Spencer Ackerman asks a question:
Oh, So That’s the Fifth Category of Detentions: As Marc [Ambinder] writes, that sounds a lot like the administration will just simply hold them in legal limbo, as per the so-called “Fifth Category” of detentions outlined by President Obama in his May speech at the National Archives. Adam Serwer wrote a great piece on how that category of detainees has roiled the civil liberties community. Now, the Obama administration has subsequently stated that it’s not going to seek any additional authority from Congress for such preventive detention. But that doesn’t solve the problem of what becomes of those detainees. Will the courts ultimately decide that the administration doesn’t, in fact, have the power to hold them without charge? And where will they be held if Guantanamo is to close? After all, if they’re moved into the United States, the courts will almost certainly exercise jurisdiction over them...
The clean and normal thing to do would be for President Obama to use the Constitutional procedure for dealing with things like this: the president should ask congress to use its Art. I §9 ¶2 power to suspend, for these 75 detainees, for the years 2010-2011, the privilege of the writ of habeas corpus (including other restrictions on extra-legal process detainment), on the grounds that September 11, 2001 opened a case of "rebellion or invasion" in which "the public safety... require[s suspension.]"
We have Constitutional procedures, set out by the founders, for dealing with situations like this. Why aren't we using them?