By Patti Waldmeir in Washington
The Bush administration on Wednesday faced intense grilling from the US Supreme Court about its treatment of detainees at Guantánamo Bay in Cuba, in a case that could prove an important test of the power of courts in the battle against terrorism.
The nine-person court appeared almost evenly divided over whether to expand the right of Guantánamo prisoners to challenge their detention in court.
The court heard two consolidated cases on Wednesday, Boumediene v Bush and Al Odah v United States, both brought by Guantánamo detainees who claim they have the right to dispute their imprisonment using a writ of habeas corpus - an ancient judicial procedure, dating back to the time of England's Magna Carta and enshrined in the US constitution, which allows prisoners to fight arbitrary imprisonment.
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But Congress passed a law in 2006 that stripped federal courts of the authority to hear habeas cases brought by Guantánamo detainees. Detainees were given a limited right to contest their detention in federal court, but it does not allow them to have lawyers or to view all the evidence before them, as would be possible in a habeas case.
"Congress has spoken. The political branches have spoken. They have struck a balance," the government's chief Supreme Court lawyer, Paul Clement, the US solicitor-general, told the court on Wednesday. He insisted that judicial review procedures available to Guantánamo prisoners were adequate to replace habeas rights and that federal courts should have no further role in evaluating detentions.
But the detainees' lawyer, the former solicitor-general Seth Waxman, said the fact that his clients had been held for six years already without being charged or having a chance to challenge their detention in a fair proceeding suggested that the government's alternative to habeas did not meet constitutional standards.
"The time for experimentation is over," he said, arguing that government efforts to come up with an alternative to habeas had failed.
Justice Anthony Kennedy, who is likely to hold the balance of power in the case, appeared to be seeking a narrow middle ground between the position of the two camps.
After more than an hour of lively arguments, in which the advocates and the justices disputed habeas corpus rights in cases dating from 18th-century England to the US after the second world war, it was not clear how they would rule. They are expected to hand down their ruling by June or July.
The court has repeatedly rebuked the Bush administration for its handling of detainees in the "war on terror", but may this time duck the issue of the constitutional rights of detainees and issue a narrower ruling.
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The United States Supreme Court 
The United States Supreme Court has heard a plea that terrorism suspects being held at the U.S.  base at Guantánamo Bay, Cuba, should be given the opportunity to challenge their detention in American courts.

Demonstrators outside the court chanted and waved signs calling on the nine high court justices to grant the detainees habeus corpus, the age-old legal principle that allows prisoners to challenge their detention before a neutral judge. Inside the court,  and former   argued on behalf of a group of 37 detainees, part of the 305 prisoners now being held at Guantánamo.

"All have been confined at Guantánamo for almost six years," he said. "Yet, not one has ever had meaningful notice of the factual grounds of detention, or a fair opportunity to dispute those grounds before a neutral decision-maker."

But Waxman appeared to have little success in convincing some of the high court's more conservative justices that the Guantanamo detainees have a constitutional right to challenge their detentions in court. Among the skeptical was Supreme Court Justice Antonin Scalia.

"You are appealing to a common law right that somehow found its way into our Constitution without, as far as I can discern, a single case in which the writ right was ever issued to a non-citizen," he said.

Some of the other justices appeared more sympathetic, including Justice .

"Now it has been six years, and habeas is supposed to be speedy, and yet people have serious arguments anyway that they are being held for six years without even having those arguments heard," he said.

Since January 2002, more than 750 people have been held. Many of the 305 prisoners at Guantánamo have complained of abuse and almost all have been confined for years without charges. Around 470 other prisoners have been released over the years, and the U.S. said it intends to try 60 to 80 of those currently in detention. 

Since 2002, just three prisoners have been formally charged, and only one has been convicted, as part of a plea bargain. , an Australian citizen, who admitted to training with , was repatriated to Australia to serve a nine-month prison sentence.

The Supreme Court ruled against the Bush administration in two previous cases concerning the legal rights of the Guantánamo detainees. Congress got involved in the issue in 2006 and passed a law that was designed to keep detainee appeals out of the civilian court system and refer them instead to military commissions.
Aerial view of Guantánamo Bay, Cuba.
But  and  groups say the alternative procedures set up by Congress and the Bush administration deprive the detainees of basic rights.

"At issue here that the Supreme Court decided was; 'Do we have a king in this country who is not bound by the rule of law and not bound by the Constitution? Or do we have a president that is subject to the Constitution?," said Vincent Warren, executive director of the .

Conservative legal scholars argue against U.S. constitutional protections for foreign terrorist suspects.

"If the courts are going to be in charge of the conduct of warfare, we are going to be a much less safe country," said Andrew C. McCarthy, who is with the .

A decision by the Supreme Court in the Guantánamo case is expected before the end of June.