Muscatine

This might be instructive:  (please read the whole thing, especially the underlined section at the end):

Do Noncitizens Have Constitutional Rights?

From SLATE (a leftist online magazine owned by the Washington Post): 

 Chris SuellentropPosted Thursday, Sept. 27, 2001, at 5:47 PM ET

It wasn't purchased by the Washington Post until Dec.21, 2004

'This has never been used or tested in the courts so we don't know if it will pass constitutional muster.   It also applies only to deportation.   If criminal charges are filed, the protections in the first paragraph apply.'

You are wrong:

I think I am not wrong.   This has never been used as of Jan. 26, 2009 and I don't recall Obama using it.

The federal courts, in 2008, have ruled that the use of military tribunals in the case of the suspected terrorists now confined at Gitmo are entirely constitutional and permitted.  The decision not to do this was a political decision, not a legal decision.

On December 13, 2006, Salim Ahmed Hamdan tried to challenge the MCA's declination of habeas corpus to "alien unlawful enemy combatants" in the United States District Court for the District of Columbia. Judge James Robertson, who ruled in favor of Hamdan in the Hamdan v. Rumsfeld case, refused to rule in favor of Hamdan in this case regarding habeas corpus, writing:

"The Constitution does not provide alien enemy combatants detained at Guantanamo Bay with the constitutional right to file a petition for habeas corpus in our civilian courts, and thus Congress may regulate those combatants' access to the courts".^[44]

In April 2007, the Supreme Court declined to hear two cases challenging the MCA: Boumediene v. Bush and Al Odah v. United States On June 29, 2007, the court reversed that decision, releasing an order that expressed their intent to hear the challenge. The two cases have been consolidated into one.^[45] Oral arguments were heard on December 5, 2007. The decision, extending habeas corpus rights to alien unlawful enemy combatants but allowing the commissions to continue to prosecute war crimes, was handed down on June 12, 2008.^[46][47]

Even though detainees now have the right to challenge the government's basis of their detention, that does not guarantee release as evidenced by the Dec 14th, 2009 ruling of U.S. District Judge Thomas F. Hogan who upheld continued detention of Musa'ab Al-Madhwani in Guantanamo Bay, Cuba even though the court determined that he was not a continuing threat, the government met its burden of proving he was a member of al-Qaeda.^[48]"