Bernard Meltzer

Nuremberg prosecutor
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The Independent Online

Bernard David Meltzer, legal scholar and lawyer: born Philadelphia 21 November 1914; Professor of Law, University of Chicago 1947-71, James Parker Hall Professor of Law 197180, Edward H. Levi Distinguished Service Professor 1980-85 (Emeritus); married 1947 Jean Sulzberger (one son, two daughters); died Chicago 4 January 2007.

Bernard Meltzer had a long, influential legal career at the centre of the action - in the US State Department in 1943 when the possibility of Holocaust rescue was debated, in San Francisco in 1945 at the drafting of the UN Charter, in Nuremberg as a prosecutor in the first international war crimes trial, and for almost 60 years at the University of Chicago as one of the United States' premier labour-law scholars. Had his advice been heeded in recent years, Meltzer might also have been applauded as a key adviser on successful US military tribunals for Guantanamo detainees.

Born in Philadelphia to a Jewish family of modest circumstances, he received both undergraduate (1935) and law (1937) degrees from the University of Chicago. A year of postgraduate study at Harvard brought him to the attention of Professor (soon Supreme Court Justice) Felix Frankfurter, talent-scout for President Franklin D. Roosevelt's New Deal agencies.

After Pearl Harbor, Meltzer's friend Donald Hiss brought him to the State Department to work on legal concerns about Lend-Lease and as aide to Assistant Secretary Dean Acheson. Only later was it learnt that Meltzer was also a key figure in the 1943 bureaucratic battles over whether to ransom as many as 70,000 Romanian Jews as urged by the so-called Riegner plan. Bucking the open anti-Semitism of many State Department officials, Meltzer, acting chief of its Foreign Funds desk, worked backstage with his counterpart at Secretary Henry Morgenthau's Treasury Department to authorise the release of funds. By the time the State Department finally relented, it was far too late.

In April 1945 a conference was held in San Francisco to negotiate a charter for the new United Nations. Selected through the intercession of Hiss, whose brother Alger was to head the Secretariat, Meltzer was named to Committee 2 of Commission II, with a mandate to define the political and security aspects of the General Assembly.

As the only lawyer on the committee, Meltzer's work was chiefly to draft provisions for the General Assembly, at the same time as the major allies, adamant about their Security Council prerogatives, reduced the role of the General Assembly. The Soviets appeared frightened to compromise, and a Czech delegate privately told Meltzer that his nation felt bound to agree with everything the Soviets proposed, right or wrong.

While still in San Francisco, Meltzer was recruited for the Nuremberg war crimes trials by the New Dealer Frank Shea, whom the US chief prosecutor, Supreme Court Justice Robert Jackson, had assigned to lead the "economic case" examining Nazi plunder, use of slave labour, and war preparation.

Working first in Washington and London, Meltzer arrived in early autumn 1945 in Nuremberg to find chaos. The staff had little direction, and Shea, Murray Gurfein (later judge in the Vietnam "Pentagon Papers" case) and many others were soon eased out or resigned in frustration. Meltzer, who did not read German, was given barely a week to organise the evidence about concentration camps. With Sidney Jacoby and Dan Margolies as aides, he managed to organise evidence, even discovering the Mauthausen camp Todesbucher, books listing hundreds of victims, each with heart disease fraudulently given as the cause of death.

Meltzer foresaw difficulties with the major defendant he had been assigned, Hjalmar Schacht, minister of economics and head of the Reichsbank. Meltzer told his superiors he was eager to argue the case but that they might prefer a senior lawyer, lest the press blame an acquittal on Jackson for "sending a boy to do a man's job". Meltzer was promptly replaced by Brady Bryson, even younger. It is no criticism of Bryson to note that Schacht was acquitted of all charges.

On 11 January 1946, Meltzer presented the evidence against Walther Funk, Schacht's successor at the ministry of economics and Reichsbank, for his role in planning for aggressive war; Meltzer's evidence of Funk's involvement in genocide was presented later by French and Soviet prosecutors. By now the American case had taken six weeks, and the judges were irritable. The presiding judge, Sir Geoffrey Lawrence, gave Meltzer a difficult time but his presentation was efficient.

Afterwards Meltzer helped prepare for the cross-examinations. But he continued to be frustrated by the management style of Jackson and his aide Tom Dodd. Meltzer's extensive work for Marshal Hermann Goering's cross-examination was never even seen by Jackson, with famously regrettable results. Meltzer remained in Nuremberg through the conclusion of the Schacht and Funk cases, but had no trouble declining an offer from Telford Taylor to stay on for a second round of Nuremberg trials.

Instead, Meltzer accepted an offer to teach at Chicago. Already the law school was strongly committed to quantitative and behavioural analyses. Immediately after the Second World War it recruited Meltzer, Walter Blum, Harry Kalven and Meltzer's friend and soon brother-in-law Edward Levi, who became Dean, Provost, President - the first Jew to lead a major non-denominational university - and President Gerald Ford's Attorney General. They were critical of each other and themselves and fiercely loyal to Chicago.

Among Meltzer's closest friends were Milton Friedman, George Stigler, Ronald Coase - three Nobel laureates - and Aaron Director, all with law-school appointments or deep interest in regulatory issues. Meltzer's own work was not empirical, though he originated Harry Kalven and Hans Zeisel's pioneering Jury Project. He also wrote about the right against self-incrimination, leading to representation of Great Lakes seamen facing McCarthyism.

Meltzer's scholarship soon focused on labour law. The 1950s were the zenith of the American labour movement, when over one-third of workers belonged to unions instead of under one-tenth today, and the heyday also of academic labour law. In a field often divided into "union guys" and "management guys", Meltzer was a "neutral principals" scholar.

Like Willard Wirtz (later Secretary of Labor for Presidents John F. Kennedy and Lyndon Johnson) and Archibald Cox (later the Watergate prosecutor fired by Richard Nixon), Meltzer tried to resolve cases according to agreed-upon national policy without regard to pro- or anti-union bias. His inclination was to let parties to collective bargaining relationships work out their own rules with little government involvement; as one friend observed, he thought there was too much law in industrial relations even though he revelled in his technical mastery of the rules.

Meltzer's neutrality meant he was often named to federal, state and local commissions. He was chief of the Allen-Bradley arbitration (1968), the first test of Affirmative Action, and served, proudly, as a salary arbitrator for Major League Baseball in 1981. President Nixon wanted to name him chair of the National Labor Relations Board. Meltzer took great pride in the response from a top labour lobbyist at the AFL-CIO, "Bernie, you're a son of a bitch but you're our guy for the job" - but still declined the job.

Indeed, Chicago had too great a hold on Meltzer. Formal retirement in 1985 meant little change in his routine. He still wrote, mentored everybody from graduate students to deans, hosted Hyde Park dinner parties with brilliant guests and conversation, consulted with law firms, and played tennis. One professor recalled that "he wasn't just my favourite colleague, he was everybody's favourite colleague". But, from the earliest proposals in the 1990s for trials for former Yugoslavia, Meltzer was increasingly called on to reflect about Nuremberg and future trials.

Meltzer had never been one of those Nuremberg alumni who viewed war-crimes trials as a panacea. Rather, he wondered whether trials were always politically wise. As early as 1947, in his first academic publication, he defended Nuremberg against the argument that it was retroactive or "victors' justice", but allowed that Nuremberg had the advantage of monstrous defendants and abundant evidence.

In 1971 he said of the Calley case involving My Lai atrocities that "we may, in the end, have to resign ourselves to the fact that the greater questions are seldom answered by the law". The same scepticism coloured his view of other trial proposals. He opposed proceedings against Nazis living in America, doubted the utility of charging Kurt Waldheim, and generally felt that war-crimes trials, when appropriate, sometimes should be national rather than international or in military rather than civilian courts.

Shortly after 11 September 2001, he co-authored an essay, with a younger colleague who soon took a policy job with the Bush administration, opposing an international trial for Osama bin Laden. In 2002, Meltzer was one of a number of philosophically diverse Wise Men informally asked to advise Defense Secretary Donald Rumsfeld on the planned military tribunals for detainees at Guantanamo.

Meltzer was recruited, it was said, at the behest of Rumsfeld, who knew of his Nuremberg experience. Yet insiders agree that Meltzer insisted that military tribunals include basic due-process norms, including the right to counsel and presumption of innocence. The advisers' recommendations appear initially to have had some impact, but then the administration turned elsewhere, with costs for all to see.

Jonathan Bush

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