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When Are Secrets Not Secret?

Judge Andrew P. Napolitano on

"Three people can keep a secret if two of them are dead."

-- Benjamin Franklin (1706-1790)

Last week, President George W. Bush's torture regime reared its head in an unusual argument before the U.S. Supreme Court.

In 2002, Abu Zubaydah was captured by a militia in Pakistan and handed over to the CIA, which brought him to Poland where, under the supervision of CIA agents and American psychologists, he was brutally tortured until his removal to the Guantanamo Bay Naval Base in Cuba in 2006.

The Bush administration argued that Zubaydah was a high-ranking member of al-Qaida who possessed information needed to fight the war on terror. After his torture produced no actionable information, the CIA told the Department of Justice and the Senate that Zubaydah was not a member of al-Qaida, and it had no evidence of wrongdoing by him.

His lawyers filed a criminal complaint with the European Court of Human Rights against the CIA, its psychologists and the Polish intelligence agents who carried out the torture.

 

That court concluded that the torture did occur, and it referred the matter to Polish prosecutors to proceed criminally against the defendants. During that criminal proceeding, Polish prosecutors asked the DOJ for the names of those who tortured Zubaydah and documentation of what they did to him.

In the Supreme Court last week, the government's lawyer conceded that the names of the torturers and the nature of their grisly deeds are already known -- the psychologists wrote a book about it -- but the government will not confirm any of it because it constitutes state secrets.

So, if these so-called secrets are now publicly known, why does the government refuse to confirm them?

Here is the backstory.

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