When the Supreme Court in 2004 ruled in two cases on detainees in the war on Islamic terrorism, we responded with an editorial headlined “The Grandeur of Justice.” We noted that the Constitution provides “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Habeas corpus is the right of a prisoner to ask the government to justify his detention to a court. We noted that Congress and President Lincoln had suspended the right of habeas corpus during the Civil War. Wrote we: “the framers of the Constitution, at the founding of America, understood in the first article — not even in an amendment, but in the first article — not only that the right of habeas was important enough to enshrine, but also that the public safety is important enough so that Congress may suspend the habeas right.

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Congress rose to the task the Nine assigned it, passing by overwhelming margins the Detainee Treatment Act of 2005. Senators Obama, Clinton, and Kerry all voted for it, as did Rep. Nancy Pelosi. The law established procedures for “status review” of detainees at Guantanamo Bay, Cuba, and in Afghanistan and Iraq, but it also held that other than those review procedures, “no court, justice, or judge shall have jurisdiction to hear or consider — an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” Congress followed up by passing the Military Commissions Act of 2006.

This suspension of habeas corpus is what was rebuffed yesterday by five of the nine — Justices Souter, Kennedy, Breyer, Ginsburg, and Stevens, who, in the case of Boumediene v. Bush, found the Detainee Treatment Act and the Military Commissions Act unconstitutional in the way they suspended the habeas corpus right for Guantanamo detainees. The majority generated a scathing dissent by the chief justice of the United States. “Who has won?,” Chief Justice Roberts wrote. “Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit–where they could have started had they invoked the DTA procedure.”

Also: “Not Congress, whose attempt to ‘determine — through democratic means — how best’ to balance the security of the American people with the detainees’ liberty interests … has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.”

Justice Scalia, in a dissent of his own in which he was joined by Justices Roberts, Thomas, and Alito, made the case that the court’s decision will result in more Americans being killed by terrorists and more detainees being turned over to foreign countries where they will be treated worse than at Guantanamo. “At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield,” Justice Scalia wrote. “In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Still another murdered an Afghan judge. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq.”

As powerful as we find the dissents of Justices Scalia and Roberts, it is hard to fault the majority for being sticklers for the habeas right, which, as Justice Kennedy points out, was so important a right that it was written into the body of the Constitution before the Bill of Rights. The institution on the spot now is the Congress. If it meant what it said when it passed the detainee legislation in 2005 and 2006, the right move for it now is to find that America was invaded at the outbreak of this war and formally to suspend the habeas right. In the meantime, we await the exercise of habeas rights by the Americans, Israelis, and freedom-loving dissenters rotting in Islamist dungeons and praying for our victory in battle.