WASHINGTON -- The Supreme Court gave the Bush administration permission yesterday to continue for several weeks to pick up Haitian refugees at sea and carry them back home without letting them ask for asylum.
At the same time, the court promised to act speedily on a test of the legality of that policy, telling lawyers for both sides to get ready for action by the court early this fall.
The court's order, adopted by a 7-2 vote, was a major, even if only preliminary, victory for the administration, since a federal appeals court had struck down Wednesday the policy that President Bush ordered in late May. Yesterday's order suspends the appeals court decision.
Although the Supreme Court did not uphold the refugee policy, its action was at least a hint that a majority was not impressed by what it hadseen so far of the latest legal challenge to U.S. policy by refugees seeking to flee from Haiti in the wake of a military coup there in September.
Most if not all of the fleeing refugees want to come to this country and seek asylum here because of their belief that they face political persecution and even death if they remain in Haiti.
What the court has seen so far of the refugees' latest legal claims was only the decision against the policy by the 2nd U.S. Circuit Court of Appeals in New York City last week, plus a quick exchange of arguments by lawyers for the government and the refugees. If the court does grant review of the case, both sides will get more chances to bolster their arguments before a final decision.
Justices Harry A. Blackmun and John Paul Stevens, who dissented yesterday, said they could not support any implication that the government was likely to win ultimately on the legal issue.
Those justices noted that eight lower court judges had examined the legal question underlying U.S. law on refugees' rights and had split evenly in their reactions to it.
The dissenters said the Supreme Court should have allowed the appeals court decision to go into effect because the potential injuries facing the fleeing refugees were far greater than any harm that might befall the government if its refugee policy were interrupted.
Voting to allow the government's policy to continue, by blocking the lower court ruling, were Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Sandra Day O'Connor, Antonin Scalia, David H. Souter, Clarence Thomas and Byron R. White.
The majority wrote no opinion; its order told the administration to file its formal appeal defending the refugee pickup policy by Aug. 24 and set a Sept. 8 deadline for lawyers for the refugees to reply.
Because of that speeded-up schedule, the court may say even before a new term starts, on Oct. 5, whether it is going to give full review to the policy's legality.
The policy being enforced by a Coast Guard vessel in the Windward Passage off Haiti for the past two months involves the interception of any boat leaving Haiti that the Coast Guard thinks is carrying refugees seeking entry into the United States. The Coast Guard carries such boats' passengers back to shore.
The refugees thus get no review of their possible eligibility for asylum before being put ashore in Haiti.
The administration told the court last week that the policy had all but stopped boat people from fleeing Haiti. It said fewer than 300 Haitians had been picked up and returned.
If the court had not done as it did yesterday, the government argued, tens of thousands of Haitians would again risk their lives in rickety boats to try to get to the United States.
The administration prefers to have Haitians who want to come to the United States seek permission from U.S. officials in Port-au-Prince. It said that in recent weeks, some 9,000 Haitians had responded to that invitation.
The Justice Department said last week that the government considered refugee processing inside Haiti to be "the most equitable and humanitarian way to deal with this situation."
The refugees' lawyers, however, said that only 82 out of the 9,000 people who approached U.S. officials in Haiti had gained asylum and that thousands of other Haitians who wanted to leave refused even to go to see U.S. officials, for fear of reprisals from the military regime.
In their challenge to the interception policy, the refugees' lawyers contend that U.S. refugee law -- as well as a United Nations protocol that the U.S. government has signed -- forbids the return of political refugees to their homeland if they face persecution there.
The federal appeals court found that the current policy violates U.S. law and deviates from the international law embodied in the U.N. protocol on refugees.