In the legal and political landscape of January 2026, "Letters of Marque and Reprisal" have moved from historical trivia to a very real—and controversial—legislative reality.
To understand why this is a "live" issue right now, you have to look at how the U.S. is attempting to use 18th-century constitutional powers to solve 21st-century trade and security problems.
1. The Current Legislation (Jan 2026)
As of this week, the Cartel Marque and Reprisal Authorization Act (introduced in late 2025) is currently being debated in the 119th Congress.
The Purpose: This bill would authorize the President to issue "Letters of Marque" to private American entities (security firms or specialized maritime groups).
The Target: Specifically, drug cartels and transnational criminal organizations.
The Power: It would allow these "modern privateers" to seize cartel-linked ships, aircraft, and assets in international waters or foreign lands, then keep a portion of the "prize" as profit—exactly like the sea captains of the 1700s.
2. Why "Marque and Reprisal" is Different from Piracy
Technically, "piracy" is unauthorized robbery at sea. A "Letter of Marque" is a government license that turns that same act into a legal state function.
Legal Protection: Under Article I, Section 8 of the U.S. Constitution, Congress has the power to grant these letters. In theory, it gives the holder the same legal status as a soldier rather than a criminal.
Financial Independence: The government doesn't pay these privateers; they are self-funded. Their "pay" is the property they capture (the "prizes").
3. The 2026 "Cyber" Twist
One of the most radical developments this month is the Cybercrime Marque and Reprisal Authorization Act.
Because the U.S. is facing massive trade and infrastructure interference from state-linked "scam farms" and hackers in places like Myanmar and North Korea, some lawmakers want to issue digital Letters of Marque.
This would allow private cybersecurity firms to "hack back," seizing digital assets and crypto-wallets from foreign criminals to return to American victims, keeping a "recovery fee" for themselves.
The Massive Risks (The "Piracy" Counter-Argument)
While the U.S. views this as a "cost-effective" way to fight back without starting a full-scale war, the international community sees it differently:
International Law: The Paris Declaration of 1856 abolished privateering. Although the U.S. never signed it, it is considered "customary international law." If the U.S. starts issuing these letters, China, Russia, and the EU would likely treat these "privateers" as pirates, meaning they could be executed or imprisoned upon capture without the protection of the Geneva Convention.
Escalation: If a private American firm seizes a ship that China claims is "commercial" but the U.S. claims is "cartel-linked," it could trigger a direct military clash between navies.
The "Shadow Fleet" Problem: The U.S. is currently using its Navy to seize "shadow fleet" tankers carrying sanctioned oil. If they hand this task to privateers, critics argue the oceans will become a "lawless Wild West" where any ship is a target if a privateer can find a reason to label it "criminal."
The "Anti-Foreign Sanctions Law" Trap
China’s Anti-Foreign Sanctions Law (AFSL), particularly with the major enforcement updates released in 2025 and active as of January 2026, is the primary legal "shield and sword" Beijing uses to fight the U.S. trade war.
If the U.S. issues "Letters of Marque" or continues seizing ships, China uses this law to turn those actions into a legal liability for U.S. companies. Here is how it works in the current 2026 landscape:
1. The "Dual-Compliance" Trap
The AFSL creates a "damned if you do, damned if you don't" scenario for multinational companies.
The Conflict: If a U.S. company (like a bank or shipping firm) complies with U.S. sanctions to avoid a fine in Washington, they are technically violating the AFSL in Beijing.
The Consequence: Under the law, Chinese citizens or companies can sue that U.S. firm in Chinese courts for "discriminatory restrictive measures."
2. The "Private Enforcement" Surge (New for 2026)
One of the most significant changes entering 2026 is the shift toward private lawsuits.
In 2025, China's Supreme People's Court clarified that private individuals and law firms are "encouraged" to bring cases against companies that assist in foreign sanctions.
The Result: We are seeing a wave of litigation where Chinese suppliers sue U.S. buyers for "unlawful contract termination" if the U.S. buyer stopped doing business due to sanctions.
3. Key Countermeasures
When a company or individual is placed on the Anti-Sanctions List (the mirror image of the U.S. OFAC list), China can immediately:
Seize and Freeze: Block all movable and immovable property (factories, bank accounts, inventory) within China.
Transaction Bans: Prohibit any Chinese entity from doing business with the listed party.
Visa Denial: Ban the individual and their immediate family from entering mainland China, Hong Kong, or Macao.
4. How it hits "Letters of Marque"
If the U.S. passes the Cartel Marque and Reprisal Act and a private U.S. security firm seizes a vessel that China considers "commercial," the AFSL allows China to:
Designate the firm as a "criminal organization" under the AFSL.
Seize the assets of any parent company or investor in that firm that has a presence in China.
Criminalize the act: Under the latest 2025 regulations, assisting in these "maritime interdictions" can be treated as a criminal offense under China's National Security Law.
Summary: The 2026 Trade "Deadlock"
U.S. Action China's AFSL Response