The Captures Clause

The Congress shall have Power To . . . make Rules concerning Captures on Land and Water. . . .

—John C. Yoo

Introduction

During armed conflicts, property seized from enemies is known as a prize of war. Under the Captures Clause, Congress has the power to make rules for the confiscation, disposition, and distribution of captured enemy property. The original understanding suggests that the clause covers the seizure of enemy shipping as prizes of war. However, the war on terrorism spurred debate over whether the concept of prizes extends to enemy prisoners. Three main arguments have developed over the reach of the Captures Clause: (1) that Congress’s powers under the clause do not apply to enemy prisoners, so the power over enemy prisoners rests with the President; (2) that the clause applies only to property, not persons, but Congress can invoke its authority over the armed forces to regulate the treatment of prisoners; and (3) that Congress can regulate prisoners under the Captures Clause as well as under the Offenses Against the Law of Nations and Declare War Clauses.

History Before 1787

Prizes of war in Britain were handled through a specialized Court of Admiralty system, which developed a sophisticated body of prize law that determined the legality of captures, ownership rights, and distribution of proceeds.¹ The High Court of Admiralty employed rigorous procedural requirements, including the examination of ship’s papers and crew depositions, to establish whether captures were lawful under prevailing laws of war and international custom.² This judicial oversight operated within the framework established by Parliament’s legislative authority over maritime prizes. The British Prize Acts of the eighteenth century referred to property that had been seized but not confirmed as a prize through the courts.³ These statutory frameworks created a structured legal pathway that transformed physical captures into legally recognized prizes. Parliament granted the Admiralty courts exclusive jurisdiction over this process to ensure uniformity in the application of prize law principles.⁴

Building on British admiralty practice, the Continental Congress established its own system of prize law during the Revolutionary War.⁵ For example, the Congress frequently issued letters of marque and reprisal exclusively to privateers “to make Captures of British Vessels and Cargoes” pursuant to rules established by Congress.⁶ Under these rules, captors could not claim lawful title to captured property until after a prize court had granted it.⁷ At the time, the term “captures” referred to property.⁸ Such property would include enemy ships or vessels aiding the enemy and their valuable goods. The captors would be entitled to at least partial title of the prize. Before 1780, capture cases were determined by state courts, generally by jury. The Continental Congress retained the power to review appeals.⁹ This arrangement, however, created tensions between the state and national governments. State courts often bristled at congressional oversight of their decisions.

In 1780, the Continental Congress created the Court of Appeals in Cases of Capture.¹⁰ The Articles of Confederation did not establish a national judiciary, but Article IX, Section 1 addressed the capture issue. Congress had the power “of establishing rules for deciding, in all cases, what captures on land or water shall be legal” and the power of “establishing courts” and “receiving and determining finally appeals in all cases of captures.” But there was an incompatibility: “no member of congress shall be appointed a judge of any of the said courts.” One such case was Miller v. The Ship Resolution (1781).¹¹ These courts would operate until the Constitution was ratified. In 1795, the U.S. Supreme Court observed that “[t]he existence of the Court of Appeals terminated with the old government” once the Constitution was ratified.¹²

The Constitutional Convention

The Virginia Plan, proposed by Edmund Randolph on May 29, provided an overview of the powers for the national government.¹³ Under the plan, inferior tribunals would hear cases about “all . . . captures from an enemy.”¹⁴ On June 12, the Convention voted to strike out that clause.¹⁵ The New Jersey Plan, introduced on June 15, also included a national judiciary that would hear “all cases of captures from an enemy.”¹⁶ Alexander Hamilton’s plan would have granted “original jurisdiction in all causes of capture” to the “Supreme Judicial authority.”¹⁷

A Committee of Detail draft grouped together Congress’s power “To declare the law of piracy, felonies and captures on the high seas, and captures on land.”¹⁸ The Committee of Detail’s report was delivered to the delegates on August 6.¹⁹ Its text included a standalone provision that was not coupled with any other powers: “To make rules concerning captures on land and water.”²⁰ This provision was referred to the Committee of Style.²¹ The Committee of Style’s report lumped together three separate powers: “To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.”²² That provision received no further edits.

There was no substantial discussion of the Captures Clause during the ratification process.

What Can Be Captured?

When the Constitution was ratified, it was well established that property could be captured as a prize. Brown v. United States (1814) held that the executive’s power to conduct war necessarily includes the power to seize persons and property on the battlefield.²³ Yet the Supreme Court has construed the Captures Clause to deny the executive constitutional power to seize enemy property outside of the battlefield.²⁴ Brown concluded that by virtue of the Captures Clause, the executive lacks inherent constitutional authority to confiscate property owned by subjects of enemy nations and must seek congressional authorization in order to do so.²⁵

Who Can Be Captured?

Does the Captures Clause apply to people? The original understanding of “captures” included only enemy property. The term could not include captured enemy soldiers, as persons can neither be “divided” nor “appropriated,” nor can they be treated as legally awarded prizes. This approach is bolstered by the fact that the “capture” was understood under international law to be “the act or practice of taking any thing; a prize.”²⁶

However, there may be some contrary authority with regard to piracy. Pirates were individuals who committed robbery or other violent acts on the high seas without the authorization of a nation-state.²⁷ Piracy was “robbery upon the sea.”²⁸ Historically, the capture of pirates by public or private ships of any nation was considered lawful. The Supreme Court, for example, found that “pirates may be lawfully captured on the ocean by the public or private ships of any nation.”²⁹ Pirates were considered hostes humani generis, or “enemies of the human race.”³⁰ As such, they were beyond legal protection because piracy was considered a crime against all nations. The treatment of pirates under the Law of Nations was different from the treatment of non-pirates. Vattel, for example, distinguished between two categories: formal warfare by non-pirates for political purposes that was sanctioned by recognized authorities and unlawful war by pirates solely for plunder. Vattel wrote that “such in general are the depredations of pirates.”³¹

The Supreme Court followed this principle in The Marinna Flora (1825).³² Justice Joseph Story defined letters of marque to contain “an authority to seize the bodies or goods of the subjects of the offending state” until the injury is made whole again.³³ These sources do not textually include the treatment of people as prizes, but they do suggest that the Captures Clause at least authorizes the seizure of people incident to the physical capture of goods.

The Captures Clause and Separation of Powers

The original understanding of the clause appears to be that Congress alone has the power to establish rules governing the circumstances of the capture.³⁴ The Supreme Court has invoked the Captures Clause to demonstrate the balance of powers between Congress and the President. For example, Hamdan v. Rumsfeld (2006) observed that the Captures Clause was a congressional power distinct from the President’s powers in executing war, but it did not clarify the powers included in the Captures Clause.³⁵ Two years earlier, Hamdi v. Rumsfeld (2004) found that the detention of enemy combatants for the duration of the conflict was “so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.”³⁶ The Court apparently saw no need to clarify whether Congress even needed to authorize the President to execute his war powers in areas “so fundamental and accepted.”

The lower courts have also addressed this issue. In Kiyemba v. Obama (2009), then-Judge Brett Kavanaugh suggested that the Captures Clause was evidence that the “President does not possess exclusive, preclusive authority over the transfer of detainees.”³⁷ Kavanaugh observed that Congress may place judicially enforceable limits on the transfer of prisoners but also can choose not to do so for policy reasons. The “negotiated exchange of prisoners was ‘a wartime practice well known to the Framers,’ and ‘[j]udicial intervention might have complicated’ those negotiations.”³⁸

Open Questions

• Does the Captures Clause authorize Congress to regulate captures by private parties only and not by the armed forces of the United States, or does the practice of the Continental Congress support a power of the Congress to control captures by both private and public vessels?³⁹ If the answer to the latter question is yes, would Congress have some constitutional authority to prescribe rules for at least some elements of military conflict?
• Should the Captures Clause play a role with new forms of warfare that mix private and public activity and resources? For example, would intentional damage to underwater intercontinental fiber optic cables constitute piracy? Would seizure of electronic assets in the cloud be a “[c]apture[] on Land and Water”?

1. Henry J. Bourguignon, The First Federal Court: The Federal Appellate Prize Court of the American Revolution, 1775–1787, at 12–16 (1977). ↩︎
2. Carl E. Swanson, Predators and Prizes: American Privateering and Imperial Warfare, 1739–1748, at 27–29 (1991). ↩︎
3. Matthew P. Harrington, The Legacy of the Colonial Vice-Admiralty Courts, 26 J. Mar. L. & Com. 581, 584–85 (1995). ↩︎
4. William R. Casto, The Origins of Federal Admiralty Jurisdiction in an Age of Privateers, Smugglers, and Pirates, 37 Am. J. Legal Hist. 117, 124 (1993). ↩︎
5. Bourguignon, supra at 89. ↩︎
6. Cont. Cong., Instructions to the Commanders of Private Ships or Vessels of War, § 2 (Apr. 3, 1776). ↩︎
7. Id., § 5. ↩︎
8. Brown v. United States, 12 U.S. 110, 122–23 (1814). ↩︎
9. 3 J. Cont. Cong. 374 (Nov. 25, 1775). ↩︎
10. 16 J. Cont. Cong. 61–64 (Jan. 15, 1780). ↩︎
11. 2 U.S. (2 Dall.) 1 (Fed. Ct. App. 1781). ↩︎
12. Penhallow v. Doane’s Administrators, 3 U.S. 54, 86 (1795). ↩︎
13. 1 Farrand’s 20. ↩︎
14. Id. at 22. ↩︎
15. Id. at 211, 220. ↩︎
16. Id. at 244. ↩︎
17. Id. at 282, 292. ↩︎
18. 2 Farrand’s 143. ↩︎
19. Id. at 177. ↩︎
20. Id. at 182. ↩︎
21. Id. at 565, 570. ↩︎
22. Id. at 590, 595. ↩︎
23. Brown v. United States, 12 U.S. 110 (1814). ↩︎
24. Id. at 126. ↩︎
25. Id. at 127–28. ↩︎
26. Thomas Sheridan, A Complete Dictionary of the English Language (1790). ↩︎
27. United States v. Smith, 18 U.S. 153, 162 (1820). ↩︎
28. Id. ↩︎
29. The Marianna Flora, 24 U.S. 1, 2 (1825). ↩︎
30. United States v. Windsor, 570 U.S. 744, 798 (Scalia, J., dissenting). ↩︎
31. E. Vattel, The Law of Nations; or Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns 320 (6th Am. ed. 1844). ↩︎
32. 24 U.S. 1 (1825). ↩︎
33. 3 Story’s Commentaries § 1171 (emphasis added). ↩︎
34. Art. I, § 8, cl. 11; Michael D. Ramsey, The Constitution’s Text in Foreign Affairs 224–29 (2007). ↩︎
35. Hamdan v. Rumsfeld, 548 U.S. 557, 591 (2006). ↩︎
36. Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004). ↩︎
37. Kiyemba v. Obama, 561 F.3d 509, 518 (D.C. Cir. 2009) (Kavanaugh, J., concurring). ↩︎
38. Id. at 520 (quoting Boumediene v. Bush, 553 U.S. 723, 748 (2008)). ↩︎
39. Ingrid Wuerth, The Captures Clause, 76 U. Chi L. Rev. 1683, 1735 (2009). ↩︎