Judge Andrew Napolitano: When Are Secrets Not Secret?

8 mins read

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.

On Oct. 6, 1948, a U.S. government plane was leaving from Robins Air Force Base in Warner Robins, Georgia, for a round-trip flight to Orlando, Florida, when it crashed, killing its crew. When surviving family members sued the government to determine who manufactured the plane and why it crashed, the feds declined to provide any information asserting that what was sought constituted state secrets.

In 1953, when the Supreme Court upheld this novel argument, it effectively changed the rules of evidence by permitting the federal government — without disclosing to a judge what the secrets are — to withhold evidence merely by making this claim.

Since 1953, the government has successfully asserted the state secrets claim dozens of times, each time claiming that the revelation of the so-called secrets will adversely affect national security.

In 2001, after the statute of limitations had long expired for any litigation over the 1948 crash, and reporters filed Freedom of Information Act requests for the alleged state secrets, a judge ordered the government to reveal them.

There were none.

The entire state secrets doctrine was based on covering up government embarrassment and wrongdoing, not the retention of legitimate secrets.

Now, back to the Zubaydah case in which he subpoenaed the DOJ for the records of his torture. Everyone involved in the oral argument knew that the state secrets doctrine was based on material misrepresentations the feds made to at least a dozen federal judges, yet the government treated it as if it were legitimate and compelling. The government argued that in wartime, its powers to keep its behavior secret are enhanced.

When Justice Brett Kavanaugh asked what war the U.S. is currently fighting that underlies its state secrets claim, the DOJ lawyer answered that the U.S. is still at war in Afghanistan!

The government’s argument that the U.S. is still at war in Afghanistan — this must be news to President Joseph R. Biden — is, of course, absurd. Yet its cavalier assertion raises serious constitutional questions about war, torture and secrets.

The state secrets doctrine is a fraud and has been used by the feds to cover up embarrassments and unlawful behavior for 68 years. And its employment by federal judges who have declined to require that the government produce the secrets for a judicial examination in secret — so the courts can determine if these secrets do exist and if their revelation would harm national security — is a craven rejection of a core judicial function.

That function is to assure that trials are fair and their outcome is based on evidence, not deception.

The claim that somehow the existence of war — in this case, a war that the whole world, except one federal prosecutor, knows is over — somehow justifies the detention without charges of a person as to whom the government has no evidence of wrongdoing, and that somehow war justifies torture, and that somehow all of this can be kept secret are claims that violate the Constitution and the federal anti-torture statutes that all who work for the government have sworn to uphold.

The Fifth Amendment guarantees Zubaydah due process, and the First Amendment guarantees transparency.

The government does not want to confront this. That Zubaydah was tortured for four years before the CIA and its Polish collaborators concluded that he was truthful demonstrates not only the reality of the government’s resort to criminal and medieval means to gather facts but also that torture as a means to the truth is useless and ruinous.

For all we know, Bush pardoned the psychologists and CIA agents who monitored the torture, but he could not pardon the Polish agents whose names and methods may soon be revealed.

At the end of the oral argument, Justice Neil Gorsuch asked the DOJ lawyer why the DOJ doesn’t permit Zubaydah to testify in the Polish proceedings. The same lawyer who had just told

Kavanaugh that the U.S. is still fighting in Afghanistan had no answer.

The government undermines the Constitution when it lies and when it tortures. What kind of society enforces criminal laws against harmless drug users but not against harmful government torturers?

PHOTO: Former Director of the Central Intelligence Agency John O. Brennan. Photo by Gage Skidmore. Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0).

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Judge Andrew P. Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. Now, Napolitano works as Fox News’ Senior Judicial Analyst, Judge Napolitano broadcasts nationwide on the Fox News Channel and the Fox Business Network, and lectures nationally on the U.S. Constitution, the rule of law, civil liberties in wartime, and human freedom. He also writes a week column, nationally syndicated by Creators.

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