“Should we just have done nothing?!” The former question is a common incensed objection whenever someone dares to question the wisdom, appropriateness, or success of the War on Terror. Part of this is because many hold to an unrealistic and idealized “War on Terror”—which was just and, despite mistakes, imperfectly accomplished most or all its stated objectives—instead of the historical War on Terror. Even recognizing significant missteps and disasters of the War on Terror, many defenders would have us believe that—as bad as it was—there was no viable alternative.
(Let us also note that Obama, Trump, Biden, and Trump again all enjoyed electoral success while campaigning, to varying degrees, against the War on Terror, its consequences, or America’s prolonged foreign interventions—even as their subsequent policies often contradicted their campaign rhetoric. Yet, despite repeated promises to learn the lessons of these wars, interventionist policies persisted, while some political leaders and commentators even sought to rehabilitate the War on Terror’s reputation or even recast renewed military intervention as entirely consistent with the promises on which they had campaigned.)
All that reviewed, what many do not know or remember was that, 25 years ago—in the fall and winter 2001—Ron Paul proposed an alternative response to 9/11 that deserves serious recognition.
While a staunch non-interventionist in foreign policy, Ron Paul did not suggest that the United States do nothing in response to 9/11. Even as Paul recognized the relevant foreign policy and geopolitical history that contributed to the attacks, he proposed a targeted response against those responsible rather than an expansive, indefinite, global War on Terror. Specifically, Paul introduced legislation authorizing Congress to exercise its little-known power under Article I, Section 8, Clause 11 of the Constitution to “grant Letters of Marque and Reprisal.” This would have authorized the president to commission appropriate parties to capture Osama bin Laden, members of al Qaeda, and others responsible for the September 11 attacks, as well as seize their property.
Paul’s proposal also authorized the president to use a portion of the $40 billion already appropriated by Congress in response to the attacks to establish a bounty for bin Laden’s capture. By placing the issuance of letters of marque and reprisal under presidential authority, the legislation sought to coordinate these efforts with the administration’s broader pursuit of the perpetrators.
Rather than pursuing an open-ended military campaign against terrorism around the world—a campaign that would eventually involve destabilizing governments and countries that had nothing to do with 9/11, and even supporting armed groups with ties to al Qaeda—Paul’s approach emphasized identifying and apprehending those directly responsible for 9/11 while avoiding the widespread destruction, civilian casualties, and additional hostility that a broader war in the Middle East risked producing.
To these ends, Ron Paul proposed two bills on October 10, 2001. The first was H.R. 3074 — Air Piracy Reprisal and Capture Act of 2001 which proposed expanding federal piracy law to cover aircraft hijacking and authorizing letters of marque and reprisal against air piracy. The second was H.R. 3076 — September 11 Marque and Reprisal Act of 2001 which proposed authorizing the president to issue letters of marque and reprisal against Osama bin Laden and others responsible for September 11.
Ron Paul’s Alternative in His Words
While we always have to be careful with speculative history, it is also important to avoid status quo bias and fall into historical determinism. As we have a quarter century of data on how the War on Terror unfolded, Ron Paul’s 2001 alternative not only deserves retrospective examination but also has aged well in light of history.
On September 14, 2001—mere days after 9/11—Ron Paul argued,
The best tool the framers of the Constitution provided under these circumstances was the power of Congress to grant letters of mark and reprisal in order to narrow the retaliation to only the guilty parties. The complexity of the issue, the vagueness of the enemy, and the political pressure to respond immediately limits our choices. The proposed resolution is the only option we are offered, and doing nothing is unthinkable. (emphasis added)
About a month later, on October 10, 2001, Paul similarly stated, in a lengthier statement,
Mr. Speaker, I rise to introduce the Air Piracy Reprisal and Capture Act of 2001 and the September 11 Marque and Reprisal Act of 2001. The Air Piracy Reprisal and Capture Act of 2001 updates the federal definition of ‘‘piracy’’ to include acts committed in the skies. The September 11 Marque and Reprisal Act of 2001 provides Congressional authorization for the President to issue letters of marque and reprisal to appropriate parties to seize the person and property of Osama bin Laden and any other individual responsible for the terrorist attacks of September 11. Authority to grant letters of marque and reprisal are provided for in the Constitution as a means of allowing Congress to deal with aggressive actions where a formal declaration of war against a foreign power is problematic, Originally intended to deal with piracy, letters of marque and reprisal represent an appropriate response to the piracy of the twentieth century: hijacking terrorism.
All of America stood horrified at the brutal attacks of September 11 and all of us stand united in our determination to exact just retribution on the perpetrators of this evil deed. This is why I supported giving the President broad authority to use military power to respond to these attacks. When Congress authorized the use of force to respond to the attacks of September 11 we recognized these attacks were not merely criminal acts but an ‘‘unusual and extraordinary threat to the national security.”
Congress must use every means available to fight the terrorists behind this attack if we are to fulfil our constitutional obligations to provide for the common defense of our sovereign nation. Issuance of letters of marque and reprisal are a valuable tool in the struggle to exact just retribution on the perpetrators of the attacks on the World Trade Center and the Pentagon. In fact, they may be among the most effective response available to Congress.
Since the bombing there has been much discussion of how to respond to warlike acts carried out by private parties. The drafters of the Constitution also had to wrestle with the problem of how to respond to sporadic attacks on American soil and citizens organized by groups not formally affiliated with a government. In order to deal with this situation, the Constitution authorized Congress to issue letters of marque and reprisal. In the early days of the Republic, marque and reprisal were usually used against pirates who, while they may have enjoyed the protection and partnership of governments, where [sic] not official representatives of a government.
He continued,
Like the pirates who once terrorized the high seas, terrorists today are also difficult to punish using military means. While bombs and missiles may be sufficient to knock out the military capability and the economic and technological infrastructure of an enemy nation that harbors those who committed the September 11 attacks, traditional military force may not be suitable to destroy the lawless terrorists who are operating in the nations targeted for military force. Instead, those terrorists may simply move to another base before our troops can locate them. It is for these reasons that I believe that, were the drafters of the Constitution with us today, they would counsel in favor of issuing letters of marque and reprisal against the terrorists responsible for this outrageous act.
Specifically, my legislation authorizes the President to issue letters of marque and reprisal to all appropriate parties to capture Osama bin Laden and other members of al Qaeda or any other persons involved in the September 11 terrorist attacks. The President is also authorized to use part of the $40 billion appropriated by this Congress to respond to the attack, to establish a bounty for the capture of Osama bin Laden. My legislation singles out Osama bin Laden and al Qaeda because the information available to Congress and the American people indicates bin Laden and his organization were responsible for this action. By vesting authority in the President to issue the letters, my legislation ensures that letters of marque and reprisal can be coordinated with the administration’s overall strategy to bring the perpetrators of this outrageous act to justice.
Letters of marque and reprisal resolve one of the most vexing problems facing the country: how do we obtain retribution against the perpetrators of the attacks without inflicting massive damage on the Middle East which could drive moderate Arabs into an allegiance with bin Laden and other terrorists. This is because using letters of marque and reprisal shows the people of the region that we are serious when we say our quarrel is not with them but with Osama bin Laden and all others who would dare commit terrorist acts against the United States.
On October 25, 2001, after the bombing of Afghanistan had already begun, Ron Paul reiterated,
It is certainly disappointing that our congressional leaders and administration have not considered using letters of marque and reprisal as an additional tool to root out those who participated in the 9–11 attacks. The difficulty in finding bin Laden and his supporters make marque and reprisal quite an appropriate option in this effort.
We already hear of plans to install and guarantee the next government of Afghanistan. Getting bin Laden and his gang is one thing, nation-building is quite another. . . .
As we bomb Afghanistan, we continue to send foreign aid to feed the people suffering from the war. I strongly doubt if our food will get them to love us or even be our friends. There is no evidence that the starving receive the food. And too often it is revealed that it ends up in the hands of the military forces we are fighting. While we bomb Afghanistan and feed the victims, we lay plans to install the next government and pay for rebuilding the country. Quite possibly, the new faction we support will be no more trustworthy than the Taliban, to which we sent plenty of aid and weapons in the 1980s. That intervention in Afghanistan did not do much to win reliable friends in the region. . . .
I happen to believe that winning this battle against the current crop of terrorists is quite achievable in a relatively short period of time. But winning the war over the long term is a much different situation. This cannot be achieved without a better understanding of the enemy and the geopolitics that drive this war. Even if relative peace is achieved with a battle victory over Osama bin Laden and his followers, other terrorists will appear from all corners of the world for an indefinite period of time if we do not understand the issues.
Among this prescient wisdom, Ron Paul also noted, “Our widespread efforts of peacekeeping and nation-building will only contribute to the resentment that drives the fanatics.” In the midst of his 2007–2008 educational campaign for the Republican nomination, Ron Paul wrote or compiled The Revolution: A Manifesto. In it he wrote (pp. 15, 17),
What the Founding Fathers have to teach us about foreign policy became all the more important, and yet all the more ignored, in the wake of the horrific attacks of September 11, 2001.
In the weeks that followed that fateful day, most Americans’ focus was on identifying the sponsors of the attacks and punishing them. That was sensible enough. I myself voted to track down al Qaeda in Afghanistan. . . .
The cost in terms of liberties lost and the unnecessary exposure to terrorism are difficult to determine, but in time it will become apparent to all of us that foreign interventionism is of no benefit to American citizens, but instead is a threat to our liberties.
Ironically, Thomas Jefferson’s war against the Barbary pirates is frequently invoked to justify expansive presidential war powers and portrayed as an early American war against Islamic terrorism. Yet Ron Paul’s proposed response to September 11 bore a much closer resemblance to Jefferson’s limited military campaign than the global War on Terror that followed. Rather than authorizing an indefinite war against terrorism, Paul’s proposal would have employed the Constitution’s provision for letters of marque and reprisal to pursue the specific perpetrators of the attacks. Indeed, Congress had similarly authorized privately-armed vessels to participate in hostilities against Tripoli in 1802. The historical precedent so often invoked to justify expansive military intervention thus provides an instructive comparison with the alternative Paul proposed in 2001.
Bin Laden’s Escape and the 25-Year War on Terror
The Afghanistan campaign (that ultimately lasted twenty years) was only part of the global War on Terror, but December 2001 in Afghanistan serves as a pivotal decision point. During this period—between September and December of 2001—there was the growing distraction of ready-made plans for regime-change wars with several other countries (Iran, Syria, Lebanon, Libya, Somalia, Sudan, and Iran) that had nothing to do with 9/11.
When the National Security Council met at the White House on September 25, 2001, before the bombing of Afghanistan began, President Bush was recorded as saying (p. 133), “We can’t define success or failure in terms of capturing UBL.” Rumsfeld agreed and suggested (p. 136), “Look, as part of the war on terrorism, should we be getting something going in another area, other than Afghanistan, so that success or failure and progress isn’t measured just by Afghanistan?” Bob Woodward records (p. 47),
Bush again said his instinct was to start with bin Laden. If they could strike a blow against al Qaeda, everything that followed would be made easier. But Rumsfeld worried that a coalition built around the goal of taking out al Qaeda would fall apart once they succeeded in that mission, making it more difficult to continue the war on terrorism elsewhere. (emphasis added)
The policy focus of hiring warlords to fight the Taliban and pursue regime-change and nation-building, plus the failure to provide requested support, narrowly allowed bin Laden to escape into Pakistan—with the help of certain US-paid warlords—in December 2001. In other words, Osama bin Laden presumably could have been captured or killed by Christmas of 2001 if not for these distractions and if Ron Paul’s strategy or something similar had been pursued. While that may have not been the end of the matter, there may never have been a War on Terror, along with all its terrible costs.
A November 2009 majority staff report of the US Senate Foreign Relations Committee, Tora Bora Revisited: How We Failed to Get Bin Laden and Why It Matters Today, concluded that bin Laden was present in the Tora Bora region in December 2001, American forces had an opportunity to capture or kill him, the failure to block escape routes toward Pakistan contributed to his escape, and a different deployment of American troops and special operations forces might have prevented it.
What Was and What Could Have Been
Instead of taking responsibility for the blatant national security failures—for which taxpayers are charged billions of dollars for “national security”—and being upfront with the American people about the known realities of the foreign policy blowback, US political elites largely blamed Americans for being too free. Their answer was to further restrict liberty and increase inflation and debt at home and pursue more foreign policy intervention abroad, even if it had nothing to do with 9/11.
Instead of focusing on capturing and/or killing bin Laden and those responsible, which might have been possible by Christmas of 2001, both the Bush administration and subsequent administrations chose to focus on a costly, decades-long so-called War on Terror. (It is also important to remember that one of the ongoing strategies in this War on Terror in fact involved supporting the funding and arming of Islamic radicals, related to al Qaeda and affiliates).
While we cannot guarantee the success of Ron Paul’s suggested alternative, we know a good deal of the costs and consequences of the War on Terror. A fair evaluation is not to compare Ron Paul’s strategy against absolute, non-existent perfection—the Nirvana fallacy—or to assume the alternative to the War on Terror was nothing, but to compare his strategy against what actually happened. More importantly, we should inform and remind people that an untried alternative did exist and was rejected in favor of the War on Terror.
