On December 31, 2011 and after signing the National Defense Authorization Act for Fiscal Year 2012 into law, President Obama issued a statement on it addressing “certain provisions that regulate the detention, interrogation, and prosecution of terrorism suspects”. In the statement Obama maintains that “the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF”. The statement also maintains that the “Administration will not authorize the indefinite military detention without trial of American citizens”, and that it “will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law”. Referring to the applicability of civilian versus military detention, the statement argued that “the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost.”
On February 28, 2012, the Obama Administration announced that it would waive the requirement for military detention in “any case in which officials [believe] that placing a detainee in military custody could impede counterterrorism cooperation with the detainee’s home government or interfere with efforts to secure the person’s cooperation or confession”. Application of military custody to any suspect is determined by a national security team including the attorney general, the secretaries of state, defense and homeland security, the chairman of the Joint Chiefs of Staff, and the director of national intelligence.
On September 12, 2012, U.S. District Judge Katherine B. Forrest issued a permanent injunction against the indefinite detention provisions of the NDAA (section 1021(b)(2)) on the grounds of unconstitutionality; this injunction was appealed the following day by the Obama Administration.