If either statutes or decisions could be made private property, it would be in the power of an individual to shut out the light by which we guide our actions. – Justice McLean, Wheaton v. Peters, 33 U.S. 591 (1834).

No, this is not a post about intellectual property (Wheaton v. Peters concerned the issue of whether a court reporter could copyright the text of a judicial decision). Imagine instead that statutes and court decisions could be classified, so that no one without a security clearance could be aware of the rules of law contained therein. TechDirt reports that the United States Court of Appeals for the D.C. Circuit has issued a classified ruling in the case of Guantanamo Bay detainee Adnan Farhan Abd Al Latif. I usually try to link to court decisions that I discuss, so here you go , but it’s a bit pointless in this case:

The District Court ruled last year that Latif should be released for lack of evidence, but now we do not know what the government is to do. Perhaps more importantly, we do not know why.

In his book The Morality of Law, the legal philosopher Lon L. Fuller imagined a hypothetical king who created a legal system through trial and error. Fuller used this thought experiment to arrive at a number of features that a legal system must have in order to avoid failure. One of these key features is publicity: failure to publicize or make known the rules of law will lead to failure.

Now, in the name of the War on Terror, we have secret court decisions issuing secret rules of law. Not redaction – a court redacting sensitive information from an opinion is understandably necessary – but a judicial interpretation of the law that is entirely unknown to the public. This is a troubling development, because as Lon Fuller and Justice McLean point out, if the law is secret or otherwise unavailable, people will be unable to use it to “guide [their] actions.”