Who Cares if You're Not an Enemy Combatant?

The increasingly famous Judge Robertson (who resigned from the FISA Court this week in protest) issued a fascinating opinion yesterday in a case in which (1) Combatant Status Review Tribunals (CSRTs) at Guantanamo had determined that two Chinese nationals (Muslim Uighurs) are not "enemy combatants"; but (2) the government had declined to release them anyway, arguing that even non-enemy combatants can be held until the end of hostilities. [Hat Tip: Obsidian Wings].

Makes you wonder what the point of the CSRTs is...

What's even more interesting about Robertson's opinion is that he ultimately concludes that he has no power to order the petitioners' release, for reasons I find difficult to dispute, given the current state of immigration law.  Talk about legal limbo.  It reminds me of the famous quote at the end of Chief Justice Taney's opinion in Ex parte Merryman, the case in which he rejected, in chambers, President Lincoln's unilateral suspension of habeas corpus:

I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions, and exceeded the authority intended to be given him; I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the president of the United States. It will then remain for that high officer, in fulfilment of his constitutional obligation to "take care that the laws be faithfully executed," to determine what measures he will take to cause the civil process of the United States to be respected and enforced.

Here's hoping someone's listening.