US Judgment in Berlin

On Aug. 30, 1978 Hans Detlef Tiede boarded flight LOT 165 in the Polish city Gdansk and used a toy pistol to divert the East Berlin-bound jet to the American sector on the other side of the Wall. The passenger plane made a safe landing at the US military air base Tempelhof, and nine other East Germans aboard took the chance of defecting to Allied occupied West Berlin, including Tiede's accomplice Ingrid Ruske and her young daughter.

Only Tiede and Ruske could not walk free in Berlin's American zone, since the act of hijacking a civilian airliner violated international conventions long negotiated between NATO and the Warsaw Pact. For the first and only time, a US court of justice was convened in Berlin to prosecute the case. Herbert J. Stern, the American judge who tried the case in a makeshift courthouse in the departure lounge of Tempelhof airport, is currently a partner at his own law firm in New Jersey and author of Judgment in Berlin.

DW-WORLD.DE: Two East Germans want to escape a repressive regime. They hijack a plane, which lands safely at one airport instead of another in the same city. No one was killed or injured. Several passengers even walked free and those that remained on LOT 165 were a bit inconvenienced. So what's the problem here?

Herbert Stern: All the countries involved -- the US, Poland, West Germany and East Germany were signatories to an international convention on air piracy. This meant that whoever diverted a plane had to be either prosecuted (at the hijacked destination) or sent back to be prosecuted. These accords had been instigated by the US, which was worried about air traffic being diverted to Cuba in those days.

The problem for the West Germans was that they regarded all Germans as citizens of the Federal Republic. Nobody had ever been prosecuted for escaping East Germany ever since the Wall went up in 1961, even if they had roughed up or shot a guard.

The West Germans had never ever sent anyone back. It would have also been politically suicidal for them to prosecute the case (against their own people), so how do they get out of the mess?

Well, Berlin was occupied territory. The West Berliners were sovereign in the sense that they had a mayor, city government, parliament, judges and all that, but the Allied occupation never ended (until unification), because the West German government didn't want it to end. If the Allies had pulled out, it would have been the end of freedom for the 2 million people living in the Western sector.

The West Germans were obliged by this air piracy agreement to prosecute the case, but couldn't prosecute fellow Germans from the East, so they were happy to let the Americans take over.

They insisted that the US take over, but there were no US courts in Berlin. The West Germans begged the US to convene a tribunal for the first time and agreed to pay all courtroom expenses -- the prosecutors, defense attorneys, the judge.

The US State Department was keen on prosecuting the case...

They were absolutely committed to prosecute, make no mistake about it. The State Department appointed me as US judge for Berlin. Even the West German government wanted Tiede and Ruske convicted and so did the Poles, because at that time it was viewed as an important case in protecting all civil aviation against air piracy. So while it was possible to be sympathetic to the individual defendants, the integrity of air travel and air safety became foremost in the minds of the West. In East Germany, they only wanted these defectors to be punished.

You were at loggerheads with the US State Department prosecutors, who got more than they bargained for when they appointed you as judge...

State took the position that they had the right to define what rights the defendants had, because Tiede and Ruske were neither US citizens nor on US territory, but stood before an occupational court, a conquerer's court so to speak, the kind of court they have now instituted at Guantanamo, where the same issues (concerning defendants' rights) have percolated up.

The State Department took the position that I was not an independent judge as I would have been in the US. I was their employee and I had to follow their instructions. They were willing to grant some constitutional rights to the defendants, but not all, and they would pick which ones.

So the US prosecutors didn't want to grant the East German defendants the constitutional right to a jury trial...

They didn't want that, since they thought a jury comprised of West Berliners meant sure acquittal and would be a sham proceeding that would make the Poles, the Soviets and the East Germans very unhappy.

What they said was that the defendants had no rights at all except what the State Department was willing to give them, and that is not a right.

I told them that nobody in an American court, no matter where it sits, comes before a court with no rights... that is just absurd. I told them if they didn't bring in a jury and give these defendants their rights that I would throw the whole case out and turn them free. That's why we had a good old fashioned jury trial in the US sector of Berlin.

You seem very sympathetic to the defendants here, don't you?

I tell you, once I ruled that the American prosecutors had to bring German jurors into the room as the US constitution requires, they tried to force the defendants to plead guilty. The case against the woman, Ruske, was later dismissed by the prosecutors for lack of evidence. Then I found out in Tiede's case they said: "If you plead guilty, we will guarantee you a certain sentence," but he refused the deal, so we had a jury trial.

In which the jury found Tiede innocent on all counts except one -- guilty of taking a hostage, so you sentenced him to nine months, which wound up being the time he had already served in detention.

I'll tell you why I handed down that sentence. When the jury convicted this fellow (on that one count), it became clear to me I was dealing with a situation in which the occupying power simply thought they had the right to do anything to anybody, so I wasn't going to deliver the defendant to their hands.

To answer your earlier question ... of course I felt sympathetic to the situation of defectors from East Berlin. But at the end of day, it's not for me to decide questions of guilt or innocence. That's why I brought in a community of West Berliners to make those decisions.

I wasn't in that courtroom doing the pitching or batting, but I certainly was going to call a ball a strike. I just did my job (as defender of the US Constitution), that's all.