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Onetime supporter of Guantánamo's military court now says it was 'doomed'

Former Solicitor General Ted Olson (2nd left) sits with Bush administration lawyers during the Senate Judiciary Committee's hearing on Guantánamo detainees on July 11, 2006, on Capitol Hill in Washington, D.C.
Tim Sloan
AFP via Getty Images
Former Solicitor General Ted Olson (2nd left) sits with Bush administration lawyers during the Senate Judiciary Committee's hearing on Guantánamo detainees on July 11, 2006, on Capitol Hill in Washington, D.C.

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."

This story was adapted and edited for digital by Miranda Kennedy and Majd Al-Waheidi. contributed to this story

Copyright 2023 NPR. To see more, visit https://www.npr.org.

Sacha Pfeiffer is a correspondent for NPR's Investigations team and an occasional guest host for some of NPR's national shows.
Monika Evstatieva is a Senior Producer on Investigations.

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