Habeas corpus – literally “you have the body” – the historic right to face criminal charges in a court of law, has taken a severe beating from the Bush administration, but it is not dead yet.

In a move that court experts called unusual, the U.S. Supreme Court in June reversed an earlier decision and decided to consider cases brought by detainees held at Guantanamo Bay, Cuba. The court, in its last day of the 2006 session, said it would hold hearings on the matter. In April, it had declined to hear the detainees’ appeals.

Because the reconsideration required the vote of five justices, instead of the four needed to simply take up a case, Linda Greenhouse of the New York Times wrote “the development strongly suggested that a majority of the court retains concerns about the current regime for determining and challenging the detainees’ designation as enemy combatants.”

Twice before, in 2004 and 2006, the Bush administration lost in high court actions on the same issue. But the court now has a solid four-member conservative block with a frequent ally in Justice Anthony Kennedy. That means many 5-4 conservative victories.

The 2006 Military Commissions Act was intended to assure the end of habeas corpus for “enemy combatants,” by setting up military commissions at Guanatanmo to hear detainees cases rather than using the federal court system. Before the final vote, Sen. Arlen Specter, R-Penn., tried to remove a section prohibiting any federal court from hearing habeas corpus appeals. But his amendment lost, 48 to 51. Maine’s Sen. Susan Collins voted no. Sen. Olympia Snowe, absent for a family funeral, did not vote. Sen. Collins voted for the unchanged bill, as did Sen. Specter, although he called the measure unconsitutional. Sen. Snowe again did not vote.

Sens. Specter and Pat Leahy, D-Vt., raised the issue again last month, introducing a bill to restore habeas corpus. The vote of 56 to 43 lacked the necessary 60 votes needed to block a filibuster. Sen. Collins voted against cutting off debate. Sen. Snowe, with five other Republicans, voted with the Democrats to allow a vote on the bill.

To a layman, the Constitution seems clear on the matter. It states that “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.”

Last January, before Alberto Gonzales resigned under fire as attorney general, he argued that the Constitution didn’t guarantee the right but merely said when it could not be suspended. That ludicrous position could rule out the guarantees of free speech, assembly and religion, also phrased in negative terms: “Congress shall make no law …”

Anyhow, the Sixth Amendment sets forth the legal features of habeas corpus in clear, positive terms.

With Congress failing to make a correction, it is up to the Supreme Court to save this historic right.