Former Solicitor General Ted Olson, husband of 9/11 victim, says plea deal with 9/11 defendant was “best possible outcome”

August 6, 2024

The New York Times has this notable new piece with quotes from a notable lawyer about the (now revoked) plea agreement that would have taken away the possibility of a death sentence for the accused mastermind of the 9/11 attacks and two accomplices. Here are excerpts:

A former solicitor general of the United States whose wife was killed on Sept. 11, 2001, said he was relieved to hear that a plea agreement had been reached in the case, and puzzled when the secretary of defense upended the deal.

Last week, a senior Pentagon official who oversees the military commissions signed a plea agreement with the man accused of planning the attacks and two other defendants. Then, two days later, Defense Secretary Lloyd J. Austin III rescinded it, stirring uncertainty in the case at Guantánamo Bay….

“I don’t think I can opine on whether the secretary of defense had the authority to do what he did,” Theodore B. Olson, the former solicitor general, said in an interview on Tuesday with The New York Times, breaking his silence on the plea deal. “But it does strike me as very unusual that someone with authority to enter into these negotiations would make a deal with these defendants and the government would turn around and renege on the deal, to abrogate the deal.”

His wife, Barbara K. Olson, 45, a conservative legal analyst, was a passenger on American Airlines Flight 77 and on her way to Los Angeles for a television appearance when the plane was flown into the Pentagon in the Sept. 11 attacks.

At the time of the attack, Mr. Olson was serving as President George W. Bush’s solicitor general, the top lawyer responsible for Supreme Court cases for the administration. He said he was informed last Wednesday that prosecutors had reached a plea agreement the same way as other Sept. 11 family members on a Defense Department roster: in an email.

Mr. Olson called the resolution reached “the best possible outcome.” “There was never going to be an enforceable death penalty anyway,” he said. “It was not going to happen and this was going to go on forever and ever.”…

Mr. Olson emerged as an influential voice in favor of plea agreements in February, as negotiations were continuing behind the scenes in the case. He declared the military commissions at Guantánamo Bay a failure — “We tried to pursue justice expeditiously in a new, untested legal system” — and said any capital conviction that emerged from the court was doomed to years of appeals.

Deep divisions exist among relatives of the 2,976 people who were killed that day over how they think the case should be resolved. Some family members and their supporters say nothing short of the execution of Mr. Mohammed should resolve the case. Others argue the United States lost its moral authority to execute the men because they were tortured by the C.I.A….

Increasingly, a third group has emerged arguing that it would endorse the death penalty but, after 12 years in pretrial hearings, a resolution of the case should be a top priority through plea negotiations, which necessarily take death off the table.

Mr. Olson was very sympathetic to family members who “wanted to pursue this to the end of the earth as far as the death penalty is concerned,” he said. “But I thought that was not going to be possible. This had been going on for 20 years.”

“The best resolution, and I know people would disagree with me, and I respect other people’s opinions on this, especially the families, the best possible resolution for this was to bring it to a close: They admit what they did, they agree to cooperate and their sentence is life imprisonment. Period.”

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