Ted Olson—the former U.S. solicitor-general in the George W. Bush administration who argued against basic legal rights for Guantánamo Bay prisoners and defended their indefinite detention and torture—made a stunning admission Thursday: The Gitmo military commissions don't work and should be shut down, and the government should strike plea deals with 9/11 defendants held at the prison.
In a Wall Street Journalopinion piece, Olson—perhaps best known for his consequential reversal on the issue of same-sex marriage equality—wrote that he "led a special team of lawyers tasked with overseeing all court challenges to the government's policy of detaining terrorism suspects" at Gitmo.
In that capacity, Olson—whose wife was a passenger on the plane that crashed into the Pentagon on 9/11—argued in the U.S. Supreme Court in Hamdan v. Rumsfeld that the "unlawful enemy combatants" who were imprisoned, and often tortured, at Guantánamo were not entitled to protections afforded by the Geneva Conventions. Nor were they subject to U.S. law or allowed a defense in American courts, Olson asserted, because the men (and children) were "stateless terrorists" and the prison is located on Cuban soil—even though Cuba has no jurisdiction over the military base.
"In retrospect, we made two mistakes in dealing with the detained individuals at Guantánamo," wrote Olson. "First, we created a new legal system out of whole cloth. I now understand that the commissions were doomed from the start. We used new rules of evidence and allowed evidence regardless of how it was obtained."
Evidence obtained through torture led to cases being declined or more lenient sentences than prosecutors sought. Susan J. Crawford, the Bush official in charge of deciding which terrorism suspects to try before Gitmo military commissions, declined to prosecute Mohammed al-Qhatani, the alleged would-be 20th 9/11 hijacker because, as she admitted in 2009, "we tortured" the defendant.
Col. Stuart Crouch, a Guantánamo prosecutor whose Marine Corps buddy was a pilot on one of the planes that crashed into the World Trade Center on 9/11, refused to prosecute Mohamedou Ould Slahi—who allegedly helped organize the plane's hijacking—because Ould Slahi was tortured.
In another example, seven out of eight members of a military jury convened to hear the case against Guantánamo detainee and alleged terrorist plotter Majid Khan recommended total clemency after the defendant testified how he endured torture including rape, being hung from a ceiling beam, and being subjected to the interrupted drowning method known as waterboarding while he was held at a CIA "black site" in Afghanistan.
Olson wrote that the U.S. legal system would have been more than capable of handling the cases of terrorism defendants, "but we didn't trust America's tried-and-true courts."
"In the 20 years since this ordeal began, no trial has even begun. There have been years of argument in pretrial hearings, which have produced no legal justice for the victims of 9/11," he noted. "Instead of helping Americans learn more about who carried the attacks out and why, they have produced seemingly endless litigation largely concerned with the treatment of detainees by government agents and the government's attempts to suppress certain information."
After Bush-era Pentagon General Counsel Jim Haynes allegedly told lead Guantánamo prosecutor Col. Morris Davis that acquittals were unacceptable, Morris resigned over concerns the process was "rigged." Other Gitmo prosecutors, including Lt. Col. Darrel Vandeveld, Maj. Robert Preston, Capt. John Carr, and Capt. Carrie Wolf, also requested transfers from the "rigged" military commissions.
"Our second mistake," Olson wrote in his Journal piece, "was pursuing the death penalty through the commissions. Death penalty cases are the most hotly contested legal proceedings, given their irreversible nature. We doomed these newly created commissions to collapse under their own weight."
While prosecuting these individuals in federal civilian courts would have been the right decision 15 or 20 years ago, Congress foreclosed that option in 2010 by banning the transfer of detainees to the U.S. for any purpose. Even if Congress were to lift that ban—which seems extremely unlikely—the only guarantee that federal court prosecution brings is years of appeals resulting from the legal morass of the past two decades. This is no resolution.
"If the 9/11 defendants held at Guantánamo are willing to plead guilty, and accept a life sentence at the military prison instead of the death penalty, we should accept that deal," OIson argued.
"Nothing will bring back the thousands whose lives were so cruelly taken that September day," Olson stressed. "But we must face reality and bring this process to an end. The American legal system must move on by closing the book on the military commissions and securing guilty pleas."
"The U.S. must bring these legal proceedings to as rapid and just a conclusion as possible."
Last year, military prosecutors and Guantánamo defense attorneys began negotiating potential plea deals that could spare 9/11 suspects from being executed in exchange for guilty pleas that would result in life imprisonment—and the continued operation of Gitmo for the foreseeable future.
Olson's admission is remarkable because it stands alone among top Bush, CIA, and Pentagon lawyers like Haynes, Alberto Gonzalez, John Yoo, Jay Bybee, and John Rizzo who designed, deployed, and defended the administration's policies regarding indefinite detention, torture, extraordinary rendition, and denial of basic legal rights.
Nearly 800 men and boys have been imprisoned at Guantánamo since it opened in January 2002. According to Col. Lawrence Wilkerson, who served as chief of staff to then-Secretary of State Colin Powell, the majority of Gitmo detainees were innocent and then-President George W. Bush, Vice President Dick Cheney, and Defense Secretary Donald Rumsfeld knew it.
Although Bush's successor, President Barack Obama, took steps toward closing Guantánamo and ending torture, both endured, even as Gitmo's population decreased dramatically during the Bush and Obama administrations.
Five Guantánamo detainees have been released during the tenure of President Joe Biden, including Khan, who was transferred to Belize earlier this week. Biden—whose former press secretary said closing Guantánamo is "our goal and our intention"—has been criticized for failing to close the prison after 21 years in operation.
As Olson noted in his opinion piece, 20 of the 34 remaining Guantánamo prisoners have been cleared for release. NBC News reported Thursday that "two brothers from Pakistan, Abdul Rahim Ghulam Rabbani and Mohammed Ahmed Ghulam Rabbani, are also nearing transfer, according to two senior U.S. officials."
"Nine of the remaining men, including the 9/11 defendants, face charges in the military tribunals," Olson wrote. "To date, there have been a total of nine convictions, several of which have been overturned in whole or in part on appeal, mostly by U.S. federal courts. Today, there are no trial dates set for any of the still-pending cases."
Unlike Maj. Gen. Michael Lehnert, Gitmo's first commander, Olson does not go so far as to call for the prison's closure. However, Olson concludes that "the U.S. must bring these legal proceedings to as rapid and just a conclusion as possible."
"True justice seems unattainable," he wrote. "The best the U.S. government can do at this point is negotiate resolutions of the remaining Guantánamo cases."