2001 December 28

John Yoo to President Bush: Courts Cannot Hear Terrorists’ Habeas Corpus Petitions


Deputy Assistant Attorney General John Yoo and Deputy Assistant Attorney General Patrick Philbin advised the George W. Bush administration War Council member Jim Haynes that federal courts do not have jurisdiction to hear habeas corpus petitions from terrorist detainees held at Guantanamo Bay detention center. Yoo’s advice was one of several expressions by administration officials that neither the Courts nor Congress could rule on actions by the President of the United States when acting as Commander-in-Chief.

The Supreme Court rejected his argument in a series of decisions. In Rasul v. Bush (June 28, 2004), it rejected the argument that the federal courts did not have jurisdiction over foreign nationals being held as terrorist suspects. In Hamdi v. Rumsfeld (June 28, 2004), the Court rejected the argument that Yaser Esam Hamdi, an American citizen, did not have access to the federal courts to challenge his detention. In her opinion for the Court, Justice Sandra Day O’Connor famously wrote, “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”  And in Boumediene v. Bush, on June 12, 2008, the Court ruled that foreign nationals being held by the U.S. had the habeas corpus right to challenge their detention in U.S. courts.

John Yoo was also the author of the notorious “torture memo” of August 1, 2002, which argued that the CIA’s “hash interrogation” techniques did not constitute torture.

Learn more about President Bush and the detainees: Howard Ball, Bush, The Detainees, & the Constitution: The Battle Over Presidential Power in the War on Terror (2007)

Learn more about indefinite detention in the war on terrorism: https://www.aclu.org/blog/tag/indefinite-detention-0

Read: Karen Greenberg, The Least Worst Place: How Guantanamo Became the World’s Most Notorious Prison (2009)

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