Don't Panic (Yet) on Supreme Court and Gitmo

The headline reads "Justices Reject Gitmo Detainees' Appeal," and the short version of the story makes it sound as if the Supreme Court, led by the two new Bushies, is refusing to hear Gitmo cases.

The reality is somewhat less dire, although this is a matter that cries out for court intervention. The case involves two Chinese Muslims who remain at Gitmo although the government agrees they are not enemy combatants, or at least are not useful enemy combatants. The U.S. is purportedly trying to find somewhere for them to go, so far unsuccessfully. The trial court agreed they are being wrongfully detained, but also found that federal courts cannot do anything about it.

The case is scheduled to be heard in the Court of Appeals on May 8th, but the attorneys for the detainees were trying to jump the queue and go directly to the Supreme Court, something that usually is rejected. (See SCOTUSblog) The standard, under Supreme Court Rules is that the case must be of such "imperative public importance" as to require an immediate determination. Given that the case had been pending for a year in the trial court, for whatever reason, this was an uphill battle.

The Court already is wrestling with the issue of whether Congress deprived it of jurisdiction over Gitmo habeas corpus petitions, which was argued two weeks ago in Hamdan v. Rumsfeld. Even a sympathetic court would want to get that decided first. Reports (and here) from the oral arguments seem relatively encouraging.

The Petition to the Court presents a sad case indeed and is well worth reading. It alleges that the petitioners are Uighurs, who are a persecuted minority in the Xingjiang Autonomous Region of far-western China, who were sold by bounty hunters in Pakistan to United States forces. They have been held at Gitmo since June, 2002, mostly without contact with the outside world, including family or counsel.

At some point, they were determined not to be enemy combatants, but the notice to them, their counsel and even the federal court was delayed inexplicably and staggered to cause the maximum confusion. Now, the government claims the prisoners will be tortured if they are sent back to China and there is no other country that has agreed to accept them.

In fairness, there is strident disagreement on how these two landed in Gitmo. The government claims they attended a Taliban training camp in Afghanistan and fled to Pakistan through Tora Bora. The "bounty hunters" in the Petition become "Pakistan forces" in the government's Opposition.

Reading the two Supreme Court pleadings is a good education in the two views of what is going on at Gitmo. I tend to believe the petition. The government kind of lost me when it referred to the petitioners having "television, a stereo system, books and recreational opportunities: including soccer, volleyball and ping-pong."

The point is not whether these are good guys. The point is whether we are going to close the courts to them

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