The Law Clerk Who Wrote Rasul v. Bush

Essay — Volume 92, Issue 3

92 Va. L. Rev. 501
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This article uncovers the deep doctrinal and personal roots of Rasul v. Bush, the landmark Supreme Court decision holding that federal courts have jurisdiction to hear challenges to the detention at Guantanamo Bay Naval Base, Cuba, of foreign nationals captured abroad in the war on terror. Under entrenched views of precedent, shared by lower courts, commentators, and the parties alike in Rasul, the Court could only reach that result by either distinguishing or overruling Johnson v. Eisentrager, a case arising from World War II which had arrived at the opposite conclusion regarding other habeas petitioners captured and detained abroad. However, Justice Stevens’ opinion for the Court took a more peculiar tack: it declared the case already overruled. Even stranger, the opinion did so by relying, pivotally, on an obscure dissent from an earlier case ignored by everyone else as irrelevant precedent concerning venue rather than jurisdiction. That dissent, in Ahrens v. Clark, was drafted in critical parts by a law clerk for Justice Rutledge named John Paul Stevens. 

The story of how Justice Stevens ingeniously related Eisentrager to the Ahrens dissent, and thereby reversed their precedential worth in Rasul, is a remarkable one in Supreme Court history. As told in this article, the story reveals the intriguing extent to which Stevens’ work in Ahrens over fifty years ago influenced the reasoning if not the result in Rasul. This telling, in turn, supplies insight into Rasul’s ramifications on the ability of another important class of captives in the war on terror – those confined abroad outside of Guantanamo Bay – to challenge their detention in federal court. While other articles have examined Rasul on a doctrinal or theoretical level, none have traced the decision back to Stevens’ work in Ahrens. That archaeology is essential for a full understanding of Rasul, and for an appreciation of its place in the history of the Supreme Court and the jurisprudence of Justice Stevens. 

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  Volume 92 / Issue 3  

What Makes the D.C. Circuit Different? A Historical View

By John G. Roberts, Jr.
92 Va. L. Rev. 375

A Jurisprudence of Risk Assessment: Forecasting Harm among Prisoners, Predators, and Patients

By John Monahan
92 Va. L. Rev. 391

Exclusionary Amenities in Residential Communities

By Lior Strahilevitz
92 Va. L. Rev. 437

The Law Clerk Who Wrote Rasul v. Bush

By Joseph T. Thai
92 Va. L. Rev. 501