7th Circuit, Federal Judges, Richard Posner, War on Terror

Someone Really Wants To Shut Up Judge Posner

Opinions get redacted or sealed all the time, but the latest from the Seventh Circuit is a doozy....

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And you’d think it would be Justice Scalia. But you’d be wrong!

So what darkened this legal luminary?

If you guessed “shadowy intelligence services,” you’re right. Congratulations! ATL would like to send you your prize! You win &#9608&#9608&#9608&#9608&#9608&#9608&#9608. Remember to ask for it by name.

Opinions get redacted or sealed all the time, but the latest from the Seventh Circuit is a doozy….

Professor Josh Blackman put up his favorite highlights from U.S. v. Daoud.

First, this illuminating page:

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You could blow off pages like that on the grounds that the facts underlying alleged terrorist plots should be protected as national secrets. It’s not an airtight position, but at least it’s arguable. But it’s a lot harder to justify developing legal standards and doctrine while hiding the ball:

It strikes me that if judges know that their opinions are about to get redaction ink vomited all over them, they should endeavor to write their opinions differently. For example, expend more time setting off general legal principles from any application to the facts — even at the risk of writing a redundant opinion. Or apply the law to factual hypotheticals, which may constitute dicta but at least gives the public a better sense of how the courts are applying the law.

It’s hard to say how much of an effort was put into getting around the redaction requirements. Judge Posner’s concluding paragraph does almost read like he was trying to articulate the legal standard in some way that wouldn’t get redacted. Still, not knowing what’s underneath the marker, most of the opinion reads as though Judge Posner wrote it as he regularly would and then let the chips fall where they may. But it’s not a typical opinion, so why draft it like one?

The entire 13-page opinion, to the extent you enjoy black markers, is available on the next page….

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