Military bases, an island in New York's East River and the small upstate city of Newburgh have all been floated as alternative sites for a trial guaranteed to command attention worldwide. Should any of those -- or some other, and as yet unidentified, wild-card location -- get the nod, it won't be the first time the U.S. has resorted to an unconventional venue for a high-profile trial.
One very notable modern example came 31 years ago, when the State Department tried a hijacking suspect in the middle of Germany in a little-known American court that had never before been used. It was called, officially, the United States Court for Berlin, and had existed on paper for nearly a quarter-century, having been created in 1955 in the aftermath of the post-World War II U.S. occupation of the divided German capital. But when the case got under way in 1979, the Berlin jurisdiction had no courtroom, no judge and no prosecutor.
Ed Andrieski, AP
Herbert J. Stern, here in 2007, presided over a trial in Berlin 31 years ago that could serve as a guide for bringing terrorism suspect Khalid Sheik Mohammed to justice.
It was left to the U.S. State Department to come up with a solution. After holding Hans Detlef Tiede (and the woman who accompanied him) without charges for three months, the government decided to have the U.S. Court for Berlin try its first case.
After the makeshift courtroom was constructed, the State Department flew in an American judge, Herbert J. Stern, who became the United States judge for Berlin, along with a team of American lawyers. U.S. legal procedures were used to conduct the trial, although the case was prosecuted under German laws. Occurring against the backdrop of the Cold War, the trial drew international headlines. (Stern turned the unprecedented case into a book, "Judgment in Berlin," which was later made into a 1988 movie of the same name, starring Martin Sheen and Sean Penn.)
There are many differences between the Berlin case and that of Mohammed, the most glaring of which is the nature of the crime itself. Tiede was accused of hijacking an airplane, but no one had been harmed, much less killed. And he was not labeled a war criminal or enemy combatant. By contrast, Mohammed and his four co-defendants, of course, are alleged to have orchestrated the most devastating attack ever on American soil, causing the deaths of more than 3,000 people.
Yet the constitutional questions that were crucial to the American trial in Berlin echo unmistakably in the debate about how Mohammed should be tried. Stern says in his book that the U.S. government initially insisted that American constitutional rights should not apply to Tiede, and suggested it would not go along if Stern ruled that Tiede should be allowed a trial with a jury of East German citizens. The State Department argued that because Berlin was an "occupied city" and the court was established "out of conquest," the U.S. could determine what rights to grant the defendant.
"This was a doctrine worthy of Adolf Hitler himself," Stern wrote in his book, recalling that his first reaction was to resign rather than preside over what he feared would be a sham trial. Ultimately, the judge chose to stay on the job, and, after forcing the American prosecutors to agree that they would abide by his decisions, he granted Tiede a jury trial. In the end, the defendant was convicted of a lesser charge. After Stern sentenced him to time already served, the State Department fired him from his post in Berlin and closed the court, its first (and only) case concluded. Stern returned to his position as a federal judge in New Jersey, retiring to private practice in 1987.
The Obama administration, supported by advocacy groups like the American Civil Liberties Union and Human Rights First, wants to try Mohammed in a federal civilian court, under standard U.S. judicial laws and procedures. But for its host city, the trial of the 9/11 conspirators will mean a security nightmare and high costs -- a big reason the prospective hosts have all balked.
Their concerns provide fodder for Republicans and the growing number of Democrats who argue that Mohammed should be treated not as a criminal but as an enemy combatant and, accordingly, should be tried by a military tribunal at Guantanamo Bay, Cuba, under the procedures put in place by Congress with the 2006 Military Commissions Act. But that brings a counterargument from civil libertarians, who say that the commissions violate international law and undermine American values of due process.
But what about a Berlin option? Could the government set up, say, the United States Court for Guantanamo Bay and try Mohammed in a civilian court in Cuba? It's not that simple, legal experts say.
First, unlike West Berlin during the Cold War, the U.S. does not "occupy" Guantanamo, so despite its military base there, it could not establish a court as it did after World War II in Germany. Second is the problem of jurisdiction. Most U.S. laws require that a defendant face a civilian criminal trial in the jurisdiction where the crime took place. In Mohammed's case, because the 9/11 attacks touched so many cities, American officials theoretically have several choices: New York as the site of the World Trade Center; northern Virginia as the location of the Pentagon; Shanksville, Pa., where Flight 93 went down; or even Boston, where the hijacked planes originated. But not Cuba.
Still, while the United States Court for Berlin might not serve as a model for the prosecution of Mohammed, there are lessons that can be drawn from it, legal scholars say. In an interview, Stern noted a key element of the Berlin case: although it was prosecuted in an "occupation court," it featured judges and attorneys from the judicial branch rather than military officers -- lending an added aura of impartiality.
"If you at least had these courts staffed by [civilian] judges, some of the disquieting on both sides of the debate might be ameliorated," Stern said. "That would seem to be as close to a middle ground as one could get."
The international legal director for Human Rights First, Gabor Rona, said that while the use of civilian judges and staff would be an improvement over the military tribunals that have prosecuted previous terrorist suspects, it would not be sufficient. "It might give it more credibility. It won't give it more legitimacy," Rona said.
ACLU staff attorney Ben Wizner is more dubious. "Color me deeply skeptical," he said. "There is nothing inadequate about military officers carrying out their orders. What is inadequate are the orders."
Benjamin Wittes, a senior fellow at the Brookings Institution, said that perhaps the key take-away from the Berlin court -- where U.S. officials constructed the courtroom out of an airport lounge -- was the value of thinking outside the box. In their quest to try Mohammed in a way that gets the jurisprudence, security and symbolism right, U.S. officials may need to do just that.
"You have a lot of flexibility," Wittes said. "If you want to think creatively, there's latitude to think creatively."
