It is my great pleasure to write this foreword. This symposium on Wartime Security and Constitutional Liberty was organized to honor Justice Robert H. Jackson, who graduated from Albany Law School in 1912. The very successful live symposium, at which the papers were presented, was part of the 2004 International Law Weekend of the American Branch of the International Law Association, which was held on October 15, 2004 in New York City.
The symposium was one in a series of events organized at Albany Law School in 2004 to mark Justice Jackson's fiftieth memorial anniversary. Albany Law School's Robert H. Jackson and International Programs Committee organized this symposium on wartime security and constitutional liberty. I would like to thank the Albany Law Review, particularly Allen J. Vickey, Editor-in-Chief, and Noelle Lagueux-Alvarez, Executive Editor for Symposia, for their invaluable assistance in putting the papers for this symposium together for publication. I would also like to thank Professor Patricia Reyhan, my co-chair, in putting together this symposium. Without her vision, this symposium would not have been possible. For the generous funding and support of this event, Dean Thomas Guernsey deserves gratitude as well.
Among his many achievements, Justice Jackson served as the Chief U.S. Prosecutor at Nuremberg, as a Supreme Court Justice and as the U.S. Attorney General. Wartime security and constitutional liberty was a central theme of his career at Nuremberg and as an Associate Justice. His contribution at Nuremberg was instrumental in shaping the law of individual responsibility for war crimes and for crimes against humanity. This legacy continues into the twenty-first century as an influence on the creation of the International Criminal Court.
Justice Jackson's Supreme Court opinions continue to be influential. For example, his opinion in Johnson v. Eisentrager (1) has framed discussions on the scope of the President's authority to hold aliens and citizens captured abroad in military custody and their rights of access to U.S. courts. His dissent in Korematsu v. United States also demonstrates the challenges courts have faced recently. (2) In this dissent, Justice Jackson declined to uphold the constitutionality of the exclusion and detention of citizens of Japanese ancestry. Yet as he later explained, this dissent would have allowed military authorities by their own force and authority at a time and place found proper for military control to enforce this exclusion and detention measure without judicial intervention. (3)
In the 1952 Youngstown Sheet & Tube Co. v. Sawyer (4) decision, Justice Jackson's concurring opinion held that a Presidential order authorizing the seizure of the steel industry during the Korean War was unconstitutional. In this much remembered concurring opinion, he introduced a three-tiered framework to test the power and authority of the President. Professor Cleveland illuminatingly discusses Justice Jackson's Youngstown concurrence in her essay in this symposium. Finally, fifty years ago in 1954, Justice Jackson left his sick-bed where he was recovering from a heart attack to cast his vote to make the decision in Brown v. Board of Education (5) unanimous.
To reflect on the important questions of constitutional liberty and wartime security, we were delighted to have a very distinguished group of speakers. They were: Ambassador Pierre-Richard Prosper of the Office of War Crimes Issues at the State Department. His office advises the Secretary of State on the disposition of the cases involving the Guantanamo Bay detainees; Professor Erwin Chemerinsky, the Alston & Bird Professor of Law at the Duke University School of Law and formerly the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California Law School. His scholarly reputation and litigation experience on the intersection of constitutional liberty and wartime security have brought Professor Chemerinsky both national and international recognition; Sarah H. …