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.”


Theodore B. Olson, The U.S. Must Resolve the Cases of the Guantanamo Detainees, Wall Street Journal, February 2, 2023 ; The Guantánamo Docket, The New York Times, February 22023