The Supreme Court on Monday declined to hear urgent appeals from two groups of detainees at Guantanamo Bay. The 45 men sought to challenge the constitutionality of a new law stripping federal judges of the authority to hear challenges to the open-ended confinement of foreign citizens held at the U.S. naval base in Cuba and designated as enemy combatants.
The court's action leaves standing a ruling six weeks ago by the federal appeals court here that upheld the jurisdiction-stripping provision of the Military Commissions Act of 2006. The justices' refusal to hear the case at this point, before any of the detainees have availed themselves of alternative appeal procedures that their lawyers argue are unconstitutionally truncated, does not foreclose eventual consideration by the court after those appeals have run their course.
The men have all been held at Guantanamo Bay for more than five years, and none has been charged with a crime. They filed petitions for habeas corpus, challenging their continued confinement, before Congress ordered in the 2006 law that all such petitions must be dismissed and no new ones could be accepted for filing.
Ordinarily, the Supreme Court makes no comment when it turns down an appeal. In this instance, the court offered an unusual degree of transparency, with two separate opinions accompanying the one-sentence order denying the two petitions.
One was a dissenting opinion from three justices, Stephen G. Breyer, David H. Souter and Ruth Bader Ginsburg, who voted to hear the cases as "significant ones warranting our review," as Breyer said in an opinion that spoke for the three.
The separate opinion was a statement "respecting the denial," signed jointly by justices John Paul Stevens and Anthony M. Kennedy. They explained why they voted against hearing the cases. They said the court should follow its usual practice for ordinary prison inmates and require "the exhaustion of available remedies as a precondition to accepting jurisdiction over applications for the writ of habeas corpus."
Despite the apparent transparency, the real story was probably one that no justice acknowledged: the inability of the court's four most liberal members, justices Stevens, Breyer, Souter and Ginsburg, to count on Kennedy's eventual vote.
While four votes are sufficient to grant a case under the court's rules, five are of course necessary to win it.