Onetime supporter of Guantánamo's military court now says it was 'doomed'
In a major reversal, a former top Bush administration official who once supported the government's decision to prosecute terrorism suspects at the U.S. military base in Guantánamo Bay, Cuba, is now calling that effort "doomed from the start" and urging President Biden to settle the 9/11 case rather than pursue a death-penalty trial.
During an interview with NPR's Sacha Pfeiffer, former U.S. Solicitor General Ted Olson said Guantánamo's war court is "clearly not working" and that brokering plea agreements with the 9/11 defendants, including Khalid Sheikh Mohammed, is "the only practical resolution" to the case, which has still not gone to trial more than two decades after the Sept. 11 attacks.
"It's an open sore that needs to be resolved," said Olson, whose wife Barbara died in one of the hijacked planes. "It can't go on forever."
"If these individuals are willing to plead guilty to criminal offenses against the laws of the United States, and accept a sentence of life imprisonment without possibility of parole ... then we get to the end of this," he said. "And hopefully that will bring about the conclusion of this long, unending chapter."
Olson's comments are a significant about-face. As solicitor general from 2001-2004, he helped defend President George W. Bush's policy of holding terrorism suspects indefinitely at Guantánamo and denying them basic legal rights. But the military court is widely viewed as irreparably dysfunctional, and since its inception the 9/11 case has been mired in delays, inefficiencies and setbacks, including a judge who quit after two weeks on the job.
In recognition of these problems, settlement negotiations in the 9/11 case began in March 2022. Yet a year later, those talks are in limbo while Guantánamo lawyers wait for the Biden administration to address several key issues, such as what health care the prisoners would receive for injuries from torture and where they would serve their sentences.
A law passed by Congress in 2015 prevents Guantánamo inmates from entering the U.S. for any reason, including imprisonment. But Olson told NPR that he would "support modifying the law to allow these individuals to be kept in maximum-security prisons in the territory of the United States."
Asked if his public comments endorsing plea deals are meant to give President Biden political cover to settle the 9/11 case — a move likely to face opposition from some Republicans in Congress — Olson said "that was not part of my motivation, but I hope that that might be a possible outcome of my speaking out."
He added: "Because I was someone whose wife was murdered on that day, and because I was a top-level official in the Justice Department in the Bush administration at that time ... [that] might give people a little bit more comfort in saying, 'Yes, we ought to resolve it in this way.'"
In addition to the five 9/11 defendants, 26 other men are being held at Guantánamo, out of roughly 780 who have passed through its prison since 2002. The majority of the remaining prisoners have never been criminally charged and have been approved for release by a parole-like board, yet remain in confinement while the U.S. searches for countries to take them. They are known as "forever prisoners." Meanwhile, the 9/11 case has been stuck in "pre-trial hearings" for more than a decade.
Olson told NPR he hopes Biden will take steps to resolve all Guantánamo litigation, which is also extremely expensive: The war court and military prison have cost U.S. taxpayers more than $6 billion since 2002.
"I don't think there's a huge downside for him communicating to the military officials involved in this decision-making process to let it go, get it over with, put it behind us," Olson said. "And I don't think there would be a huge hue and cry from the American people saying, 'How could you possibly do this?'"
He added: "I think people want to move on ... and I would hope that he and his advisers would say, 'Let's get this one off the table.'"
Olson raised another possible benefit of settling the 9/11 case: intelligence gathering.
"One of the possibilities, if they plead guilty and we take capital punishment off the table, is that they might be persuaded to tell their stories — how they were recruited, how this was all put together," he said. "We don't yet have those stories from these individuals, and I think the American people, and particularly people who were affected directly because a loved one was killed or maimed on Sept. 11, want answers to those questions."
In the past two months, Biden has released four Guantánamo prisoners — one was sent to Belize, one to Saudi Arabia, and two to Pakistan — indicating that his administration is ramping up efforts to negotiate prisoner transfers. But he has been publicly silent about the 9/11 settlement negotiations.
"I still feel that the individuals who boarded airplanes and took the lives of thousands of innocent individuals ... and attacked this country, and attacked this country's institutions, are unforgivable," Olson said.
"But it has to come to a conclusion in the interest of everyone, including the detainees, and the people whose families were taken from them on Sept. 11, and for this country," he added. "We can't just leave this dangling forever, and we can't have a situation where we're holding people without any kind of resolution interminably."
9(MDAxODcyMTgzMDEyMTgxMTY5NjYxN2I4OQ004))
Transcript
STEVE INSKEEP, HOST:
On September 11, 2001, Ted Olson received the news - his wife Barbara was on board one of the four planes that hijackers crashed that day. At the time, Ted Olson was solicitor general of the United States. His job was to support the U.S. government view in court, and he soon defended the U.S. response to the attacks in what was called the war on terror. The United States detained suspects at its military base at Guantanamo Bay, Cuba, and denied them the ordinary due process of law.
Olson's history explains why many people listened recently when he gave his opinion of Guantanamo. He said the military court there was, quote, "doomed from the start," and he called for a different approach. Five 9/11 defendants, including Khalid Sheikh Mohammed, have still not gone to trial. Olson talked with NPR's Sacha Pfeiffer at his Washington law office.
TED OLSON: It's clearly not working because we've had these individuals in custody for decades, and we have no end in sight. There's been no trials, and this can't go on forever. It has to come to a conclusion in the interests of everyone, including the detainees and the people whose families were taken from them on September 11 and for this country. We can't just leave this dangling forever, and we can't have a situation where we're holding people interminably without any clear resolution to the issues.
SACHA PFEIFFER, BYLINE: Although there are people who would be fine with that outcome and I think hope that it will just end with them dying in prison. Do you see that being a possible outcome?
OLSON: Well, it obviously is a possible outcome if we don't get to some kind of conclusion fairly soon.
PFEIFFER: What do you think the resolution should be?
OLSON: If these individuals are willing to plead guilty to criminal offenses and to accept a sentence of life imprisonment without possibility of parole, and on the other hand, the United States takes off the table a prosecution for capital punishment, then we get to the end of this.
PFEIFFER: So even though there would be no death penalty - they would not be executed, which many people want - you think this is a better and maybe the only practical resolution?
OLSON: I agree that this is the only practical resolution. The death penalty is not going to occur. Also, one of the possibilities if they plead guilty and we take capital punishment off the table is that they might be persuaded to tell their stories - how they were recruited, how this was all put together. We don't yet have those stories. And I think the American people, and particularly people who were affected directly because a loved one was killed or maimed on September 11, want answers to those questions.
PFEIFFER: If they do get life sentences, where do you think they should serve their time? Because as you know, right now, there's a law that prevents Guantanamo prisoners from entering this country for any reason, even to go into prison.
OLSON: Yes, I know that there are legal constraints that exist now. I think that those need to be revisited because there are places in the United States where we keep individuals under the tightest possible security in the United States. I think that's where the resolution should be. I think people can probably be convinced that that's a better resolution than Guantanamo, which is sort of a place in never-never land.
PFEIFFER: And a very expensive place.
OLSON: Yes.
PFEIFFER: So you would support repealing the law that now prevents Guantanamo prisoners from entering the U.S.?
OLSON: I would support modifying the law to allow these individuals to be kept in maximum security prisons in the territory of the United States.
PFEIFFER: Why are you speaking out about this now?
OLSON: Well, we can't tolerate a situation that has no end. It's just an open sore that needs to be resolved.
PFEIFFER: There are settlement talks underway. They've been going on for a year, but they're basically stalled. They're waiting for the Biden administration to weigh in on some key questions. When I saw that you spoke out about this, it made me wonder if you were trying to give the Biden administration cover in a sense, to make what might to some people be a politically unpopular decision to settle the 9/11 cases. Was that part of what you were trying to do?
OLSON: I wasn't - that was not part of my motivation. But I hope that that might be a possible outcome of my speaking out. Because I was someone whose wife was murdered on that day and because I was a top-level official in the Justice Department in the Bush administration at that time might give people a little bit more comfort in saying, yes, we ought to resolve it in this way, and let's forget about the idea of the death penalty hanging out there, which is not going to happen.
PFEIFFER: And I want to ask you a personal question because you lost your wife, of course. And I'm sorry you lost your wife. How are you feeling about what happened 22 years on?
OLSON: Well, that's a complicated question. Time does cause feelings of emotions to temper. I still feel that the individuals who boarded airplanes and took the lives of hundreds and thousands of innocent individuals and attacked this country and attacked this country's institutions are unforgivable. But I do feel that we have to come to a conclusion and deal with the fact that these individuals are in custody, and we just can't leave them hanging in limbo.
PFEIFFER: Do you think the 9/11 cases are actually likely to settle as you hope they will?
OLSON: I hope. I don't know. I can't predict this. It seems to me that if people think about this, including the defense lawyers and the prosecutors and the administration and the Justice Department and the military, I think that this problem, this situation has to be brought to a conclusion.
PFEIFFER: So Biden has one year before the next election. Do you think this could potentially happen in the next year?
OLSON: I certainly hope so. I don't think that there's a huge downside for him communicating to the military officials to let it go, get it over with and put it behind us. I don't think that there would be a huge hue and cry from the American people saying, how could you possibly do this? Most of the people that were ever in Guantanamo are gone now. They're either dead, or they've been released. And so I think he could get it done.
I don't know what goes on over there, but I would think that the answer to your question is there is a good possibility, and I would hope that he and his advisers would say, let's get this one off the table.
PFEIFFER: Former U.S. solicitor general for the United States Ted Olson, thank you very much for your time.
OLSON: Thank you. Transcript provided by NPR, Copyright NPR.
300x250 Ad
300x250 Ad