I Don't Think this is Right

New York Times editorial page editor Andy Rosenthal, in his Loyal Opposition blog, opens a post this morning on the NDAA by saying,

When President Obama came into office in 2009 he promised to shut down the Guantanamo Bay detention camp and end the extra-judicial system that his predecessor had created to imprison terrorist suspects without trial, often without even filing charges. He has broken that promise (emphasis added).

I am not 100 percent certain that Rosenthal's statement is incorrect, but I'm pretty sure it is. It's been a while since I went through Obama's campaign rhetoric closely, but I'm fairly confident he always stopped short of promising to end non-criminal detention entirely. It is true that he promised to close Guantanamo, and that he expressed confidence in the ability of the criminal justice system to handle many cases. It is also true that he promised to restore habeas (which the Supreme Court took care of for him). But as far as I can remember, he actually never promised to use the criminal justice system exclusively. Indeed, his executive order on Guantanamo's closure made a point of leaving open the possibility of long-term detention for some detainees there. Although the order was worded in a cagey fashion, section 4 (c)(4) of the order allowed for "other dispositions" (other, that is, than freedom or trial), which it defined as "lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals." As I wrote at the time,

From much of the early press coverage, a reasonable reader might conclude that Obama had not merely ordered the camp closed within a year, but had ordered all of its 242 detainees either transferred to foreign custody, released, or prosecuted within that time. The New York Times, for example, wrote this morning that the order—then still a draft—“require[s] an immediate review of the . . . detainees still held at the naval base in Guantánamo Bay, Cuba, to determine if they should be transferred, released or prosecuted.” The Washington Post reported that “Officials will review the cases of the . . . prisoners who remain . . . to decide who can be released and who can be put on trial.” While literally true, this reporting rather overstates the severity of the choice Obama’s poses for each detainee. Obama’s order is not, in fact, a blunt instrument; in fact, it actually doesn’t do all that much. It is careful to preserve all options for each detainee. It does not require any detainee’s release or transfer. It does not require any detainee’s prosecution. It does not preclude the eventual use of military commissions or some other alternative trial venue. And, critically, it does not preclude the continued non-criminal detention of certain—perhaps many—current Guantánamo detainees.

I would be curious if any Lawfare reader can cite any promise that Obama made at any time that could reasonably be read to justify Rosenthal's statement.