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The three national security cases handed down by the Supreme Court at the end of the term send a powerful and long-overdue message. Ever since 9/11, administration officials have insisted that the war against terrorism is fundamentally an executive matter. They advised other branches to defer to the superior and overriding judgment of the president. But the justices effectively told George W. Bush: “Not so fast. This Court is prepared to exert its independent powers to protect constitutional rights.” Unfortunately, on war power questions the record of the federal judiciary over the past half-century has more commonly been one of retreat and passivity. A striking exception is a case from 1979, which pitted a U.S. district judge against the combined talents of the White House and the Justice and State departments. It proved to be a strange and explosive match. A TOUCHY SITUATION The U.S. Court for Berlin, established in 1955, operated under the supervision of the U.S. ambassador to West Germany. It thus sat as an instrumentality of the president to carry out American foreign policy. It never had a case until Aug. 30, 1978, when two East Germans — Detlef Tiede and Ingrid Ruske — hijacked a Polish aircraft and forced it to land in West Berlin. Unwilling to get near the case, West German authorities offered to pay all the costs of the U.S. Court for Berlin if the Americans would take the touchy situation out of their hands. The State Department first asked Dudley Bonsal, a senior U.S. district judge, to promulgate rules of criminal procedure. With one exception, he adopted almost verbatim the Federal Rules of Criminal Procedure and the Federal Rules of Evidence. The exception eliminated jury trials. On Jan. 11, 1979, U.S. District Judge Herbert Stern of New Jersey replaced Bonsal. Defense counsel moved for a trial by jury. The prosecution objected that the proceedings were not governed by the U.S. Constitution “but by the requirements of foreign policy and that the Secretary of State, as interpreter of that policy, has determined that these defendants do not have the right to a jury trial.” Judge Stern knew that if he ruled for a jury trial, the State Department was in a position to refuse to provide one. So he gave the State Department a choice: either prepare for a jury trial or he would set Tiede and Ruske free. The department reluctantly complied. Unbeknownst to Stern, the call for a jury trial upset some delicate political agreements. A jury trial would require the participation of German citizens, exactly what the West German government did not want. Also, Russian authorities objected that relying on a jury of West Berliners would be tantamount to acquitting the two defendants. Still, Stern pressed ahead. Ingrid Ruske had been kept in custody without formal charge for two months, held incommunicado by order of an American general. The U.S. government released her on Nov. 3, 1978. Some weeks later, on the basis of information that U.S. authorities were able to obtain from her, she was rearrested and formally charged. Judge Stern ruled that her two-month detention violated the Fourth, Fifth, and Sixth amendments, and that the statements elicited from her after Nov. 3 could not be used in evidence because they had been unlawfully and unconstitutionally induced by an American colonel. With the case crumbling, the U.S. government agreed to drop the charges against her. The focus now fell on Tiede. DOES DUE PROCESS APPLY? The prosecution argued that the U.S. Constitution did not apply to the proceedings because Berlin was a territory governed by military conquest. Under that construct, everything concerning the conduct of an occupation represented a “political question” and was not subject to review by U.S. courts. Whatever rights were available to individuals in an occupation court depended entirely on the decisions of the secretary of state, who determined, as a matter of foreign policy, that the right to a jury trial was not available to defendants. In United States v. Tiede 86 F.R.D. 227 (1979), Judge Stern found these arguments “entirely without merit.” Relying on the Civil War case of Ex parte Milligan (1866), he said that executive officials, in time of war or peace, were subject to constitutional limitations when they exercised the powers of their office. The applicability of any provision of the Constitution would be decided “in the last instance by the judiciary, not by the Executive Branch.” Without constitutional limits, Stern wrote, no one in the American sector of Berlin would have any protection from the “untrammeled discretion” of occupation authorities. The secretary of state would have the power “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.” With those words, Stern anticipated precisely the kinds of issues that emerged after 9/11, when the Bush administration claimed exclusive authority over the treatment of detainees and enemy combatants. Judge Stern also made it clear that he had no intention of functioning as an employee of the executive branch, ready to do its bidding. Due process required that the U.S. government come before the U.S. Court for Berlin as a litigant and not as a commander. The questions before him, Stern noted, had nothing to do with the procedures used by a U.S. military tribunal trying a case in wartime or during the belligerent occupation of enemy territory before war terminates. The Tiede case did not involve spying or a violation of the laws of war. Stern placed Tiede and Ruske in the category of “friendly aliens” — not enemy nationals, enemy belligerents, or prisoners of war. Toward the end of his decision, Judge Stern reviewed the prosecution’s argument that the U.S. Court for Berlin “is a type of military commission and defendants tried by a military commission have no right to a jury trial.” The prosecution relied principally on Ex parte Quirin (1942), which involved Nazi saboteurs, and Madsen v. Kinsella (1952), which concerned a U.S. citizen convicted by a military commission in Germany of murdering her husband. Judge Stern pointed out that in Quirin the saboteurs were charged with an offense “against the law of war which the Constitution does not require to be tried by jury.” As for the Yvette Madsen case, Stern noted that the question of her right to a jury trial was never presented nor considered, she never claimed the right to a jury trial, and indeed she insisted on trial by a general court-martial, which does not provide for a jury trial. TRYING FOR JUSTICE Stern’s fascinating book, Judgment in Berlin (1984), describes what happened at Tiede’s trial. Over a two-week period, the jurors listened to opening statements, watched the questioning of witnesses, and heard closing arguments and the judge’s instructions of the law. They then had to decide whether Tiede’s justification for escape to the West outweighed the crime of hijacking. The jury acquitted Tiede on three counts, but found him guilty of taking a hostage (the stewardess). The penalty for that offense was a maximum of 15 years and a mandatory minimum of three. Taking into account the nine months that Tiede had been confined and his eligibility for parole, he would serve time for seven more months: from May 26, 1979, to Jan. 1, 1980. With the Tiede trial coming to a close, a group of West Berliners filed a civil case in Stern’s court unrelated to the hijacking. One day before Tiede’s sentencing, Stern received a letter from the U.S. ambassador, bluntly telling him that his appointment as a judge of the U.S. Court for Berlin did not extend to the civil suit. Stern bridled at this additional attempt by the State Department to direct his actions. He thought of the German judges who, 40 years before, had followed the orders of the Nazi regime. A lawyer from the Justice Department flew in from Washington, D.C., to tell Stern that he was not sitting as an Article III judge, and that he was being directed to rule in a certain manner to satisfy foreign policy considerations in the Tiede case. From the bench, Stern told the lawyer that he refused to be made subordinate to political authorities. By the time he was ready to sentence Tiede, Stern learned that the prosecutors had persuaded the German government to pass special legislation to assure that whatever he decided could be nullified administratively. Previously, they had tried to arrange a deal that would have imposed a minimum sentence if Tiede had agreed to forgo a jury trial, which is the procedure that Stern decided was a constitutional right. When that ploy fell through, the prosecutors entered into private negotiations to take from Stern any effective power or authority. In view of the government’s actions of bad faith, Stern had no confidence that he could sentence Tiede and entrust him to the custody of the government. So he sentenced Tiede to time served and told him he was a free man. As for the pending civil case, a lawyer from the Justice Department advised Stern that he could either dismiss the case, without indicating his reasons, or resign. Stern shot back: “Don’t come into my court and tell me what to do. And don’t come into my court and tell me to resign if I don’t like it.” On that resounding note, he adjourned the court. The following morning Judge Stern received a letter from the U.S. ambassador informing him that, with the conclusion of the Tiede case, his appointment to the U.S. Court for Berlin was terminated. Judge Stern was sent packing, but not before completing his seminar on judicial independence and sounding the alarm against power concentrated in the executive branch. Louis Fisher, senior specialist in separation of powers at the Congressional Research Service of the Library of Congress, is the author of Nazi Saboteurs on Trial: A Military Tribunal & American Law (2003) and Presidential War Power (2d ed. 2004). The views expressed here belong to him and not to the CRS or to the Library of Congress.

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