Private defense of space systems Letters of Marque and Reprisal

摘要

Space systems are at risk from many adversary attack modalities, to include those delivered through kinetic, non-kinetic, and cyber means. Protecting satellites from these attacks will require robust active defense capabilities. Nation States may lawfully respond to armed attacks with active defenses under the Law of Armed Conflict (LOAC). Since many space capabilities are delivered by private owner-operators, however, the question arises as to what role these operators may and should undertake to lawfully defend their spacecraft, ground stations, and links, or otherwise participate in efforts in support national and collective self-defense. Encouraging and licensing such owner-operators to perform active defense and counterstrikes may serve valuable public purposes. Thus, the idea of issuing Letters of Marque and Reprisal to owner-operators in order to respond to adversary space attacks is one substantive option the United States (U.S.) should consider. The U.S. Constitution specifically empowers the Congress to issue Letters in order to authorize private entities not in the armed forces to engage in hostile actions against enemies outside the U.S. and its territories. It is a historical practice. Indeed, "privateers" were regularly commissioned to attack enemy ships well before the 1800s. The idea of bringing private non-governmental resources into a space conflict could help the U.S. Government to extend its overstretched resources. Commercial owner-operators and the U.S. space industry already possess the lion's share of the technical expertise made available to U.S. national security operations. Commercial operators can be expected to suffer significant damage if any conflict moves into the space domain, and so would be motivated by economics to defend them, not just for patriotic reasons. Authorizing commercial operators to engage in space hostilities may provide an efficient and effective counter-punch to growing adversary counterspace capacities.