AL-TOUNSI
AL-TOUNSI
A NOVEL
ANTON PIATIGORSKY
“Who, then, in law, is my neighbor?”
—Lord Atkin, Donoghue v. Stevenson
CONTENTS
PART 1: CERTIORARI
1 THE CAT
2 WHAT WOULD BRANDEIS DO?
3 ORIGINAL SIN
4 AD OUT
PART 2: ARGUMENT
5 THE UNITARY EXECUTIVE
6 A PERSON’S A PERSON NO MATTER HOW SMALL
7 SOVEREIGNTY
PART 3: OPINION OF THE COURT
8 ODD PAIRINGS
9 INTERMISSION
10 TO KEEP AND BEAR ARMS
AFTERWORD
ACKNOWLEDGMENTS
PART 1
CERTIORARI
1
THE CAT
The ancient buzzer sounded in Justice Rodney Sykes’s chamber. Although afternoon conference would begin in ten minutes, he was still not fully prepared. He slipped his bony fingers beneath his half-moon glasses and pressed the soft flesh around his eyes, but the kneading did little to dispel the ache in his temples, and nothing to alleviate his overwhelming fatigue. He hadn’t been able to work effectively all morning.
The problem wasn’t his environment. His chambers were impeccable and quiet, arranged to his exact specifications. His secretaries had angled his venetian blinds downward, blocking the view and allowing for dimness, not darkness. They had closed his door and—he presumed—hung his Do Not Disturb sign on the knob. They had neatly stacked his cert petitions—the most urgent pieces of business for this Friday—in a high pile on his otherwise empty desk.
Justice Sykes had been disquieted by images flashing through his mind. He was distracted, of all the ridiculous things, by thoughts of his sick cat.
He stood, tightened his tie, and skimmed the final dozen cert briefs. He snatched his suit jacket off the chair and headed for the door. After forcing a smile for his two secretaries in the front room of his chambers, Rodney stepped into the marbled corridor, where he almost collided with Chief Justice Eberly.
“Whoa there, sorry!” Charles Eberly patted Rodney on the back.
“No, no. I’m at fault.”
Rodney rubbed his heavy eyes as the two strode in tandem toward the Conference Room. Tall, bald and plagued by athletic injuries, Justice Eberly limped slightly. He had a constant pain in his left knee.
“Something the matter, Rodney? You seem a tad—I don’t know.”
“I’m perfectly fine, Charles, thank you.”
“All right, then. We missed you up in the Dining Room.”
The best thing about Charles Eberly, an old, conservative jurist with a gravelly voice, dry sense of humor and unpretentious directness—all products of his isolated childhood in the red desert of rural Utah—was that he would never ask too many intrusive personal questions. The two justices walked down the marbled hallway, the red-and-gold carpeting muting the sound of their steps.
Justices Sarah Kolmann and Talos Katsakis were already in the Conference Room. The colleagues greeted each other with sharp nods. Justice Kolmann, her eyes magnified by large glasses, smiled politely at Charles, but grinned at Rodney with genuine affection.
“Do you have plans for the weekend, Sarah?” Rodney asked her.
“I certainly do. My daughter is coming down from Boston with my grandson. Already seven years old!”
“My, my, how quickly they grow.”
Sarah Kolmann steered their conversation to Massenet’s Manon, currently in production at the Kennedy Center—and what did Rodney think of it?, and could the best of Massenet ever compare to worst of Verdi?—when Justices Quinn and Rosen entered the Conference Room together, Killian Quinn in the midst of some operatic performance of his own. He spread his arms wide, his face glowing red with excitement.
“Aaaaaamerica,” he cried, “are you ready to rrrrrrrrrumble?”
Gideon Rosen shook his head. It was rather impossible to tell if he was annoyed or amused by his outrageous colleague’s antics. Perhaps a bit of both. Justice Kolmann chuckled and covered her big grin with a veiny hand.
“My youngest is into all this wrestling business.” Killian’s voice was always higher and thinner than what Rodney expected to come out of such a large man. “I mean, my Lord, these steroid types with all their screaming and neon tights.”
“Now, that’s fine, Killian.” Justice Rosen’s Chicagoan accent switched his O into an A. “I won’t complain about it as long as you don’t pile drive me.”
“How about a flying clothesline?”
“Pile-drive?” Justice Kolmann smiled, unrestrained.
“That’s when one of the big guys drops the other on his head,” explained Justice Rosen.
“Come on, Gideon, I’m not going to pile-drive you!” Killian, laughing, waddled his corpulent body from side to side with some urgency, as if his feet might fall asleep. “We’re tag team, tag team! In spite of our jurisprudential differences. We work together for the greater good. We need a couple of those Mexican masks—you know. We could keep them in the closet along with our robes!”
Justice Joanna Bryce, the newest member of the Court, snuck into the Conference Room under the cover of the chatter. She stood beside Justices Eberly and Katsakis, hands clasped before her, her turtleneck pulled up to her chin. She was frowning sternly, watching Killian laugh and pump the air with his meaty fist. When his mouth parted and his gold fillings flashed, Bryce curled her lip in disgust.
Rodney turned away before Joanna noticed him staring. This was the all-too-typical arrogance of Justice Bryce, a woman who believed herself correct in all circumstances, who assumed that because she found Killian’s colorful antics distasteful they should be condemned or dismissed. Rodney understood her longing for tradition, as he too preferred more restrained comportment, but never in a million years would he dream of being so bold as to stand in condemnation. How could Rodney or Joanna or anyone else dictate the moods and manners of their colleagues? The Court comprised nine equals. He was neither Justice Quinn’s father nor his boss.
Justice Bernhard Davidson pushed open the Conference Room door and hobbled through the threshold. He was supporting some of his weight with his cane, while his other arm rested in the patient hand of his escort, Justice Elyse Van Cleve. Justice Davidson wore a tweed jacket with elbow patches and a small bowtie. His clean white hair was parted to the side, combed smooth against his scalp, oiled with pomade. Justice Van Cleve wore pearls and a navy suit, her brilliant gray hair a marked contrast to the dark fabric. Although Van Cleve was in her mid-70s, her tall, athletic body looked like a paragon of strength when juxtaposed to aged Davidson, who was so stooped that he only come up to Van Cleve’s shoulder. She helped the old man sit in his chair at the head of the rectangular table, opposite the Chief Justice—the position reserved for the senior most member of the Court.
“Thank you, Elyse.” Bernhard Davidson patted her hand and rested his cane against the table.
“All here.” Chief Justice Eberly nodded at Justice Bryce. “Joanna, please, the door.”
Eight jurists gathered around Davidson’s chair and shook each other’s hands, one by one. As Rodney’s palm met the firm grip of each colleague, he felt the odd and unnamable distress of his morning fade away. How thankful he was that Chief Justice Melvin Fuller had long ago initiated this ritual of the 36 separate handshakes, that subsequent justices had continued this 19th-century practice into the present era. Indeed, it unified their nine disparate minds into one single team, and encouraged them to forget their small domestic trials. Court rituals were such a comfort, such a balm.
Rodney took his assigned seat on the far side of the table, facing the door and the inlaid bookcases stocked with m
atching tan bindings: the complete and ever-expanding US Reports. Chief Justice Eberly studied the 12 certiorari petitions he had placed on the discussion list, as well as the six additional cases penciled in by other justices. “May we vote to deny cert to the cases which didn’t make our list?”
The justices murmured their agreement—and so ended the prospects for dozens of cases to reach the United States Supreme Court.
The Chief announced the remaining cases one by one, offering his concise summaries of their histories and legal questions. This usual routine, with the justices voting in sequence either to grant or deny the petitions, was disrupted only once in the first seven cases, when Sarah Kolmann shook her head in disagreement of a denied petition.
“Something to say, Sarah?” Charles retreated into the dour tone he reserved for tangential conversations with potential to bog down their smooth progress.
“No. I disagree, but obviously I’ve been overruled.”
They arrived at case 06-1172, Majid Al-Tounsi, et al., Petitioners, v. Mark L. Shaw, et al., Respondents. Charles Eberly summarized the case quickly and announced that they would vote in the usual fashion, from senior justice to junior, beginning with himself. “I vote to deny.” He tapped the discussion list, not making eye contact with any of his colleagues. “Bernhard?”
“Also deny.”
Gideon Rosen slapped his palms against the hard wood of the conference table, jolting everyone. He leaned forward, mouth agape, and glared in fury at Justice Davidson. “What in God’s name did you just say, Bernhard?”
“Gideon!” scolded the Chief. “We are voting on this case.”
Gideon pressed his palm against his eyes and shook his head. “I cannot believe what I have just heard.” He crossed his arms and shot another fiery glance at Bernhard.
Charles proceeded, ignoring Justice Rosen. “That’s two votes for denial. Killian?”
Justice Quinn seemed to be having a hard time containing his pleasure. Smirking, raising his bushy eyebrows and rubbing his wide hands along his big belly, he managed to eke out the word deny without actually laughing.
“Elyse?”
“I vote to grant.”
“Talos?”
“Deny.”
“Goddamn it.” Gideon rubbed his brow as if he were in pain. Indeed, the cert petition for this sensational case would almost certainly be denied.
“Rodney?”
“I also vote to deny.”
Rodney marked a check beside Al-Tounsi on his discuss list, as he always did after voting. He did not find this to be a difficult case. When he read the complete cert petition in chambers, he thought, contrary to his clerk’s memorandum, that the main question Al-Tounsi asked—whether or not the foreign citizen enemy combatants imprisoned in the U.S. Naval Base in Subic Bay, Philippines, had a constitutional right to the writ of habeas corpus—was premature. The Military Commissions Act of 2006 had not only stripped their cases of federal court jurisdiction, but it had also established alternate procedures for processing the detainees. It did not matter that there was a reversal from the district court ruling, or a 2–1 circuit court split. Nor did it matter that the media adored the story of those high-profile detainees, with articles appearing in the papers almost daily, and TV pundits chattering incessantly about them on talk shows. The Military Commissions Act was the law, passed by Congress, signed by President Shaw. Furthermore, it was a new law, meaning that its procedures had yet to be put into full effect. It had only been a year since it had passed. The government was correct that the Court should only take a case like Al-Tounsi after those new procedures had been fully implemented, when it would be possible to assess with some neutrality their constitutionality. Until that future date, ruling on Al-Tounsi was presumptuous and political, and, moreover, it did not fit within the framework of Justice Sykes’s steady principle: to defer to the other branches of government whenever possible.
The remaining three justices voted as expected: Rosen and Kolmann to grant, Bryce to deny. As if to underscore the case’s import, Chief Justice Eberly removed his glasses as he announced their verdict. “The certiorari petition for case number 06-1172, Al-Tounsi v. Shaw, is hereby denied by a vote of 3–6. Next on the list we have—”
“No!” Justice Rosen pursed his lips and blinked rapidly. “This can’t be. I have something else to say.”
“One comment, Gideon. Please keep it brief.”
Justice Rosen paused, tapping his fingers on the desk as he prepared his best argument. “We need to consider this. Do we really want to tell Congress and the President that we won’t even review their decision when they suspend habeas corpus?”
“Christ, Gideon, it’s not suspended. Stop, already, with the dramatics. The MCA has installed a clear remedy in its place.”
“No, Killian, we have to at least review the case in order to see if there is an adequate remedy.”
“It’s too early!”
“A constitutional question regarding Article I can never be too early.”
“All right.” The Chief Justice held up his hands. “Enough.”
“I find it hard to believe that we’d actively shirk—”
“Gideon, Gideon, please.” Justice Davidson’s shaky voice rolled out from the far end of the table. His trembling fingers fiddled with his tight bowtie. “Let’s just hold on a moment here. You know I personally dislike the Military Commissions Act as much as you do. But we have an obligation to at least give these new procedures the benefit of the doubt until we have reason to question them. It’s too early. Killian’s quite right.”
As the others nodded, and Eberly moved on, Gideon studied Justice Davidson with a sly squint. Rodney understood his suspicion. It seemed to Rodney there was something disingenuous about Davidson’s denial of Al-Tounsi. It lacked consistency with the senior jurist’s well-known liberal principles. Those detainees in the Subic Bay Naval Base had exhausted all options but for this final appeal to the U.S. Supreme Court. They had been imprisoned indefinitely, without charge, protected only by the MCA’s new procedures, which most liberal federal judges considered highly dubious. From Justice Davidson’s perspective, those prisoners were powerless, left without a voice. So what was he up to? Davidson was the fourth vote. All he had to do was say yes to granting certiorari and the Court would be forced to hear Al-Tounsi. He didn’t have to explain himself, or even convince another colleague.
As Charles Eberly summarized the next case on their list, a peculiar and insistent question entered Rodney’s mind: What if his cat were the petitioner in Al-Tounsi, fighting for a writ of habeas corpus?
Rodney had awoken that morning to find Stone, his gray tabby with a notched ear, lying prostrate by his bed, panting like a dog. His eyes were glassy. His swollen tongue protruded from his mouth and bubbles oozed onto the floor. His limp head was settled into a pool of frothy white vomit. It was a gory tableau, and it had shocked Rodney. All morning, no matter how hard Rodney had tried, or how much work he had needed to do, he simply could not erase that image from his mind. And here he was now, thinking about habeas corpus as it pertained to his cat.
Like a detainee in Subic Bay, Stone too was powerless. The cat had lived for years trapped in the Justice’s two-bedroom apartment, his movements curtailed, his closest contact with any natural element being his perch on the high-backed sofa beside the rarely opened window, and even then he was barred from the outside world by a thick mesh screen. He had no means of escape, no recourse to any court.
Of course, the absurdities of Rodney’s comparison were obvious. Cats were not persons in any law, nor could they be active participants in legal proceedings. Even the term prisoner was ridiculous. Cats were creatures of a different consciousness, to be owned and used, subjected to human needs, and at best afforded minimal protections by, in this instance, a combination of District statute and the federal Animal Welfare Act. As well it should be. Granting cats a constitutional right to habeas corpus was pure folly.
“Rodney. Your v
ote?”
The Chief Justice was glaring at him. Rodney glanced at his notes for the next case on their list. “Deny.”
He closed his eyes. There, again, was Stone, a rude interruption to his concentration, a defiant apparition, now lying in a cage in the dingy back room of Dr. Vry’s Animal Care, with its barred windows and stacked cardboard boxes, heaving for breath, unable to move his head, his fur wet and matted.
Rodney opened his eyes. A framed painting of Chief Justice John Marshall was mounted to the wall above the ebony fireplace behind Charles Eberly. For 16 years Rodney had been comforted by that expressionless, bust portrait of the Court’s greatest justice, and he had long imagined that Marshall’s steely image watched over the justices in the Conference Room, demanding their best behavior. Marshall was a model for almost all of them, their north star. But today the portrait’s fierce eyes burrowed holes into Rodney. Would John Marshall have denied certiorari for the petitioners of Al-Tounsi? Would John Marshall have tolerated any formal, legalist arguments in this case of imprisoned detainees? Rodney turned away from the painting. Best to keep things in perspective. Although Chief Justice Marshall was an exemplary leader of the Court for 35 years, he was also a committed slave owner. That was certainly a more serious moral lapse than denying the appeals of a few indefinitely imprisoned enemy combatants. The real John Marshall, Rodney decided, as he crossed his arms, would have only stared intently at Rodney while trying to ascertain his price in the local slave market.
When Rodney arrived at his chambers after conference, his secretary handed him a message from Kim Vry, requesting that he please call her office at his earliest convenience. He closed the door and dialed her number.
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