Two more men now join the ranks of detainees held at the U.S. prison in Guantanamo Bay, Cuba, who have had their appeals rejected by the Supreme Court. Abu Bakker Qassim and A'del Abdu Al-Hakim were captured in Pakistan in 2001 and designated "enemy combatants" by President Bush.
The Chinese Muslims were subsequently cleared of charges that they were terrorist suspects but challenged their continued detention at Guantanamo Bay. The Bush administration said it is working through diplomatic channels to arrange for the transfer of the detainees to a country other than China, where they would likely face torture or death. Lawyers for the Muslims demand asylum in the United States for their clients, a move opposed by Paul Clement, the solicitor general.
A lower federal court judge declined to grant asylum, saying he lacked the authority to do so. A federal appeals court in Washington, D.C., is reviewing that decision. The detainees sought to shortcut that process by filing an appeal directly with the Supreme Court, asking the justices to intervene. Without an opinion or comment, the court refused to get involved.
In 2004, the Supreme Court ruled that those held at Guantanamo Bay could use the American federal courts to challenge their detention. Most have been incarcerated for years. Many detainees have filed lawsuits seeking their freedom.
Take American citizen Jose Padilla, whose appeal was rejected by the high court only two weeks ago. The former gang member had challenged his continued detention at a naval brig in South Carolina, where he had no access to American courts.
Designated an enemy combatant, the government eventually filed federal criminal charges and transferred him to a jail in Florida. The Supreme Court declined to hear the case, saying, among other things, that it was inappropriate for the court to get involved in a case that had not yet run its course through the lower courts.
Contrast Padilla with the case of suspected terrorist Salim Hamdan, just argued before the Supreme Court last month. The alleged driver and bodyguard for Osama bin Laden has challenged the administration's effort to bypass civilian courts and try him before a military tribunal. One reason the court agreed to hear this case: Hamdan had argued his claims before two lower federal courts. The only remaining avenue for appeal was now the Supreme Court.
In short, the high court is loathe to intervene when to do so would rob lower courts of the opportunity to hear the matter. Any different approach would result in the Supreme Court being inundated with premature appeals that have sidestepped the usual route of lower court review. With some 8,000 petitions for writ of certiorari annually already on its plate, the Supreme Court could not open the floodgates to even more appeals.
This, even when the short-term consequence is that two ethnic Uighurs remain in legal limbo despite the U.S. government's acknowledgement that they are not enemy combatants.
There is, nevertheless, hope for the Chinese Muslim detainees. Their case is scheduled to be argued next month before the D.C. Circuit Court of Appeals. A loss there would set up an arguably more timely appeal to the Supreme Court, with the justices more inclined to to hear the case.