Justice Department lawyers have argued that only the president or Congress has the legal authority to order the Uighurs' release into the United States. They have also said that immigration laws would preclude them from entering the country because they received weapons training at a camp operated by a designated terror organization.

Rogers rejected those arguments, writing that courts have the power to order the release under habeas corpus, a centuries-old legal doctrine that allows prisoners or detainees to challenge their confinement in federal court. The judge also rejected the argument that immigration laws would bar the Uighurs' entry, writing that such an interpretation would "rob" the men's rights of meaning.

Even if the men had received weapons training, she wrote, that "cannot alone show they are dangerous, unless millions of United States resident citizens who have received fire arms training are deemed to be dangerous as well."

From her dissent,available here (pdf).

First, as regards the likelihood of success on the merits, the government has abandoned its theory that petitioners can be held as enemy combatants, and the government does not argue that it may indefinitely imprison a person at Guantanamo solely because it deems him dangerous.”

Instead, the government now makes two arguments: first, that under the separation of powers the decision on whether to admit the petitioners into the United States “rests solely with the political branches,” Gov’t’s Mot. for Stay at 13-16, and second, that immigration laws preclude a habeas court from ordering the release of an inadmissible alien into the United States. On both points, the government does not show “a strong likelihood of success on appeal.”

The first argument misstates the law. In interpreting immigration statutes, the Supreme Court has made clear that, in at least some instances, a habeas court can order an alien released with conditions into the country despite the wish of the Executive to detain him indefinitely. Clark v. Martinez, 543 U.S. 371, 386-87 (2005); Zadvydas v. Davis, 533 U.S. 678, 695 (2001). It is thus both inadequate and untrue to assert that the political branches have “plenary powers over immigration,” Gov’t’s Reply at 2. See Zadvydas, 533 U.S. at 695 (purported “‘plenary power’ to create immigration law” is “subject to important constitutional limitations.”)

I was glad to see her cite Zadvydas, a case I quote often for the following language:

A statute permitting indefinite detention of an alien raises a serious constitutional problem. The Fifth Amendment's Due Process Clause forbids the government to deprive any person of liberty without due process of law. Freedom from imprisonment -- from government custody, detention, or other forms of physical restraint -- lies at the heart of the liberty that Clause protects. Government detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow non-punitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual's constitutionally protected interest in avoiding physical restraint.

But once an alien enters the country, the legal circumstance changes, for the Fifth Amendment's Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence in the United States is lawful, unlawful, temporary, or permanent. (emphasis supplied.)

In other words, the Due Process clause applies to citizens, aliens and undocumented residents , whether here lawfully or unlawfully- so long as they are physically present within the country.

The Uighurs are at Guantanamo. They have been determined not to be enemy combatants. They were sold by bounty hunters to the U.S. They want to stay in the United States. No other country will take them.

The Zadvydas opinon continues:

"Once removal of a deportable alien is no longer reasonably foreseeable, continued detention is no longer authorized."

In other words, the Uighurs should be granted asylum. It's bad enough that we detain those suspected of terrorism for six years without charges. But to detain the innocent? Bush has stooped to a new low with this case.

The appeals court ordered expedited briefing and will hold a hearing on November 24.

Related: A Day in the Life of a Uighur Detainee at Gitmo.