Classified Opinions: Habeas at Guantánamo and the Creation of Secret Law
Citation: 101 Geo L.J. 1147 (2013)
The Uthman opinions highlight a key consequence of the use of classified information in Guantánamo habeas proceedings: the production of classified opinions. Indeed, the vast majority of district and circuit court opinions in Guantánamo habeas cases feature at least some redaction. Some have been so redacted as to become virtually incomprehensible. This raises two questions, the answers to which have consequences for judicial legitimacy. First, what is the law when an opinion is redacted or classified? Second, how can the public and the political branches exercise meaningful oversight of the courts where judicial reasoning is hidden behind a wall of government secrecy? This Note addresses each of these questions in turn before proposing combining the dominant redaction approach with Judge Leon’s summary approach to maximize comprehensibility and transparency while avoiding wholesale declassification.