In an extraordinary rebuke to President George W. Bush and Congress, the U.S. Supreme Court ruled 5-4 on Thursday that prisoners held at Guantanamo Bay have the right to go to federal court on a writ of habeas corpus . This is the third time since 9/11 that the Supreme Court has found that the president violated the law or the Constitution in limiting the opportunities of prisoners in the war on terrorism to obtain a fair hearing.

"The laws and the Constitution are designed to survive, and remain in force, in extraordinary times," wrote Justice Anthony M. Kennedy for the court. "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law."

Justice Kennedy, who has written the last two Guantanamo opinions for the court, joined with the four more liberal justices to form the majority. Chief Justice John G. Roberts dissented, joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito.

The court's decision does not mean that the Guantanamo prisoners will be released immediately. But it does permit them to go to federal courts to challenge their detention.

The court ruled that Congress would have had to explicity suspend the writ of habeas corpus if it wanted to deny Guantanamo prisoners that right. The Military Tribunals Act passed by Congress did not fulfill the requirement for a suspension of the writ, the court said.

The court went on to say that the Detainees Treatment Act passed in 2006 did not amount to an adequate substitute for habeas corpus because it lacked important elements that habeas protects. It limited the kind of evidence detainees could introduce and it denied them the right to challenge the president's authority to hold them.

The court noted that the writ of habeas corpus was one of the few protections of civil liberty in the original Constitution, which did not include a Bill of Rights. The habeas right of the individual to seek release from the government has long been considered a fundamental right under British and American law. 

Americans held abroad

In another case, the court ruled unanimously that the right of habeas corpus extended to American citizens held abroad by American forces. The case involved two Americans arrested in Iraq for violating Iraqi law.

In an opinion by Chief Justice Roberts, the court went on to say that U.S. courts cannot stop the transfer of prisoners to another country for violation of that country's laws. The men had claimed they would be tortured by the Iraqis. The chief justice ruled that this was a political question to be assessed by the political branches, not the courts. The courts may not second-guess the State Department's decision that Iraq does not torture it prisoners.

Robert Chesney, an expert on national security law, said Thursday, June 12, that this latter ruling "has implications for GTMO transfers to other states as well as the larger issue of extraordinary rendition."