Here, in its entirely, is the 2001 AUMFAT:

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, Section 1 - Short Title

This joint resolution may be cited as the 'Authorization for Use of Military Force'. Section 2 - Authorization For Use of United States Armed Forces

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (b) War Powers Resolution Requirements- (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution. (2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes (sic) any requirement of the War Powers Resolution.

Speaker of the House of Representatives. Vice President of the United States and President of the Senate.

As I wrote in the first of my posts above:

As I noted:

Here is some of what the Bush Administration did with this grant of power: * established military commissions at Guantanamo Bay that it asserted were beyond Congressional control * attempted to [suspend] habeas corpus * justified rejecting the Geneva Conventions and putting the U.S. on record as de facto embracing torture * justified electronic surveillance without obtaining a warrant of from the FISC (FISA Court) as required by the Foreign Intelligence Surveillance Act (FISA) of 1978. That's right -- the amount of structural damage to Constitutional rule in those few words generated at least four separate constitutional crises. The supposed ambiguity in the bill lay in terms such as "necessary and appropriate force," or "determines," or "aided" -- actually, the story has never been that clear, or that consistent. But from some minimal ambiguity did the most critical Supreme Court cases of the early 21st century derive -- with up to four votes on the wrong side.

On the one hand, this seems to support Greenwald's general argument that one must be wary of laws in this area -- with which I agree. On the other hand, the Bush Administration lost those Supreme Court cases. They tried to expand the authority of the AUMFAT as much as possible and were denied on constitutional grounds. Congress cannot override the Constitution by statute, so this looks like Congress wants to do something unconstitutional. If so, the courts should, once again, eliminate it. They could do so with or without the NDAA; both would require overturning (or finessing) previous opinions. I don't like Sections 1021 and 1022 because they provide a sense of Congress's unhappiness with not being able to expand the law as suggested, but the notion that they provide some magic key that suddenly would allow Congress to do what it previously could not is misplaced.

In my 2007 post, I noted that the language of the AUMFAT was not restricted to use against groups that supported Al Qaeda and its efforts in Iraq at the time. Read it again: "such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States" and "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." In other words, this is a continuing battle in a continuing war, which new actors may come in and join even if they had nothing to do with the initial attack. It authorizes the President to use

all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

This is what Greenwald describes as "at least relative to this new bill, quite specific and narrow." Well, sure -- unless you focus on that word "organization." Given that Al Qaeda is such an organization, that the statute does not say "organizations consisting of only those people actively involved with them as of 9/11" and that other parts of federal law treat those who aid and abet Al Qaeda are themselves considered to be terrorists (and, arguably indistinct from it), and that the law focuses on preventing future acts of terrorism, the notion that the AUMFAT could not be used to the full extent of the President's constitutional authority as it stands is fanciful -- and uncharacteristically credulous of Greenwald. (Seriously, what defense does Greenwald imagine if, say, the Lord's Resistance Army someday decided to cooperate with Al Qaeda. "No, the AUMFAT can't be used against the LRA because it was not allied with Al Qaeda back in 2001"? Good luck with that!) The same, of course, goes for the Taliban, which also falls under the AUMFAT.

The status quo that the President can act to the full extent of his or her constitutionally appropriate power is not changed by the NDAA. The original AUMFAT was far more expansive than Greenwald admits, and the only thing that could -- and did hold the Bush Administration back was the Constitution itself, not the absence of some additional statutory authorization (which could easily have been obtained in those bad old days.)

So when Greenwald gets worried because the NDAA Sec. 1021 describes "covered person" as one

who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

my reaction is: dude, where have you been? Do you really think that defense counsel could argue successfully, right now, that persons who fall under this definition would not also fall under the 2011 AUMFAT's

those ... organizations ... he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons

if it was determined that the defendant was currently supporting Al Qaeda? Has this defense ever been raised successfully? (Seriously -- if it has, I'll reconsider this argument. I won't hold my breath to be contradicted, though.)

Does this mean that the President's authority is untrammeled? No it doesn't -- but the restrictions are those imposed by the Constitution as interpreted by the Supreme Court in that series of 5-4 cases from last decade.

I'd like to remind people that under the Constitution the President already has the power to suspend habeas corpus -- that is, to impose indefinite detention -- "when in cases of rebellion or invasion the public safety may require it." The big issues are therefore these:

(1) do the operations of Al Qaeda and the Taliban meet this definition and (2) does the term "indefinite" still comport with the Due Process clause in cases where the war is defined as being eternal?

My own answers are "probably not" -- I think that the term "require" has to have bite -- and "no, something has to give way for the Suspension Clause to have meaning." But those are Constitutional arguments that, again, will not be affected by the NDAA. Yes, "substantially supports" and "associated forces" within the NDAA are disturbingly vague terms -- but this is not the first time they have made it into the federal code. Already "substantial support" of an organization deemed to be terrorist (for example due to its own substantial support of another terrorist organization) can be used to define someone as a terrorist in numerous portions of the U.S. Code. This problem has existed for years. It's a fight worth having on our side, but this particular battle will not make the difference.

On the latter point, his Myth #1, Greenwald says:

It simply cannot be any clearer within the confines of the English language that this bill codifies the power of indefinite detention. It expressly empowers the President — with regard to anyone accused of the acts in section (b) – to detain them “without trial until the end of the hostilities.” That is the very definition of “indefinite detention,” and the statute could not be clearer that it vests this power. Anyone claiming this bill does not codify indefinite detention should be forced to explain how they can claim that in light of this crystal clear provision.

Yes, the provision codifies indefinite detention -- which was already implicit to the limits of the Constitution in the 2001 AUMF. That phrase "all necessary and appropriate force"? That encompasses /a whole lot of force. To the extent that this reiterates this explicitly, I don't like it, but it doesn't make much practical difference. Before this bill and after it, the limitation on Presidential power will be that inherent in the Due Process Clause, Eighth Amendment, and so on. The NDAA can't overrule the Constitution.

I've already addressed his Myth #2, that the NDAA doesn't expand the AUMFAT, at length above, so I won't belabor it further.

Myth #3 regards the possibility of this statute being used against American citizens. Greenwald is himself equivocal on the point, calling the text "muddled," and I will not get frantic when someone as disposed as he is to paint this bill in catastrophic terms can't go beyond equivocal. (I accept his rejection of the notion that the idea that it can't apply to American citizens is a "myth" -- but I need to point out that the Suspension Clause of the Constitution itself applies to American citizens. Again: the real issue is: "what constitutes 'rebellion or invasion'?" If someone in the U.S. is working with Al Qaeda, my guess is that the government can already make a good case that it's covered. However, with an American citizen, the Due Process rights that are already recognized in the 5-4 decisions of the Naughts would presumably be at their height.

I think that everyone understands that the government cannot simply arrest people willy-nilly accusing them to be associated with Al Qaeda and expect to keep them in jail indefinitely. The courts do still get to hear habeas corpus cases, even if only to determine whether they still, under the Suspension Clause, have the jurisdiction to hear them. In this case, deciding the jurisdictional question would address the substantive question as well: if constitutional concerns don't justify holding people indefinitely, then the court has jurisdiction to release them; if they don't, it doesn't.

Greenwald depicts this as the "Keystone XL" of battles over habeas corpus law. If it were, then the arguments that Obama must veto it, whatever the political consequences, would have force. But it really isn't that sort of signal and decisive battle. This is just another rotten polluting power plant in a series of rotten polluting power plants that already litter the federal code in many places where "terrorism" crops up. The damage that Greenwald fears was done long ago; the language of the 2001 was ambiguous enough to give a determined President pretty much whatever breadth of action that did not violate the Constitution itself. I'm surprised if he doesn't know it; I'm dismayed if he does know it and simply wants to induce his readers to think otherwise.

I want Obama to rein in the language, as much as possible, with an appropriate signing statement. I think that we should be pushing for that. But considering this a momentous damning stain on his record? It only looks that dark if, up until now, one has been wearing rose-colored glasses. I had not thought that Greenwald was part of that moony group, thinking that we were safe until now.

Meanwhile, let's not lose sight of the fact that Republicans are not only the main ones pushing for this supposed "Keystone XL"-level concession, but for a concession on the actual Keystone XL case. If their misbehavior leads to people punishing Obama, in the zero-sum game of control over political power, then they will have all the more motivation to keep on doing it. After all, it makes their victory more likely. Why should they stop?

There's only one way to stop the Republicans when they try -- with Democratic help or without it -- to do something like this. That is to make sure that their efforts blow up in their face, not in Obama's. We should pressure Obama to make the best decisions he can, but the level of attacks growing against him over this NDAA end up making the situation worse. Push instead for a signing statement that recognizes the dangers of overreach -- and rejects them.