHE

At about a quarter past 10 on Tuesday morning, a private jet apparently belonging to a man named Roman Abramovich took off from an airport near Moscow. I know this because a teenager named Jack Sweeney created <a href="https://twitter.com/RUOligarchJets/status/1498678608524677128" target=_blank>an automated tool</a> tracking the departures and arrivals of a very select group of aircraft: those owned by oligarchs close to Russian President Vladimir Putin.

Those jets and the yachts owned by the same group have attracted an enormous amount of attention in the week since Russia invaded Ukraine. In large part, it’s because those vehicles in many cases represent a very tangible manifestation of the corruption at the heart of Putin’s regime. International sanctions have hobbled the Russian economy, but the political effect is muted if, at the same time, a billionaire empowered by Putin is docking his massive ship in Capri. Hence Sweeney’s tool. It’s an attempt to shine light on how the unofficial economy of Russia operates.

But what if it were something else? What if it were also a way for you to get yourself a new Gulfstream?

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Buried in Article I, Section 8 of the U.S. Constitution is a federal power that will probably be unfamiliar to a layperson. Among the powers granted Congress, it reads, is that to “grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” So what does that mean? It means the federal government is authorized by the Constitution to issue documents (letters of marque) that empower private individuals to legally seize foreign vessels.

The practice of privateering, as it’s known, is largely archaic, having been banned by treaty in most countries in the 19th century. But at the time, the United States declined to sign on, <a href="https://www.usni.org/magazines/proceedings/2020/april/us-privateering-legal" target="_blank">worried</a> that doing so would cut off one way in which its naval inferiority could be offset. Were there a war between the United States and a foreign power with a substantial fleet, we could make up some of the difference with the enemy by issuing letters of marque that provided bounties for those willing to engage and destroy foreign ships. In fact, this was a significant factor in the Revolutionary War, during which Britain lost <a href="https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1320&amp;context=ilj" target="_blank">more than 550 ships</a> to American privateers.

Over the past few decades, the idea of issuing letters of marque has been resuscitated on occasion, including by former Texas representative Ron Paul (R). After the 2001 terrorist attacks in New York and Washington, Paul <a href="https://avalon.law.yale.edu/sept11/speech_ron_paul_1010.asp" target=_blank>proposed legislation</a> that would allow privateers to “seize the person and property of Osama bin Laden and any other individual responsible for the terrorist attacks of Sept. 11.” He later <a href="https://www.politico.com/story/2009/04/ron-pauls-plan-to-fend-off-pirates-021245" target=_blank>floated</a> issuing letters of marque to target pirates operating off the coast of Somalia, more in keeping with the tool’s history of combating piracy.

On Monday, Rep. Lance Gooden (R-Tex.) introduced the idea once again in the context of the yachts and jets owned by those oligarchs. In broad strokes, the theory is that the government would establish a system allowing private individuals to seize the vessels and, eventually, make them their own. So instead of that Ukrainian mechanic <a href="https://www.washingtonpost.com/world/2022/02/28/russian-yacht-sinking-ukraine/" target="_blank">sinking his Russian boss’s yacht</a>, he could theoretically have gotten some friends together, sailed it away from port and become its new owner.

You can see how there might be some legal questions here. In an interview with The Washington Post conducted over email, Gooden clarified some of his thinking — admitting that some questions were yet to be answered.

“Russian yachts are moving quickly toward safe havens where they will be out of our reach,” Gooden said. “The United States and our allies must act quickly before it is too late, and we must use every tool available to ensure the enablers of Putin’s disgusting invasion are held accountable.” One advantage of the letters of marque, he noted, was that it posed less of a threat of amplifying tensions than if state resources were used to do so. It’s not the U.S. military capturing a plane owned by an ally of Putin; it’s a guy who was told by the government that if he seized the jet, he could keep it.

“I think there are legal questions about transfer of ownership and compensation that can be addressed by the executive branch and the courts later,” Gooden admitted. “The primary goal now should be the seizure of these vessels and finding creative ways to do so without escalating the current conflict.”

“There are private security companies with a global presence that could capitalize on these letters of marque. There are private American citizens who have volunteered to fight alongside the Ukrainians,” he continued, “and I guarantee there are more here at home and abroad who would welcome the opportunity to help seize these assets.”

Of course, this also relies an awful lot on Putin appreciating the above distinction. Given his recent behavior, one might assume he’d be disinclined to respect a legal distinction between the U.S. government empowering people to seize his friends’ planes and the government seizing those planes directly.

When letters of marque have been issued by the U.S. government in the past (the <a href="https://www.politico.com/story/2009/04/ron-pauls-plan-to-fend-off-pirates-021245" target=_blank>last known occasion</a> having been the <a href="https://text-message.blogs.archives.gov/2013/06/03/the-war-of-1812-privateers-plunder-profiteering/" target=_blank>War of 1812</a>), they have generally required that privateers post bond to ensure compliance with applicable international laws. Gooden clarified that his process, if enacted, would exclude the government from liability for, say, deadly shootouts or violations of international borders. Another detail to be worked out.

It’s extremely unlikely that Congress will enact this idea, of course, given both the questions and the downside risk (namely: stoking nuclear war). But, hey, these are unprecedented times. So you might as well keep an eye on Sweeney’s oligarch tracker. Next thing you know, you could be the proud owner of a very expensive jet.

The Aftermath: The Last Days of the Baby Boom and the Future of Power in America

Ohio State University

Philip Bump is a Post columnist based in New York. He writes the newsletter <a href="https://wapo.st/3m3QTiy">How To Read This Chart</a> and is the author of <a href="https://www.penguinrandomhouse.com/books/696653/the-aftermath-by-philip-bump/">The Aftermath: The Last Days of the Baby Boom and the Future of Power in America</a>.

Philip Bump

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