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Abstract:
This entry for the Encyclopedia of American Civil Liberties examines the life and work of Justice John Paul Stevens. As the article relates, in Stevens's three decades on the Supreme Court, he has established himself as a highly independent thinker distinguished for his originality and lack of ideology. A prolific writer, Stevens has produced a wide range of opinions that share a dedication to restrained decision making in the common law tradition of case-by-case adjudication, a deep faith in the judicial exercise of reason and judgment, and a profound commitment to fulfilling the Constitution's fundamental purposes, including especially its promise of liberty.

Justice John Paul Stevens, Supreme Court, Biography, Jurisprudence

Abstract:
On a daily basis, we convey a wealth of information about our online and offline activities to various third parties, such as Internet service providers, telephone companies, credit card issuers, banks, and the like. Under the Supreme Court's third-party doctrine, government data mining of this information in individual or aggregated databases does not constitute a search regulated by the Fourth Amendment. According to the Court, any expectation of privacy we may possess in this information is categorically unreasonable, because we presumptively assumed the risk that it would be turned over to the authorities. Justice Stevens has signed onto this narrow view of the Fourth Amendment.

However, as this symposium paper on his jurisprudence argues, Justice Stevens also has suggested limits on the third-party doctrine and its applicability to data mining. In particular, he has implied that normative considerations rather than risk assumption ultimately must determine the extent of our freedom from unreasonable searches; that this freedom from government intrusion deserves greater rather than lesser protection when our privacy is threatened by technological forces beyond our control; and that technology that enables inferences about our personal lives may violate this freedom as much as actual exposure of our private activities. Although it is unclear whether the Court or even Justice Stevens will embrace these suggestions when confronted with third-party cases involving data mining, they at least point the way to a future in which the Fourth Amendment may staunch the loss of privacy from surveillance technologies that approach total information awareness about us.

Justice John Paul Stevens, data mining, Fourth Amendment, search, third party doctrine, Katz, Smith, Miller, Ferguson, Kyllo, Caballes, Place, privacy, technology, surveillance, ChoicePoint, LexisNexis, MATRIX, Total Information Awareness, TIA, National Security Agency, NSA

Abstract:
This article uncovers the 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, the Court could only reach that result by either distinguishing or overruling Johnson v. Eisentrager, a World War II case that had found no jurisdiction for 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 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 archaeology is essential for a full understanding of Rasul, as well as an appreciation of the decision's place in the history of the Supreme Court and the jurisprudence of Justice Stevens. The story also 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.

Justice John Paul Stevens, Justice Wiley Rutledge, Law Clerk, Rasul, Ahrens, Eisentrager, Braden, Habeas, Jurisdiction, Guantanamo Bay

Abstract:
Torture as a past and present tool of interrogation in Iraq threatens to undermine the country's struggle towards democracy. In confronting the substantial task of reforming interrogation practices and their public perception, Iraqis may draw valuable lessons from the United States' experience with the constitutional regulation of the admissibility of confessions in criminal cases. After reviewing the constitutional bases relied on by the U.S. Supreme Court to exclude confessions, this Article argues that writing Miranda-like rules into the Iraqi constitution would go far in alleviating the especially coercive environment of custodial interrogation in Iraq and restoring public confidence in the interrogation process. For example, adopting the core Miranda rights to silence and counsel as well as its requirements to warn would help shift control of the interrogation process from the state to the individual, and make Iraqis aware of their rights under the new regime. Furthermore, adapting Miranda's public safety exception and exclusionary reach to accommodate the security situation in Iraq would strike a viable balance between freedom from private violence and freedom from the state. Finally, excluding confessions obtained involuntarily or in violation of some more specific standard would help deter abusive practices that nonetheless may satisfy the adapted Miranda rules. Even if widespread compliance comes later rather than sooner, writing Miranda-like rules into the Iraqi constitution at least would supply, for more receptive times, an enduring legal framework for protecting the integrity and dignity of individuals under interrogation.

Iraq, Constitution, Interrogation, Confession, Exclusionary Rule, Miranda, Fifth Amendment, Sixth Amendment, Due Process, Torture, Abuse