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The Law Clerk Who Wrote Rasul v. Bush: John Paul Stevens' Influence from World War II to the War on Terror

32 Pages Posted: 13 Nov 2005  

Joseph T. Thai

University of Oklahoma - College of Law


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.

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

Suggested Citation

Thai, Joseph T., The Law Clerk Who Wrote Rasul v. Bush: John Paul Stevens' Influence from World War II to the War on Terror. Virginia Law Review, Vol. 92, 2006. Available at SSRN:

Joseph T. Thai (Contact Author)

University of Oklahoma - College of Law ( email )

300 Timberdell Rd.
Norman, OK 73019
United States
405-325-5269 (Phone)


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