On August 30, 1978 a Polish airliner was hijacked
and redirected to Tempelhof airport in West Berlin. Torn between a policy of supporting defection and a recently-signed anti-hijacking treaty, the West German government ceded jurisdiction over the defendants to the United States government, which was still technically an occupying power and had an interest in the case because of the US Air Force Base at Tempelhof. The result was the one and only decision rendered by the United States Court for Berlin, United States v. Tiede
From the beginning, Judge Herbert Jay Stern found himself fighting against the State Department
, which wanted to limit the defendants' constitutional rights and generally run the trial for itself. In the decision, Stern held that the US Constitution mandated the full panoply of constitutional rights for the defendant, including a jury trial, and he ordered that a jury pool of 500 be drawn from the United States sector of Berlin. He forcefully concluded his order with the note that the US occupation authorities must "state on the record that they will comply with, and implement the Court’s directive [or else] the charges lodged against these defendants will be dismissed."
In the end, the charges against the co-defendant, Tiede's girlfriend Ingrid Ruske, were dropped. In the first jury trial in Germany since 1924, Tiede himself was convicted only of taking a hostage and was sentenced to time served. Here, taken from Stern's book Judgment in Berlin
, is his account of the sentencing (as excerpted in Robert Cover's famous and excellent law review article, Violence and the Word
"Gentlemen [addressing the State Department and Justice Department lawyers], I will not give you this defendant. ... I have kept him in your custody now for nine months, nearly. ... You have persuaded me. I believe, now, that you recognize no limitations of due process. ...
I don't have to be a great prophet to understand that there is probably not a great future for the United States Court for Berlin here. [Stern had just been officially "ordered" not to proceed with a civil case brought against the United States in Stern's Court. The case was a last ditch attempt in a complicated proceeding in which the West Berlin government had acquired park land -- allegedly in violation of German law -- for construction of a housing complex for the United States Army Command in Berlin. The American occupation officials had refused to permit the German courts to decide the case as it affected the interests of the occupation authority. American Ambassador Walter Stoessel had officially written Stern on the day before the sentencing that "your appointment as a Judge of the United States Court for Berlin does not extend to this matter."]
Under those circumstances, who will be here to protect Tiede if I give him to you for four years? Viewing the Constitution as nonexistent, considering yourselves not restrained in any way, who will stand between you and him? What judge? What independent magistrate do you have here? What independent magistrate will you permit here?
When a judge sentences, he commits a defendant to the custody -- in the United States he says, 'I commit to the custody of the Attorney General of the United States' -- et cetera. Here I suppose he says, I commit to the custody of the Commandant, or the Secretary of State, or whatever ... I will not do it. Not under these circumstances. ...
I sentence this defendant to time served. You ... are a free man right now."