I re-read it before I replied, and I stand by my opposition to your take.
Your link is to the roll call listing for the TARP bill in 2008, btw.
On the odd chance that there is any 8A/B/C there, please provide a hint of where to look.
As to those clauses in the original EO, that would be this language:
Which is boilerplate and routine, and no automatic escape clause. OF COURSE it should be interpreted and implemented in a way consistent with applicable law-- that's part of the oath of office. OF COURSE he needs to get it funded through appropriations, or else he would be taking over the function of Congress, and acting against the Constitutional provision of Section 9-- 'No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.'Sec. 8. General Provisions.
(a) Nothing in this order shall prejudice the authority of the Secretary of Defense to determine the disposition of any detainees not covered by this order.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
And OF COURSE he won't allow the use of this attempted change of policy to pierce the veil of the sovereign immunity of the nation against claims from those parties.
None of the clauses, then, were obviously insurmountable ahead of time. Remember W also said Gitmo's holding prisons ought to be closed, as did many other Republicans. One would assume the more leftward Democrats in Congress would feel the same way on their own, AND if for no other reason, as they held majority control in both houses of Congress, follow their newly elected president's preferred policy and campaigned upon campaign promise.
I don't see it as Obama's perfidy and doublecross setting up failure ahead of time, but the Democratic Congress's, spooked by the NIMBY demogoguery.