That was the clear part of the message to emerge Wednesday from the Supreme Court argument on whether the men held as enemy combatants at the United States naval base in Cuba have been provided with constitutionally adequate means to challenge the legality of their detention.
A majority of the court appeared ready to agree that the detainees were entitled to invoke some measure of constitutional protection. Indeed, these justices seemed to treat that threshold issue as a bridge they had crossed long before they entered the courtroom.
That was the easy part of what the detainees’ lawyer, Seth P. Waxman, called “a particularly easy, straightforward case.” Less clear was what happens next, either procedurally or substantively.
The federal appeals court here ruled in February, in the decision the justices are reviewing, that because the detainees had no constitutional rights in the first place, no problem was posed by a 2006 law that stripped the federal courts of jurisdiction to hear habeas corpus petitions filed by detainees seeking to enforce those rights. The appeals court therefore did not rule on, or even examine in any detail, the procedures Congress set up to provide the detainees with limited rights to challenge their designation as enemy combatants.
Solicitor General Paul D. Clement, urging the court to uphold that ruling, argued that procedures provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 were better than adequate. The detainees were getting more access to judicial review, he maintained, than the writ of habeas corpus would have given foreign combatants when the Constitution was adopted.
“This is the remarkable liberalization of the writ, not some retrenchment or suspension of the writ,” Mr. Clement declared.
“Congress here has spoken,” he added. “The political branches have spoken. They have struck a balance. They’ve given these detainees better rights and access to administrative and judicial review.”
As his argument failed to gain traction, he rather remarkably began throwing pieces of it over the side. He even suggested for the first time that under the available procedures, the appeals court would be able to reach the ultimate judgment of ordering a detainee’s release. The detainees’ lawyers have argued that the statutes’ failure to authorize this remedy was a major flaw that condemned detainees to open-ended confinement no matter the outcome of their appeals.
“Certainly,” Mr. Clement said, “if this court thinks that the constitutional line essentially necessitates that the D.C. Circuit have the authority to order a release, there is no obstacle to that.”
By the end of the argument, an intense session that lasted 23 minutes beyond its allotted hour, it seemed most likely that the court would draw a road map for the appeals court to follow in expanding the procedural protections available to the detainees.
The significance of the eventual ruling, due by early summer, will lie in what features the road map contains. And that, in turn, may depend on how far Justice Anthony M. Kennedy is willing to go in joining an opinion that will in all likelihood be joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
These five were the majority in June 2006, when the court in Hamdan v. Rumsfeld invalidated the system of military commissions the Bush administration had set up to try selected detainees for war crimes. They were also in the majority in Rasul v. Bush, in 2004, in which the court ruled that, contrary to the administration’s view, federal judges had jurisdiction to hear cases filed by Guantánamo detainees.
“Aren’t you simply rearguing Rasul?” Justice Souter asked Mr. Clement at one point in a testy tone.
The new case, Boumediene v. Bush, No. 06-1195, concerns the “combatant status review tribunals” the administration has set up to validate the initial determination that a detainee is an enemy combatant. The tribunals are panels of military officers, who are not required to disclose to the detainee details of the evidence or witnesses against him. The military assigns a “personal representative” to each detainee, but defense lawyers may not participate.
Under the Detainee Treatment Act, detainees may appeal the tribunal’s decision to the United States Court of Appeals for the District of Columbia Circuit under circumscribed appellate procedures, including a presumption that the evidence before the tribunal was accurate and complete. The District of Columbia Circuit is currently considering how it will handle these appeals, including such questions as how much of the evidentiary record the government will be required to disclose on appeal.
The details of the tribunal and appeal procedures are relevant to the Supreme Court only insofar as the detainees can claim a right to due process or other constitutional rights that the federal courts historically enforce for prisoners through writs of habeas corpus. The court’s precedents permit substitutes for formal habeas corpus procedures as long as the substitutes offer the same basic protections.
During the argument on Wednesday, the justices’ focus on whether the detainees were being offered an adequate substitute appeared to assume that either a reasonable substitute or habeas corpus itself had to be provided.
Mr. Waxman, the detainees’ lawyer, listed several elements that he said were needed for an adequate substitute: “a fair notice of the fact,” “a fair opportunity to challenge them with the assistance of counsel before a neutral decision maker” and “the remedy of speedy release for somebody who is unlawfully being held in executive detention.”
These were “tried and true established procedures,” Mr. Waxman said, adding, “This court should issue a ruling saying for these people if the writ means anything, the time for experimentation is over.”
Mr. Waxman referred numerous times to the fact that the 37 detainees he represented have been held for nearly six years. After his second reference, Chief Justice John G. Roberts Jr. interjected, “Your argument wouldn’t be any different with respect to the availability of habeas if these people were held for one day, would it?”
Later, the chief justice suggested that the first few years of detention should not count because the procedures under review “weren’t available for the whole six-year period, were they?”
“No, of course not,” Mr. Clement agreed. Alluding to the lapse of time and the multiple rounds of litigation, he continued, “Congress in this area was providing unprecedented review and, of course, when you do something unprecedented, new questions will arise.”
Justice Kennedy, presumed to hold the balance in this case, was the focus of much attention by both sides. His few questions suggested that his main interest was in how far the appeals court might be able to go to remedy any flaws in the existing procedures.