NATO Shipping Update April 8, 2009

I understand that piracy is not a serious strategic threat to the United States. I also observe the tactics of Somali pirates and observe a 21st century commerce raiding model that should have naval leaders globally very concerned. Something does not have to be a strategic threat to represent a very serious issue the Navy needs to be seriously engaged in.

Just in case someone might be wondering to what degree piracy should be a priority for the United States, and for what purpose we might have a Navy at all, a brief review of the United States Constitution may apply.

Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Emphasis mine. The mandate to take piracy seriously is not political, it is Constitutional. The Constitution makes clear that our political leaders may or may not raise an Army, but it is a constitutional requirement for Congress to maintain a Navy. The Constitution of the United States was not written that way by accident, Thomas Jefferson was one of several founding fathers who insured the language was specific.

As of 2006, the United States only had 347 US flagged merchant vessels. The probability that there were more than five US flagged merchant vessels within 500 miles of Somalia is very low. How exactly is it possible that one of our, potentially five, US flagged merchant vessels was hijacked by pirates while our Navy, the largest in the world, is not only aware of the piracy problem but with the establishment of Combined Task Force 151, is specifically organized to address this problem?

Should we review the policy regarding Somali piracy to insure our efforts are in line with our national priorities? The priorities for CTF-151 may be in line with policy, but I do wonder where protecting US flagged ships numbers on the list of CTF-151 priorities. The evidence would suggest that role is not #1 on that list, and probably not #2 or #3 either.

If we add up the ships that make up our Navy, TRANSCOM, MSC, and large Coast Guard vessels, we have way more US flagged ships operating for the purposes of war than we have US flagged merchant vessels operating for the purposes of economy, and still one of US flagged merchant vessels is hijacked in the most troubled waters in the world?

It doesn’t sound any better when you consider the same ship hijacked on Tuesday was attacked by pirates on Monday as well.

The Constitutional requirement to maintain the US Navy is rooted specifically to the issue of piracy at sea, but I don’t see much evidence the Navy is taking the piracy issue all that seriously. That could very easily be a reflection of the Administration’s policy, so it is important to observe how the Obama administration reacts.

All I can say is, at least the Navy isn’t out telling merchant mariners to arm themselves and take care of the problem themselves anymore. In the fight against Somali pirates, that literally is the only sign of progress.

Posted by galrahn in Maritime Security, Piracy

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  • lesser ajax

    How do you get from “Congress shall have the Power . . . to provide and maintain a Navy” to the idea that Congress must provide and maintain a Navy? I don’t see any language that requires that Congress exercise all of its power all of the time.

    Indeed, isn’t it true that, from 1789 (1st Congress, which presumably had the best grasp of the original understanding of the meaning of the Constitution) to 1794, Congress declined to provide and maintain a Navy? Kind of pokes a hole in your theory…

  • Byron

    Ditch theory and apply common sense. We are and have always been aware of the threat posed to us by power projected and forced upon the seven seas. Creating, funding, and maintaining a strong Navy is the largest wolf in front of the door.

  • lesser ajax

    Perhaps you are correct, but that doesn’t excuse statements like “[I]t is a constitutional requirement for Congress to maintain a Navy.” It’s not.

  • lesser ajax,

    Your criticism is fair and accurate. I think my poor choice of wording not only distracted from the point I was trying to make, it changed it, and rendered the point, pointless.

  • UltimaRatioReg

    But isn’t the Federal Government also tasked with the responsibility to …”establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty for ourselves and our posterity…”?

    Congress is OBLIGED to use its power to do those things when the requirement arises, as in 1794.

  • lesser ajax

    I think your overall point (that countering piracy was of central concern to the framers at the time of the founding and so remains an appropriate objective today) is a good one.

    1. Citing a preamble for legal effect is a questionable tactic.
    2. Those are the reasons the Constitution was drafted, but I’m not sure Congress is obligated to effectuate those purposes through legislation. I just don’t see any evidence that the preamble is intended to restrict Article I’s grant of discretionary power. Perhaps the founders intended that the very structure of the federal government would achieve those goals rather than any particular action by any particular branch.
    3. Even if Congress is obligated to use its power to advance these objectives “when the requirement arises”, I suppose it’s up to Congress alone in its unreviewable judgment to determine when the requirement has arisen. Not much of a check on Congressional apathy…

  • UltimaRatioReg

    “Citing a preamble for legal effect is a questionable tactic”

    That is a highly debatable statement.

    The preamble has often been cited as the framework for the existence of a Federal government under the Constitution (as opposed to the articles it replaced) throughout the document’s history. e.g. the difference between “promoting” and providing the general welfare was used often in the 1938 challenges to FDR’s New Deal, “establish justice” meaning a federal justice system which all states must be consistent with, “common defense” referring to a national army instead of state militias, commanded by Federal officers and controlled by Federal institutions.

    But I would like to paint the phrase “Congressional Apathy” on a billboard. 🙂

  • lesser ajax


    A little dicta to start your day:

    “But where the text of a clause itself indicates that it does not have operative effect, such as ‘whereas’ clauses in federal legislation or the Constitution’s preamble, a court has no license to make it do what it was not designed to do.” District of Columbia v. Heller, 128 S.Ct. 2783, 2789 n.3 (2008).

  • UltimaRatioReg

    I think the point made by Galrahn is that Article I, Section 8 outlines that providing and maintaining a Navy is precisely a power given to Congress.

    The Judiciary and Executive don’t provide and maintain a Navy, Congress does. And when there is a requirement for providing “for the common defense” at sea, it is, de facto, Congress’s responsibility to do so.

  • UltimaRatioReg

    But ajax, you made me smile with DC v Heller.

    The basic premise should be shouted from the mountaintops.