Apple's Lawyer Knows All Sides of the Terrorism Debate

Former Solicitor General Theodore Olson address a news conference announcing a federal lawsuit to halt California's same-sex marriage ban, in Los Angeles on May 27, 2009. He is part of Apple's general counsel in taking on the FBI's demands to open the San Bernardino, California, shooter's encrypted iPhone. REUTERS/ Fred Prouser

In the legal fight between Apple and the FBI over opening an encrypted iPhone of the San Bernardino shooter, pro-FBI politicians have decried Apple as being insensitive to national security. But one of Apple's top attorneys has been on the government's side in terrorism cases and personally suffered from the largest terrorist attack on U.S. soil.

Ted Olson, who served as President George W. Bush's solicitor general, whose main job was to determine what legal position the United States would take in Supreme Court cases, lost his wife Barbara, who was killed when American Airlines Flight 77 crashed into the Pentagon, on his 61st birthday.

"We care very, very much, and I do personally, about any instance of terrorism or an effort to prevent it or redress it," Olson said to NPR Morning Edition anchor David Inskeep. "But we have to balance our constitutional rights and make sure that we protect what America is all about. So we can't cross the line of giving up protections that are built into our Constitution—terrorists want to tear that down. We can't give in to that."

Olson and his team's defense for Apple will largely focus on the First Amendment, saying the FBI and the Justice Department's demands to compel Apple to write a custom iOS software to unlock the smartphone against its will is infringing upon Apple's freedom of speech. In their motion responding to the order on Thursday, Apple listed court cases from the 1990s that set the precedent that computer code is a form of speech protected by the Constitution.

They also will target the FBI's use of the All Writs Act, a law from the founding of the Constitution that allows federal judges to command entities to aid on their behalf. "It does not grant the courts free-wheeling authority to change the substantive law, resolve policy disputes, or exercise new powers that Congress has not afforded them," Apple attorneys argue in their motion.

A longtime Republican who worked with Reagan and George W. Bush, Olson found himself in opposite sides with current Republican presidential candidates who are staunchly anti-Apple. When asked about Senator Marco Rubio's comments from Thursday's debate that Apple is fighting just to protect its brand, Olson said he thought it was "unfortunate that people running for office are saying these stuff without thinking them through."

Olson also expressed his fears that obliging to the FBI's demands just this once will lead to similar future requests. "There's really no limitation if the federal government, through a judge's order, can ask you to redesign your own products," Olson says. In the motion, Olson and his team referred to a Newsweek article in which local prosecutors were spoken to about their desires to open encrypted iPhones for their criminal, nonterrorism cases.

Olson has been in the fore of some of the most crucial court cases over the past 20 years. He successfully argued on behalf of Bush in Bush v. Gore in the Supreme Court, ending the recount of the contested 2000 Presidential election and giving Bush the keys to the White House. Bush rewarded Olson with the solicitor general position, and Olson worked for Bush until 2004.

In 2009, he joined with David Boies, the attorney who represented Gore in Bush v. Gore, to challenge California's Proposition 8, which sought to ban same-sex marriage within the state, in Perry v. Schwarzenegger. When asked to speak to Newsweek, Olson says he has "obliged to refer all such inquiries to Apple, which I have done."

In the 10th anniversary of 9/11, Olson reminisced to The Washington Post about losing his wife and learning to move on. "It's very important to put that in perspective: You're not the only one that has experienced a terrible tragedy, as thousands of other people did that day," Olson says.