The Legitimacy of Military Tribunals

by Bernard Meltzer

by David P. Currie

by Jack Goldsmith

by Cass Sunstein

by Adrian Vermeule

Following the attacks of September 11, 2001, the US government announced its intention to establish military tribunals to try non-US citizens suspected of terrorist activity. In a panel discussion at the University of Chicago Law School, leading scholars of constitutional and international law addressed the history and legitimacy of these tribunals.

David Currie looks at military tribunals during the Civil War and World War II to ask whether such tribunals are constitutional. Jack Goldsmith focuses on the president's powers as commander-in-chief and the nature of war crimes. Anticipating the rules issued in March 2002 by the Defense Department, Cass Sunstein discusses guidelines for burden of proof, right to defense counsel, and other procedural matters. Finally, Adrian Vermeule takes issue with the response of many legal academics to the question of tribunals.

In another panel discussion, lawyers and legal scholars at the University of Chicago Law School explore ways to ensure that military tribunals respect civil liberties.

Bernard Meltzer introduces David Currie, Jack Goldsmith, Cass Sunstein, and Adrian Vermeule as they discuss the history and constitutionality of military tribunals.

Relevant links:

Military Tribunals Materials for the Jan. 17 Panel

ABOUT THE AUTHOR | Bernard Meltzer
Bernard Meltzer joined the Law School faculty in 1946. Immediately before that he had been an assistant trial counsel at the Nuremberg International War Trials.

From 1938 to 1940, Mr. Meltzer worked as special assistant to Jerome Frank, chairman of the Securities and Exchange Commission. He then practiced law in Chicago before returning to Washington as legal consultant to the National Defense Commission. From 1941 to 1943, he was special assistant to the assistant secretary of state, Dean Acheson, and acting chief of Foreign Funds Control Division. He served in the United States Navy from 1943 to 1946.

In recent years, Mr. Meltzer taught evidence and labor law. He has served as an arbitrator, a special master, a member of the Illinois Civil Service Commission, and consultant to the Department of Labor. He is a member of the American Academy of Arts and Sciences and the American Law Institute and an Emeritus Fellow of The College of Labor and Employment Lawyers.

David P. Currie
Following his graduation from law school, David Currie was law clerk first to Judge Henry J. Friendly and then to Justice Felix Frankfurter. He joined the University of Chicago Law School faculty in 1962 and in 1991 was named Edward H. Levi Distinguished Service Professor.

Mr. Currie has written three major casebooks: Cases and Materials on Federal Courts (1968, 1975, 1982, and 1990); Cases and Materials on Pollution (1975); and Cases and Materials on Conflict of Laws (with R. C. Cramton, 1968; with H. H. Kay, 1975, 1981 and 1987; with L. Kramer, 1993 and 2001). He is the author of numerous articles which have been published in legal periodicals as well as various books-including: The Constitution in the Supreme Court: the First Hundred Years (1985), The Second Century (1990), and The Constitution of the Federal Republic of Germany (1994)-and the treatise Air Pollution: Federal Law and Analysis (1982). His latest books, The Constitution in Congress: The Federalist Period and The Jeffersonians, appeared in 1997 and 2001.

Mr. Currie was the developments editor of the Harvard Law Review. In 1969-70 he served as a member of the Illinois Air Pollution Control Board. In 1970 he became Illinois coordinator of environmental quality and then chairman of the Illinois Pollution Control Board. He is a member of the Illinois bar. He was elected a Fellow of the American Academy of Arts and Sciences in 1985. He has taught at the Universities of Frankfurt, Hannover, Heidelberg, and Tubingen in Germany and the European University Institute in Florence.

Jack Goldsmith
Jack Goldsmith received his B.A. in philosophy summa cum laude from Washington & Lee University in 1984, a B.A. in philosophy, politics and economics with first class honors from Oxford University in 1986, a J.D. from Yale Law School in 1989, and a diploma in private international law from the Hague Academy of International Law in 1992. After law school he clerked for Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit, Justice Anthony M. Kennedy of the United States Supreme Court, and Judge George A. Aldrich of the Iran-U.S. Claims Tribunal. Before coming to the Law School, Mr. Goldsmith was an associate professor of law at the University of Virginia School of Law.

Mr. Goldsmith's chief interests include conflict of laws, public and private international law, civil procedure, and foreign affairs law.

Cass Sunstein
Cass Sunstein is the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago Law School and Department of Political Science. A past member of the President's Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters, he writes regularly for popular magazines and newspapers, including the New York Times Book Review, the New Republic and the American Prospect. He has also appeared on ABC Nightline, the NewsHour with Jim Lehrer, NBC Evening News, ABC World News Tonight, NPR Fresh Air and many other programs.

Sunstein has written extensively on constitutional law, the First Amendment and jurisprudence. He has testified before Congress on many occasions about free speech and other constitutional questions. He has advised many nations about law reform and constitution-making, including Poland, South Africa, Bosnia, China, Russia, Israel and Ukraine. A former law clerk for Justice Thurgood Marshall, he has worked for the Office of Legal Counsel in the United States Department of Justice and has won several awards and commendations from the American Bar Association.

He is the author of Democracy and the Problem of Free Speech (1993), which won the Goldsmith Prize from Harvard for the best book on free speech in that year. His many other books include The Partial Constitution (1993), After the Rights Revolution (1990), Free Markets and Social Justice (1997) and One Case at a Time: Judicial Minimalism on the Supreme Court (1999).

Adrian Vermeule
Adrian Vermeule graduated from Harvard College in 1990 with a B.A. summa cum laude, and was elected to Phi Beta Kappa. He then attended Harvard Law School, graduating in 1993 magna cum laude. After law school he clerked for Judge David B. Sentelle of the U.S. Court of Appeals for the District of Columbia and for Associate Justice Antonin Scalia of the U.S. Supreme Court. Before coming to the Law School, he did fellowships at the Georgetown University Law Center and the George Washington University Law School.

Mr. Vermeule's principal interests include legislation, constitutional law, administrative law, and federal jurisdiction and procedure.

COPYRIGHT | This material was taken from a panel discussion held at the University of Chicago Law School January 17, 2002. Copyright 2002 the University of Chicago.

(c) 2004 The University of Chicago :: Please direct questions or comments to