NEW VOICES: Ted Olson, Solicitor General in the Bush Administration, Calls for End to Guantánamo Death Penalty Cases

In an op-ed in The Wall Street Journal, Theodore B. Olson, for­mer U.S. Solicitor General from 2001 to 2004 dur­ing President George W. Bush’s admin­is­tra­tion, called for a halt to the use of the death penal­ty against those impli­cat­ed in the ter­ror­ist attacks of 9/​11. He rec­om­mend­ed that the cap­i­tal pro­ceed­ings against the defen­dants being held in Guantánamo Bay be brought ​“to as rapid and just a con­clu­sion as possible.”

Olson, whose wife was killed on 9/​11, stat­ed, ​“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. Nothing will bring back the thou­sands whose lives were so cru­el­ly tak­en that September day. 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.”

He called the cre­ation of the mil­i­tary com­mis­sions a mis­take: ​“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. We tried to pur­sue jus­tice expe­di­tious­ly in a new, untest­ed legal sys­tem. It didn’t work. The estab­lished legal sys­tem of the U.S. would have been capa­ble of ren­der­ing a ver­dict in these dif­fi­cult cas­es, but we didn’t trust America’s tried-and-true courts. In the 20 years since this ordeal began, no tri­al has even begun.”

Olson said that pur­su­ing the death penal­ty in these cas­es was an added mis­take: ​“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,” he wrote.

According to The New York Times, about 780 detainees have been held at Guantánamo Bay since 2002. Currently, 34 detainees remain, 20 of whom have been cleared for trans­fer to a dif­fer­ent coun­try, 10 are await­ing tri­al, one has been con­vict­ed, and three are held in ​“indef­i­nite law-of-war deten­tion and are nei­ther fac­ing tri­bunal charges nor being rec­om­mend­ed for release.”