Will Scharf Memo Says Congress Must Approve Habeas Suspension, Citing 1305 Origins
Updated
Updated · The New York Times · Jun 15
Will Scharf Memo Says Congress Must Approve Habeas Suspension, Citing 1305 Origins
2 articles · Updated · The New York Times · Jun 15
Summary
An April 29, 2025 confidential memo by White House aide Will Scharf was published, laying out the legal basis, limits and history of the writ of habeas corpus.
Article I, Section 9 allows suspension only in rebellion or invasion, Scharf wrote, and courts have "almost uniformly" held that Congress—not the president acting alone—must authorize it.
The memo argues suspending the writ offers limited executive benefit because courts require either habeas review or a close substitute, especially when civilian courts remain open.
Historical examples in the memo run from Lincoln's 1861 clash with Chief Justice Taney to World War II and Guantanamo cases, with Scharf describing the German saboteur tribunal as the main narrow exception.
Scharf traces the writ to 1305 and says its protection against arbitrary detention has applied broadly on U.S. soil to citizens and non-citizens, with only rare wartime carve-outs.