Jonathan Hafetz directs litigation for the Liberty & National Security Project of the Brennan Center for Justice at NYU School of Law, and is the author of a forthcoming book on post-September 11 detention policy, to be published by NYU Press.
Since September 11, the president has consistently ignored the law in the name of national security. While courts have resisted his claims of unbridled executive power, Congress has largely stood on the sidelines. But that could change soon, with a major legislative fight taking shape on military trials and detentions. If Congress ends up blessing the executive's power-grab, it may prove itself to be the most dangerous branch, by giving the president what he has so far lacked -- the stamp of democratic approval.
Certainly nobody can dispute that the Supreme Court handed the president a significant defeat last month, invalidating his jerry-rigged system for trying suspected terrorists of war crimes at Guantanamo and rebuffing his claims of unbridled executive power. If the administration wants to conduct military trials, the Court ruled in Hamdan v. Rumsfeld, it must follow the time-tested procedures of the United States' own Uniform Code of Military Justice and obey the minimal safeguards mandated by the 1949 Geneva Conventions.