The high court, on its last day in session on Monday, took no action on the Uighurs' pending petition. The justices offered no explanation for the inaction.
A federal judge ordered the Uighurs set free eight months ago, but no branch of government appears willing, or able, to step up to solve the problem. The men are starting their eighth year at the US terrorist detention facility at Guantánamo Bay, Cuba.
"I am deeply disappointed," Boston lawyer Sabin Willett said Tuesday. He has presented the high court with a petition laying out a potential landmark case. It asks the justices to examine the scope of judicial power to force the executive branch to provide genuine freedom for Guantánamo detainees ordered released long ago.
"The Great Writ of habeas corpus which used to be 'open the jail door and do it now' – forget that, it's gone," Mr. Willett says.
The Uighurs cannot be sent back to western China, where they fear abusive treatment. Few countries have expressed interest in helping them resettle. A federal judge ruled in October that because the executive branch had been unable to find new homes for the men overseas, they should be released in the US.
Government lawyers objected, and a federal appeals court panel in Washington overturned that ruling in February. The appeals court said the judge exceeded his authority.
In a further complication, Congress recently passed a law barring the executive branch from bringing any Guantánamo detainees onto US soil other than for prosecution.
Government lawyers say efforts to find suitable countries for resettlement are ongoing. Two weeks ago, four Uighurs were resettled in Bermuda and discussions are under way to send others to Palau in the tropical south Pacific.
Willett says negotiations involve only a few of the Uighurs, not all of them. "So this case isn't going anywhere any time soon," he says.
In their appeal, the Uighurs say they are entitled to actual freedom from illegal detention, not just promises that the government is working on it.
"Somebody has to deal with this," Willett says. "These poor guys now sit for three more months in prison because nobody wants to deal with this."
Government lawyers say the Uighurs are no longer being treated as enemy combatants and are living under the least restrictive conditions at Guantánamo. That status combined with ongoing resettlement efforts are all the Uighurs are entitled to, Justice Department lawyers say.
Solicitor General Elena Kagan urged the high court to reject the Uighurs' case. "[The Uighurs] have already obtained relief," she wrote in her brief. "They are free to leave Guantánamo Bay to go to any country that is willing to accept them."
Ms. Kagan noted that President Obama has pledged to close Guantánamo by Jan. 22, 2010, suggesting a resolution of the Uighurs' plight is approaching.
"The habeas statute recognizes a federal court's authority ... to order release from unlawful government custody, but neither the habeas statute nor any other source of law gives [the Uighurs] the distinct right to be brought into the United States," Kagan said in her brief. "That authority has long been vested exclusively in the political branches under [US immigration laws]."