The Constitutional Validity of Military Commissions

The Green Bag, Vol. 5, Spring 2002

18 Pages Posted: 28 Jan 2002

See all articles by Curtis Bradley

Curtis Bradley

Duke University School of Law

Jack Landman Goldsmith

Harvard Law School


This essay defends the constitutional validity of the Military Order issued by President Bush on November 13, 2001, which authorizes the establishment of military commissions to try certain non-citizens involved in terrorism. The essay begins by describing the ways in which military commissions have been used throughout U.S. history. It then explains why President Bush had statutory authority to issue the Military Order, and why he probably also had independent constitutional authority to do so as Commander in Chief. Although the Order was not preceded by a congressional declaration of war, the essay argues that such a declaration is not constitutionally required in order for the President to exercise his constitutional or statutory war powers, including his power to establish military commissions. Finally, the essay argues that the September 11 terrorist attacks, to which the Order was a response, violate the laws of war and therefore fall within the jurisdiction of military commissions.

Keywords: military commissions, military tribunals, commander in chief, declaration of war, terrorism, laws of war, armed conflict

Suggested Citation

Bradley, Curtis and Goldsmith, Jack Landman, The Constitutional Validity of Military Commissions. The Green Bag, Vol. 5, Spring 2002, Available at SSRN: or

Curtis Bradley (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Jack Landman Goldsmith

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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