“Lionel, what have you heard about Al-Tounsi?”
Mahoney displayed his victorious smile, full of white teeth. “You know that Saghir case down in D.C. Circuit? Seems last week the government called to testify the rear admiral in charge over at Subic Bay. Guy by the name of Ryan Bonairre.”
“I know. I read his testimony.”
“Yeah, well, so did this army lawyer named Michael Inge—a lieutenant colonel in the reserve, who served on one of Subic’s Combatant Status Review Tribunals for two long years. Seems after reading Bonairre’s bullshit testimony in Saghir, Colonel Inge got enraged by all the lies. He contacted one of the pro bonos representing Al-Tounsi over at Cardom Green and confessed his contrary opinion of the CSRTs. He said they assign detainees Enemy Combatant status like clockwork, indiscriminate, and they’re total shams. Apparently this Inge guy complained about all this to Bonairre himself down at Subic, but, as you can imagine, the rear admiral disagreed with him rather vehemently on that point. So Colonel Inge made a sworn declaration against the CSRTs and Bonairre’s testimony yesterday afternoon in Cardom Green’s D.C. office.”
“He’ll get prosecuted.”
“No chance.” The senator smiled at Gideon’s political naïvety.
“Absolutely he will. Defense Department memos stipulate all former CSRT members must stay one hundred percent confidential about every aspect of the procedure.”
“That’s just their horseshit scare tactic. They won’t follow through. Can you imagine the publicity of a prosecution? Please. Besides, Colonel Inge is willing to take that risk. My contact at Cardom says their lawyers are presently dotting their I’s and crossing their T’s and getting ready to include Inge’s damning declaration in an upcoming reply brief for this Court. They’re going to push you guys to rehear Al-Tounsi.”
“When?”
“Probably end of the month.”
Gideon couldn’t help but laugh. He even slapped his thigh.
“I thought you’d like that.” Senator Mahoney released a little sigh of satisfaction. He stood, stretched his back and mumbled something about sailing on the Chesapeake over the weekend, about how the weather was plain perfect this time of year—just plain perfect—and then started saying that Gideon and Victoria really needed to get themselves out to the eastern shore at least once that summer, that there would be a whole bushel of very trayf, Old Bay–spiced Maryland blue crabs steaming in Lionel’s kitchen, waiting to have their shells malleted open and their meat and guts devoured by the esteemed Associate Justice and his delightful wife. Gideon agreed. Spiced crabs sounded great. He and Victoria would love to visit Lionel on the shore and sail the bay in his 22-footer.
Gideon accompanied the senator to the door. “Can’t say I don’t feed you the good gossip, can you, Gid?” With his elbow, Lionel mischievously nudged the Justice in the ribs.
Gideon shrugged, thinking yes, actually, it was great gossip, though he didn’t want to admit it. His long friendship with the senior senator from Illinois, dating back to high school, too often felt like the relationship between a legal guardian and a young child. Lionel’s rapacious ego was like a kid’s; he always wanted more and more attention. Right now he wanted Gideon to say something along the lines of I’d be screwed without you, Lionel.
“Ah, come on, Justice!” Mahoney tried to pinch a bit of fat on Gideon’s waist. “You’re happier with me than that.”
“Don’t pinch me,” warned Gideon.
Mahoney laughed, and let him go. “You haven’t got any meat on your damn bones to pinch.”
“And you’ve got too much.”
The senator wrapped his arm around Gideon’s shoulder, as only a childhood friend could. “Now admit I gave you some pretty good information. It’s precious stuff. Admit I delivered!”
“It’s a fine delivery, yes. Reminds me of the old Lane Tech game. Another one of your perfect passes.”
Mahoney threw back his head and laughed. He released the Justice, patted him once on his shoulder. “Exactly! Lane Tech! I was pretty good back in the day, wasn’t I? Not too bad a quarterback, all in all.”
“You were all right.”
“You know, we ought to get the old Nic Senn junior varsity team back together one of these days, don’t you think? A little scrimmage? A little reunion?”
“Too many bad knees between us. Some of us are not so fit for running.”
“Nah, we’d do great. I could still pull off a pass action, fall back, find you out on the deep post. Bang, drop the ball right on your fingertips. As long as you’re steady and not weaving all over the goddamn field every which way. What do you say, Gid?”
“My football days are behind me.”
“Too bad.” Mahoney straightened his trousers, opened the door and slipped out of chambers.
“Great to see you, Lionel.”
“You’re welcome for the news!” Mahoney spoke over his shoulder, just loudly enough for Gideon’s secretaries to hear. The Justice nodded and closed his door after him.
Gideon lingered before the framed and signed photograph of smiling Louis Brandeis positioned on the bookshelf next to his pictures of Victoria and the twins. He had been given that portrait by one of the famed Justice’s grandchildren in an honorary degree ceremony at Brandeis University and had long ago placed it on a prominent shelf, so Brandeis could offer his encouraging winks and smiles whenever Gideon needed them. Justice Rosen studied Brandeis’s thin and mousy—but happy and vibrant—face.
“Hot damn, Louis. I think Al-Tounsi is going to be the one.”
Gideon drafted Deniston for the rest of that morning, albeit ineffectively. His words blurred together, his phrases were difficult to decipher, and when he focused long enough to string together sentences, his opinion’s small-minded reasoning and painfully dry language embarrassed him. It was a clunky piece of work. Worse: uninspired. The Justice stared at his humming monitor and felt his will to write waning. His lean torso slouched in the high-backed chair. He couldn’t even muster the strength to sit up straight. Deniston would never amount to more than a procedural footnote in civil law.
There was nothing he could do about it. It was impossible in this day and age to write a revolutionary opinion. The vast majority of cases that came before him were, like Deniston, obscure questions of law in need of clarification, mundane disputes on technical issues that had to be resolved by the trained monkeys on the federal appellate bench in order for the day-to-day functioning of U.S. governance to proceed without blockage. Do the Florida Bar rules that prohibit direct mail solicitation of accident victims violate the free speech of personal injury attorneys? Are communications between a client and his or her lawyer protected under the attorney–client confidentiality doctrine, beyond the Fifth Amendment’s protections against self-incrimination, even after the client’s death? How could he establish expansive new guidelines for individual rights or propose innovative readings of existing law when these were the actual day-to-day problems confronting a modern Supreme Court justice? There was no room in his day for the stirring stuff of Brown v. Board of Education or Griswold v. Connecticut.
There were only five or six cases a year that held even marginal significance for the larger story of what it meant to be an American in the 21st century, and then obstacles stood in the way of transforming those special cases into any kind of meaningful contribution. Wasn’t he wise to reduce the scope of his rulings to their narrowest readings whenever possible? Didn’t that mean he ought to opt out of big and bold decisions on procedural grounds most of the time—as he was doing here, in Deniston—and also diminish the implications of broader rulings on merits in other cases? Good jurisprudence meant curbing radical results. Moreover, he needed four other votes to win any case. He had to be reasonable to get those votes. He had to be prudent. Hell, Gideon wanted to be prudent: it was an essential quality of being a great justice.
The bottom line, though, was that in all his years of prudence Gideon had authored a string of opinions j
ust like Deniston: meticulous, technical, boring, and insignificant.
Justice Rosen locked his sinewy hands behind his chair, leaned back and stretched his shoulders. Metal sprinkler pipes twisted across the yellowing plaster of his ceiling, with institutional red glass bulb sprinkler heads protruding from it like snakes’ tiny tongues. In truth, this quasi-sacred “chamber” of his was nothing more than a dressed up federal office. Desk, bookshelf, pictures. Dented metal filing cabinets, boxy telephones. A banal government building in Washington, D.C., decked out with fancy marble surfaces and brass features—lipstick on a pig. And Gideon Rosen wasn’t anything, really, but an overintellectualized version of the government bureaucrat.
He switched off his computer and flicked on the electric kettle beside his printer. A cup of tea might help him. Too often hopelessness and despair followed Mahoney’s visits, a product of their shared history and sadomasochistic adolescent relationship: all those JV football games, Saturday night outings with Lionel sweet-talking the convenience-store merchants of North Chicago into selling them six-packs, and their so-called double-dates, arranged by Lionel as contests of virility that Gideon could never win. Lionel used to enjoy setting up Gideon with the homelier friend of whichever striking cheerleader he was pursuing at the time. On the night Gideon kissed and fondled Cynthia Gamlich’s breasts in the back row of Senn’s darkened stadium bleachers—and believed himself the greatest teenage lover to ever have lived—Mr. Future Illinois Senator one-upped him yet again by screwing the incomparable Amy Alben with characteristic gusto down on the 50-yard line. Oh, life was just high school repeated ad nauseam, even if you made it to the upper echelons of the U.S. government. Gideon was so gangly and shy and Jewish-looking back then, while Mahoney looked like some sun-bronzed, Christian surfer god peeled off of a California billboard.
The Justice sipped his Earl Grey on the sofa. One person’s success should have nothing to do with another’s failure, especially when the goal is creating good law, or adjudicating wisely. Mahoney’s many accomplishments as a lion of the Senate did not mean that Gideon was rendered insignificant as a Supreme Court justice.
Especially with Al-Tounsi rising. That case was a rare opportunity, a possible milestone in legal history, with the potential to set precedent for all future law on presidential power and habeas corpus. It was the kind of case he longed to write, and exactly the one he had known would rise to the Court at the beginning of the War on Terror, from the instant those airplanes struck the twin towers, crumpling them to the ground. He had been patient as the nation massively increased domestic and international security, bolstered spying agencies, deployed troops to Afghanistan and waged a dubious war against Iraq. He knew this endgame would someday come even as Bayat and Hajri and the other preliminary cases worked their way through federal courts. On that September day, when the Justice watched American identity fracturing before his eyes, right there on TV, a couple hundred miles up I-95, his prescient mind whirled, and although Gideon had been wise enough to resist telling his friends and colleagues about his spot-on prediction, he also had the good sense to declare to Victoria at the dinner table that night that a case testing the constitutional right to habeas corpus would someday be the primary battlefield for the nation’s upcoming, ideological war. So she could vouch for him under oath if it came down to it. Or maybe she could just let his prediction slip to a future biographer.
But even with the bombshell of Colonel Inge’s declaration, that beautiful case would only be his to write if everything played out perfectly: Davidson switching his vote, the Court granting cert next term, the liberal side winning, and then Gideon securing the assignment to draft the majority opinion. And even if everything fell into line, how would he marshal the facts and statutes and constitutional language to expand the right of habeas corpus to non-citizens? Was that even what he wanted to do? What did he actually want to say about Al-Tounsi, even if only in the dicta, that was so damn important?
Maybe the answers would be more apparent if he considered the larger trends of U.S. history rather than the minutiae of this particular case. He had given a speech last October at the University of Chicago Law School to an auditorium packed full of students, professors, lay people and journalists, with C-SPAN cameras in the back, which addressed those trends in relation to Bayat and Hajri, the two earlier Subic Bay habeas cases. Gideon returned to his computer, unearthed that speech from his files and searched its introductory section, which he had structured as a refresher course on habeas corpus—when and where the concept had originated, how it had been used throughout history, and what it meant today.
The writ of habeas corpus has been recognized as a basic human right for hundreds of years. It is utilized in rare instances when someone is jailed without clear prerequisites, and a judge wants to determine whether or not that person has been imprisoned rightfully or wrongfully. The writ orders the jailor to bring the living body of the prisoner before the bench—habeas corpus: “you shall have the body”—so the judge can ask him or her key questions. Are we sure this person deserves to undergo legal proceedings of any kind whatsoever? Are we certain this imprisonment isn’t a wanton abuse of power by the executive? Issuing the writ doesn’t often result in the prisoner’s freedom; it merely guarantees that no gross injustice has slipped by unnoticed.
The right to habeas was so well ensconced in the western legal tradition by 1787, when the U.S. Constitution was written, that it was included in the main body of that text: Article I, Section 9, clause 2, known as the Suspension Clause: “The privilege of the Writ of Habeas Corpus shall not be infringed, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Whereas all our other personal rights, such as freedom of press, speech and religion, or the right to keep and bear arms, had to wait for the amended Bill of Rights to find their expression, this one did not. Habeas corpus was, and remains, the sole individual right enumerated in the main body of the Constitution.
The framers gave The Great Writ, as it is commonly called, this position of importance because the young nation had recently experienced a long and brutish revolutionary war. They understood that gross abuses of individual freedom were sometimes necessary in extreme war, but they also wanted to ensure that the right to habeas corpus would remain sacred. The Suspension Clause makes both of those declarations simultaneously. It draws a line in the sand between sacred time, when peace reigns, and profane time, when there is invasion, rebellion, or guerilla warfare—and suggests that different rules exist in those two situations. Marking that division was an essential act of the Constitution.
Yes, that was it: the Shaw administration was presently trying to clip the wings of the Suspension Clause, and that, ultimately, was an attempt at redrawing the boundary between war and peace. We are living in a time of perpetual war—that was what the Shaw administration had declared through its recent legislation and actions in Subic Bay. Our War on Terror is a new kind of war. It might take us to Afghanistan and Iraq, where we wage conventional battles, but ultimately it is a war without a fixed army or nation as our enemy, and because of this, it can have no end or final victory. There will no longer be a firm line between war and peace. The profane rules that govern society in times of war will now be our new “normal”; peace, with all its sacredness, is now our exception. Thus habeas corpus would no longer be an assumed right in the Constitution. The larger trend in U.S. history was clear. Al-Tounsi was poised to be the battle that either reinstated or redefined, once and for all, the line between war and peace.
Gideon placed his half-empty mug on a tile coaster. He was excited now, slightly caffeinated, sitting up straight, tapping his feet on his Persian rug. He felt alive and ready for battle. There was no use grinding out Deniston this morning. Better save that opinion for a clearer head, a lesser week. Securing the future of Al-Tounsi would be his real work today.
When Gideon’s secretary announced Victoria’s arrival at noon, for a second he was unsure who that was. Only when she
repeated his wife’s name did the Justice remember that Victoria had asked to visit him for lunch. As he tossed on his desk the printed and bound copy of Hajri v. Garfield, Victoria strode into his chambers, wearing her dark pant suit and pastel blue blouse, as if this were a professional meeting. Her shoulder-length silver hair was clipped back in a barrette, and she clutched a brown Whole Foods shopping bag. As she unpacked the take out containers on his coffee table, Gideon wondered when was the last time she had come to chambers. Over a decade, at least. Probably not since his first term.
“I won’t stay more than twenty minutes.” Victoria wasn’t looking at him, but surely she knew him well enough to feel his surprise at her presence from across the room.
“It’s fine, Vic. No problem.”
She moved his books and papers onto the floor, and on the cleared coffee table laid out containers and folded napkins, straightened the plastic cutlery, opened their respective bottles of iced tea. He watched her lovingly, half-surprised that his fastidious wife with her strong sense of New England propriety hadn’t stashed a tiny bouquet and vase in that bag along with the food.
“Shall we eat?”
Gideon joined her in the armchair across the couch. He flipped open his biodegradable salad container. It looked perfect, and he told her so. Beets, kale, artichoke hearts on a bed of greens.
“What are Max and Jacob up to today?” Gideon sliced a beet in half.
“Working, I think. They wolfed down breakfast before I left, and went right back up to their room. They were discussing their screenplay. We have two very diligent sons.”
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