United States v. Tiede
January 7, 2011 3:08 PM   Subscribe

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 [pdf]):

"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."
posted by jedicus (13 comments total) 30 users marked this as a favorite
And if anyone is curious, according to Morgenpost, the male hijacker Hans-Detlev Tiede worked as a waiter in Berlin, the woman Ingrid Ruske works in healthcare and the little girl now all grown up works in at an engineering company. The Polish flight attendant Ewa Przybysz lives in New York:

"Hans-Detlev Tiede arbeitet in West-Berlin als Kellner und ist heute Frührentner. Ruske nimmt wieder ihren Mädchennamen an, schult um und ist heute als Heilpraktikerin tätig. Tochter Sabine arbeitet in einem Ingenieurbüro. Die polnische Stewardess Ewa Przybysz lebt in New York."
posted by VikingSword at 3:34 PM on January 7, 2011 [1 favorite]

Sean Penn & Martin Sheen starred in a movie about this called Judgement in Berlin, based on Stern's book. I haven't seen it.
posted by el io at 3:50 PM on January 7, 2011 [1 favorite]

The movie is available on Netflix Watch Instantly, for those what have it.
posted by jedicus at 3:52 PM on January 7, 2011 [2 favorites]

bye metafilter for now, logging into netflix to watch the Berlin movie.
posted by tustinrick at 4:09 PM on January 7, 2011

I have a conflict of interest here (I work for the Federal judiciary), but, damn, sometimes, my branch of the US government makes me so bloody proud!
posted by QIbHom at 4:29 PM on January 7, 2011

The prosecution argues that the Constitution does not apply and so the hijackers do not have the right to a jury trial.

Here is an excerpt from the Court's response that the US Constitution, and specifically a US court, does apply in US-occupied West Berlin, explaining why the opposite would be disastrous:

[If this were not the case,] [T]he American authorities, if the Secretary of State so decreed, would have the power, in time of peace and with respect to German and American citizens alike, to arrest any person without cause, to hold a person incommunicado, to deny an accused the benefit of counsel, to try a person summarily and to impose sentence—all as a part of the unreviewable exercise of foreign policy.
posted by zippy at 6:46 PM on January 7, 2011 [4 favorites]

Awesome post. I had no idea. Best post in a year.
posted by Ironmouth at 9:42 PM on January 7, 2011 [1 favorite]

Holy shit, I remember this! There was some brief excitement on the Hill before it was realized that it was a run-of-the-mill hijacking. Until it was (rather quickly) determined that it was not in our bailiwick, there was a major flurry of activity, with ELINT retaskings, etc being proposed.

This is the ramp where the airplane was parked. (Photo from about one month prior to the incident)
posted by pjern at 10:25 PM on January 7, 2011

Well, having watched the movie on Netflix, I always wondered what President Bartlett did before he was Governor of New Hampshire.
posted by pjern at 12:08 AM on January 8, 2011 [1 favorite]

At the beginning we reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government. It was recognized long before Paul successfully invoked his right as a Roman citizen to be tried in strict accordance with Roman law.

Oh how I wish this were still de facto the case.
posted by pjern at 1:37 AM on January 8, 2011 [6 favorites]

This is a great post, made all the better for leaving the contemporary resonances to the reader instead of hitting us over the head with them.

Viewing the Constitution as nonexistent, considering yourselves not restrained in any way, who will stand between you and him?

Who indeed?
posted by languagehat at 6:22 AM on January 8, 2011

What a crock. Rights and ideals are so last century, and so are the heroes that championed them.
posted by Goofyy at 6:47 AM on January 11, 2011

(would you like fries with that?)
posted by Goofyy at 6:47 AM on January 11, 2011

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