"Agreeing with conclusions reached years earlier by the Bush administration: As many as 90 detainees cannot be charged or released."

After promising to close Guantanamo, Obama is facing reality:

On the day Obama took office, 242 men were imprisoned at Guantanamo. In his May speech, the president outlined five strategies the administration would use to deal with them: criminal trials, revamped military tribunals, transfers to other countries, releases and continued detention.

Since the inauguration, 11 detainees have been released or transferred, one prisoner committed suicide, and one was moved to New York to face terrorism charges in federal court.

Administration officials said the cases of about half of the remaining 229 detainees have been reviewed for prosecution or release. Two officials involved in a Justice Department review of possible prosecutions said the administration is strongly considering criminal charges in federal court for Khalid Sheik Mohammed and three other detainees accused of involvement in the Sept. 11, 2001, attacks.

The other half of the cases, the officials said, present the greatest difficulty because these detainees cannot be prosecuted in federal court or military commissions. In many cases the evidence against them is classified, has been provided by foreign intelligence services or has been tainted by the Bush administration's use of harsh interrogation techniques.

Be like Bush. But blame Bush. The magic formula.

Or is it necessary to add the showy fillip of closing Guantanamo?

Under one White House draft that was being discussed this month, according to administration officials, detainees would be imprisoned at a military facility on U.S. soil, but their ongoing detention would be subject to annual presidential review. U.S. citizens would not be held in the system....

But some senior Democrats see long-term detention as tantamount to reestablishing the Guantanamo system on U.S. soil. "I think this could be a very big mistake, because of how such a system could be perceived throughout the world," Sen. Russell Feingold (D-Wis.) told Holder.

See? It's not even different enough to count for anything. And — presto — the foundation is laid for keeping Guantanamo open.

(Remember, I made a bet with Emily Bazelon, and I'm going to win.)