Tuesday, November 26, 2002

LONG ARM OF THE LAW: I have a new second-favorite obscure location for a federal court: the federal magistrate court for Valley Forge, PA.

Favorite obscure location for a United States federal court? That's easy. The U.S. District Court for the District of Berlin, convened to hear one case for one defendant in 1979. (PDF required to read.)

Hans Tiede hijacked a Polish civilian plane to the Tempelhof Air Force Base (U.S.) in West Berlin to seek freedom for his family from the Iron Curtain. West German law encouraged such escapes, while international treaties on air piracy (signed by the U.S.) required the government not to condone such acts. So what did the West Germans do? Turn him over to us.

It's a fascinating opinion about the limits of jurisdiction and the scope of the rights granted criminal defendants under the Constitution with significant contemporary relevance. The prosecution argued that the Constitution only applied to this case insofar as the Secretary of State deemed it appropriate, as Berlin was militarily-conquered territory, and that therefore the criminal defendant was not entitled to a trial by jury. As the prosecutors argued in their brief:

The conduct of occupation is fundamentally different from the exercise of civil government in the United States. The actions of an occupying power, from necessity, may be inconsistent with the wishes or attitudes of the occupied population. In short, the assumptions and values which underlie the great common law conception of trial by jury do not necessarily have a place in the conduct of an occupation. Whether it does in a particular situation is quintessentially a political question, to be determined by the officers responsible for the United States conduct of this occupation, and not by this Court.

(Sound familiar?) Following a lengthy discussion of the the wartime authority of courts and the nature of the jury trial, Judge Stern held that a jury trial was required here:

[P]eople have been deceived before in their assessment of the intentions of their own leaders and their own government; and those who have left the untrammeled, unchecked power in the hands of their leaders have not had a happy experience. It is a first principle of American life -- not only life at home but life abroad -- that everything American public officials do is goberned by, measured against, and must be authorized by the United States Constitution.

As the Supreme Court made clear in Ex parte Milligan, supra, the Constitution is a living document to be applied under changing circumstances, in changing conditions and even in different places. The Court finds devoid of merit the suggestion that the Prosecution has no constitutional obligations or that this Court lacks the competence to inquire into those obligations. The Constitution of the United States manifestly applies to these proceedings.

Second, the Court rejects the Prosecution's contention that, even if the Constitution applies to these proceedings, it is the State Department rather than the Court which interprets the Constitution.

It is clear, because the Constitution applies to these proceedings, that the defendants have the right to due process of law. Due process requires that if the United States convenes this Court, it must come before the Court as a litigant and not as a commander.The Secretary of State, in establishing a court, appointing a judge, and then electing to appear before it as a litigant, delegates his powers to the Court. Thereafter, the United States may, and indeed it should, press strongly for its views. It may argue them and, if it is so authorized, may appeal from an adverse decision. It may not, however, compel that its views be victorious. Thus, the responsibility falls solely upon the Court to declare the requirements of the Constitution in this proceeding.

It is a great, great opinion, and well worth your time. Judge Stern published a book regarding his experience with the case that's well worth finding, if you can.

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