The Obama Administration Fought to Preserve Indefinite Detention Powers

In September 2012, the Obama White House waged an aggressive legal battle to reinstate one of the most contentious provisions in modern American law — a clause that officials acknowledged could theoretically be wielded to arrest and hold U.S. citizens without end, even when their conduct fell squarely under First Amendment protections.

U.S. District Judge Katherine Forrest had issued a permanent injunction blocking enforcement of Section 1021 within the National Defense Authorization Act (NDAA), declaring it unconstitutional. The administration responded within hours, filing an appeal and simultaneously requesting that Forrest suspend her own ruling.

Federal Judge Found NDAA Section 1021 Violated Constitutional Rights

In her written decision, Judge Forrest noted that government lawyers offered only a narrow, hedged assurance regarding the plaintiffs’ activities. Officials indicated that those specific actions, taken independently and described accurately, would likely not trigger military detention under Section 1021.

However, the judge emphasized a critical gap: at no point did the government broadly concede that speech or conduct shielded by the First Amendment would be exempt from indefinite military custody under the provision.

The legal challenge originated in January 2012, spearheaded by journalist Christopher Hedges of The New York Times along with several other writers and reporters. Their central argument held that Section 1021 permitted the detention of citizens and lawful residents captured on American soil based merely on suspicion that they provided “substantial support” to parties engaged in hostilities against the United States.

The plaintiffs maintained that such language was dangerously ambiguous. Could a reporter who interviews a member of al-Qaida be accused of offering substantial support? The law failed to draw clear boundaries.

Constitutional Stakes of Wartime Detention Without Trial

Judge Forrest underscored the gravity of what was at stake, writing that indefinite military detention during a war on terrorism — one with no projected conclusion — represented the highest possible constitutional stakes. She determined that the specificity demanded by the Constitution was entirely missing from Section 1021.

Dan Johnson, representing People Against the NDAA, observed that the government’s near-instant appeal revealed much about official intentions. He pointed to President Obama’s signing statement, in which the president pledged not to use the detention authority against American citizens without probable cause. Johnson expressed skepticism, noting that verbal promises carry no guarantee of truthfulness.

Reporting at the time indicated the administration simultaneously sought a stay of the ruling, which had found the law in violation of the First, Fifth, and Fourteenth Amendments.

Government Lawyers Refused to Answer Key Questions About Detention Scope

Judge Forrest expressed notable frustration with the Department of Justice’s approach to the proceedings. When she pressed government attorneys to clarify whether specific journalism-related activities could expose the plaintiffs to indefinite military custody, they repeatedly declined to respond.

The judge wrote that the Constitution places firm limits on executive power, limits that remain in effect during both peacetime and wartime. She concluded that the NDAA provision unlawfully encroached on First Amendment freedoms and lacked the definitional precision required by due process standards.

In her ruling, Forrest explicitly rejected the government’s position that citizens could be subjected to open-ended military detention for conduct they had no reason to believe was prohibited — with their only recourse being a habeas corpus petition decided by a single judge under a preponderance-of-evidence standard rather than a jury trial. She wrote that such a framework effectively strips away multiple guaranteed constitutional rights.

States Moved to Block Federal Detention Authority

The Obama administration had previously characterized supporters of certain political positions — including pro-life advocacy, third-party presidential candidates, and Second Amendment rights — as fitting domestic terrorist profiles, raising further alarm about how broadly the detention power might be applied.

Despite the president’s written assurance upon signing the bill into law, opposition mounted at the state level. Virginia became the first state to enact legislation refusing cooperation with federal authorities acting under Section 1021. Several local jurisdictions followed, and legislators in Arizona, Rhode Island, Maryland, Oklahoma, Tennessee, and Washington introduced comparable measures.

Legal Scholars and Civil Liberties Groups Challenged NDAA Overreach

The lawsuit represented a broad coalition of plaintiffs including Christopher Hedges, Pentagon Papers whistleblower Daniel Ellsberg, attorney Jennifer Bolen, linguist and activist Noam Chomsky, journalist Alex O’Brien, Kai Warg All, Icelandic parliamentarian Brigitta Jonsdottir, and the organization U.S. Day of Rage. Many testified that the mere threat of indefinite military detention had already caused them to modify their professional activities.

Constitutional law scholar Herb Titus, working with the firm William J. Olson, P.C., filed an amicus brief on behalf of Virginia Delegate Bob Marshall and other parties. Titus argued that Judge Forrest’s preliminary injunction validated the constitutional framework behind Marshall’s state-level legislation, confirming that the federal statute provided insufficient constitutional guardrails for presidential discretion over indefinite detention decisions.

Titus further noted the judge’s observation that the law imposed no requirement that a person have any awareness that their conduct was prohibited before being detained. He characterized the administration’s refusal to answer judicial inquiries as reflecting institutional arrogance — a belief that the executive branch bore no obligation to justify its positions before a federal court.

Battle Over Presidential War Powers and the AUMF

The amicus brief was submitted on behalf of Delegate Marshall and a coalition that included the United States Justice Foundation, Downsize DC Foundation, Institute on the Constitution, Gun Owners of America, Western Center for Journalism, the Tenth Amendment Center, and Pastor Chuck Baldwin.

Marshall’s HB1160 had passed the Virginia House of Delegates by an overwhelming 87-7 margin and cleared the Virginia Senate 36-1. Following amendments recommended by Governor Bob McDonnell, the law was set to take effect without further legislative action. Marshall subsequently urged state legislators nationwide to adopt parallel protections.

In his communication to fellow lawmakers, Marshall noted that Virginia had taken a pioneering stand against federal overreach, refusing to assist authorities who might arrest and detain American citizens suspected of supporting terrorism without probable cause, without disclosure of charges, and without the procedural safeguards enshrined in the Bill of Rights.

The Japanese American Citizens League endorsed Marshall’s initiative, drawing a direct line to the wartime internment of tens of thousands of Japanese Americans — carried out solely on presidential authority without legislative backing.

Administration attorneys maintained that Section 1021 authorized detention without standard legal process only for individuals who “substantially supported” terrorist organizations like al-Qaida or their “associated forces.” The plaintiffs countered that neither term was defined anywhere in the statute, and that detainees could be held “without trial until the end of the hostilities.”

The government argued the NDAA merely codified existing authority under the 2001 Authorization for Use of Military Force, enacted in the aftermath of the September 11 attacks. The plaintiffs challenged this interpretation, asserting that neither the text of the AUMF nor any court precedent supported the claim that noncombatants could be subjected to military detention based on “substantial support.”

This article covers events from September 2012 regarding the legal battle over NDAA Section 1021. Originally reported by WND.