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Former U.S. Solicitor General Ted Olson urges President Biden to settle 9/11 case

ADRIAN FLORIDO, HOST:

Nine-Eleven impacted Ted Olson both personally and professionally. His wife Barbara died on one of the hijacked planes that day. He was also the United States solicitor general at the time. And he defended the decision to use the U.S. military base in Guantanamo Bay, Cuba, to prosecute terrorism suspects. Now he's changed his mind, and he spoke about his new thinking with NPR's Sacha Pfeiffer, who covers Guantanamo. Hi, Sacha.

SACHA PFEIFFER, BYLINE: Hi, Adrian.

FLORIDO: What is Olson saying now that differs from his previous position?

PFEIFFER: Ted Olson used to support Guantanamo, but he now says it's totally dysfunctional. He's even calling it, quote, "doomed from the start." He points out that the military court has gotten hardly any convictions. There are still 31 prisoners there, some of whom have been there more than two decades without being charged. And Olson calls the 9/11 case, quote, "an open sore that needs to be resolved." The men accused in the 9/11 attacks, meaning Khalid Sheikh Mohammed and his four co-defendants, have still not been tried. So Olson is saying, no more. Here's part of what he told me.

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.

PFEIFFER: And, Adrian, by everyone, he's referring not just to the prisoners but the families of people who were killed or hurt on 9/11. And because Olson was a prominent conservative voice in the Bush Justice Department, that's a significant reversal.

FLORIDO: So then how does he say these cases should be resolved?

PFEIFFER: Well, for almost two decades, Guantanamo prosecutors have been trying to take the 9/11 case to trial and get those men sentenced to death. Olson is saying, give up on the death penalty. Realistically, it's not going to happen. The case is too bogged down. He told me there should be a settlement agreement.

OLSON: If these individuals are willing to plead guilty and to accept a sentence of life imprisonment without possibility of parole, hopefully that will bring about the conclusion of this long, unending chapter.

PFEIFFER: And Olson is encouraging President Biden to intercede and help usher those plea negotiations along.

FLORIDO: Does Olson think that President Biden is likely to do that?

PFEIFFER: He says he can't predict what the president will do, but he doesn't anticipate much public outcry if there's a settlement. And Olson told me that he hopes his own public support of a plea deal will provide political cover to Biden to push for that.

OLSON: Because I was someone whose wife was murdered on that day and because I was a top-level official in the Justice Department might give people a little bit more comfort in saying, yes, we ought to resolve it in this way.

PFEIFFER: And actually, 9/11 settlement talks have been underway for the past year, although they're in limbo while Guantanamo lawyers wait for the Biden administration to answer several key questions.

FLORIDO: What are some of those questions?

PFEIFFER: Questions like where the 9/11 prisoners would serve their sentences if they plead guilty. Currently, they couldn't go to an American supermax because there's a federal law that blocks Guantanamo inmates from entering the U.S. for any reason. But Olson told me he'd like that law changed.

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: However, Adrian, the 9/11 defendants would prefer to stay at Guantanamo. And that may sound surprising, but they're now able to sometimes eat and pray together. And if they get transferred to a supermax, they'd probably be held in isolation. So their lives at Gitmo may be better than they would in a maximum security prison in the U.S. But those kinds of conditions of confinement would have to be negotiated.

FLORIDO: Wanting to remain at Guantanamo - that just seems so counterintuitive.

PFEIFFER: It does. It really does. And by the way, Olson says another possible benefit of settling the 9/11 case could be intelligence gathering. He says if the defendants plead guilty, they might provide information like how they were recruited and how the 9/11 plot came together in more detail. And that's intel many people still want.

FLORIDO: That's NPR's Sacha Pfeiffer. Thanks.

PFEIFFER: You're welcome. Transcript provided by NPR, Copyright NPR.

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