A month before he was inaugurated, one of President Obama's most influential advisers on national security matters told me that his White House would find a way to reverse the harm done by George W Bush to the United States's moral authority. He would do this, the adviser said, without compromising his ability to actively pursue terrorist threats. Central to this ambition was the immediate closure of the prison at Guantánamo Bay. The world hates us, he reasoned, because of what Guantánamo represents: torture, Abu Ghraib, unnecessary wars, detention without trial and unchecked imperialist instincts.
He would ban torture, I was told, and would not codify indefinite detention into law. Not ever. He would not let Congress dictate the terms by which Guantánamo would be closed. He would expend his store of political capital to fight alongside Attorney General Eric Holder, who was spending 16-hour days devising ways to repatriate most of the detainees and bring others into the US for trial.
I asked this adviser why he was so sure Obama would do this, because I supposed it would be difficult. I don't recall the precise quote, but it went something along the lines of: "His legacy – he does not want to be remembered for that."
But five years later, with little more than two years left in his final term, the chances that the prison will be closed on Obama's watch are increasingly small. History will record that Congress beat the White House, thoroughly, into submission.
Most interestingly, Obama has done nothing to ensure that the next president, perhaps even Mitt Romney – who, in a fit of geographically impossible hubris, promised during his failed 2012 campaign to double its size – couldn't expand, or even create a new Guantánamo, somewhere overseas. A number of current prisoners will probably die in custody. And President Romney, or Clinton, or Paul will have a strong precedent to detain (without trial) many others, if they decide they must do so to protect the country.
Perhaps the President and his advisers were naïve – perhaps they underestimated Congress's desire to claw back leverage on national security issues. Maybe the economic crisis cluttered the President's mind space and prevented deep thinking. Or it could be that Obama simply caved to the national security establishment.
I think differently. I think the President came to realise, quite early on, that closing Guantánamo and rejecting indefinite detention were promises he had to break in order to give the rest of his counter-terrorism policy room to breathe.
Running counter-factuals is always a risky business, but I think Obama could have indeed closed Guantánamo if he really wanted to. How? By declaring that the hostilities referenced by the various post 9/11 authorisations for the use of military force (AUMFs) had ended. That would have allowed him to do whatever he wanted with the prisoners there – even bring them into the United States. He would then, of course, have had to negotiate with Congress for a new counter-terrorism authorisation – a new AUMF – which might have seemed a very dicey proposition. But he had the choice. Instead, he chose to keep the 2001 (Afghanistan) and 2002 (Iraq) AUMFs alive and in force, and with them, their institutions, of which Guantánamo is the most infamous.
In order to wage his massive drone war, to expand his surveillance powers, to capture Al Qaeda associates away from the battlefields of Iraq and Afghanistan, Obama had to throw the closure of Guantánamo, its detainees and all it represented under the bus.
And if, because of prevailing political realities, he could not quickly close the detention centre, then Obama would (and did) work to remove its stain, its ability to be a demagogue's cudgel, indirectly, by showing the world that America could conduct itself thoughtfully, and not instinctively, in the meantime. This is a projection, of course. Obama himself believes in thoughtful, considered deliberation, and he contrasts his method to the arrogant, visceral, reactive decision-making he believes the world associates with President Bush.
It would not be that simple. Even though the administration continues to argue today that the President tried hard to close Guantánamo and should get credit for his middle-of-the-highway approach, I think Obama long ago disabused himself of the fiction that there was an easy fix to these problems. And so I think he chose the path of less resistance, and willingly so.
The effect of this, as former Bush administration Defense Department official Matthew Waxman has noticed, is that Obama essentially institutionalised military commissions for suspected terrorists. This was achieved by making them "a more legitimate instrument," by adding (some) protections for prisoners, by changing the way that the prisoners' case evidence was reviewed, and by allowing them non-military lawyers. Obama also responded constructively to embedded suggestions from the judicial branch about just how a President could legally apply these rules "beyond just the current armed conflict with Al Qaeda to future unprivileged belligerents as well". These include a specific grant of authority by Congress and the chance for long-term detainees to petition for status reviews in the future.
But in rejecting a purely "law enforcement" or purely "military" approach to counter-terrorism, Obama has confounded our mental maps, usually grounded in our faith in one of those poles, about what the legal dimension to dealing with counter-terrorism should look and feel like.
That means, in practice, that while a Guantánamo prisoner is formally granted the right to present himself in front of a judge, he might not be able to do so with the benefit of unfettered counsel from a lawyer, whose conversations would of course be monitored for intelligence value because the belligerent is still considered a belligerent.
Obama's policy doesn't please anyone except for the well-meaning conservative lawyers who used President Bush's second term to begin to clean up his first. But it does serve the President's interests, which is why I think history should accord Obama some agency here. He could have worked harder to close Guantánamo. He chose not to, for a reason.
Marc Ambinder is an author and journalist based in Los Angeles. He is a former White House correspondent for National Journal, politics editor for the Atlantic, and chief political consultant to CBS News. He is working on a book about nuclear brinkmanship in the Cold War. Follow him on Twitter.