Al-Tounsi

by Anton Piatigorsky

  Rodney leaned back in his chair. Adolph Weinman’s marble friezes loomed above him, the carved portraits of great lawmakers from all human history, mounted into the recessed ceiling. Here was Blackstone and Hammurabi. Mohammad and Confucius. Moses and Solon of Athens. King John and Lycurgus. Each demanding that Rodney—that every justice on this Court—live up to their noble examples.

  Rodney had turned over Majid Al-Tounsi’s image in the booth in Giordino’s only to find it broadcast large on the front page of The Washington Post. He turned over Rebecca’s picture most mornings, upon entering chambers, although he would turn it right side up again at the end of the day, before he left. It hardly mattered. He always saw her face. She haunted him. Rebecca’s olive skin, even when wrinkled and spotted with age, was a holy compromise between gold and green, a godly gift to the Judaic people. How many times had he touched her face, caressed that cheek, stared into those almost black, coffee-colored eyes? How many times had he kissed her? Thousands? When was the last time? Months before her death? Years? Perhaps it had been that long, because of the tension, the stiffness. Their declarations of mutual sovereignty—implicit, really—and then the cold war that followed. He would imagine her clearly for the rest of his life, but would never actually see her again, never touch her cheek or caress her. She was gone. No chance of relief, no habeas. What was left of her body to bring forth before this judge? Her flesh by now had rotted into the earth, decayed, dust to dust. A basic fact. He knew that, of course, but somehow it had never sunk in. He knew it, but didn’t know it—never completely.

  His wife, Rebecca, his dear bride, his love, was dead.

  “First you should grant constitutional habeas corpus,” argued Niel Silver, in response to an unheard question of Justice Katsakis’s.

  No habeas corpus for the dead.

  Rodney blinked and blinked, sipped his water and blinked again. He swallowed hard, felt the discomfort of his body beneath his black robe.

  “And then I suggest holding hearings in the Court of Appeals,” continued Mr. Silver, “which can be done either under the All Writs Act or 28 U.S.C. Section 2347c …”

  Rebecca is dead.

  Rodney refused an invitation to join his colleagues for lunch in the Justices’ Dining Room. Instead he hurried back to chambers, greeted his clerks and secretaries as politely as he could, and retreated into his office. He locked the door, picked up the phone, and called Cassandra. Her high voice startled him, and quickened his pulse. He had called her on impulse, and had not quite considered the possibility of her answering.

  “Did I catch you at a bad time?”

  “No,” Cassandra said. “I’m not doing anything.”

  “I can try again later.”

  “I’m just at lunch.”

  “I see.” Rodney paused, flustered, and fiddled with a paper clip. “Then are you able to talk?”

  “Yeah.”

  “How is your apartment?”

  “Fine.”

  “And work?”

  “Also fine.”

  “You are enjoying your life in the Justice Department?”

  “It’s fine.”

  He should have prepared himself for these dead-end, one-word replies, as they were precisely the barrier to their previous conversations, most notably that disastrous holiday meal Samuel had arranged for them in December. His few tentative prods that night were met with a similar series of goods and fines, which soon gave way to Samuel’s wild attempt at banishing the awkward silence—his nervous chatter about the woeful Redskins and Wizards. Rodney had drunk too much wine, and Cassandra feigned nausea. She left before nine. He had spoken to her only once or twice since then, briefly.

  “Why are you calling me in the middle of the day?”

  Rodney uncoiled the paper clip into a straight wire. “I want to know how you’re feeling.”

  “Like I said. Fine.”

  “Your pregnancy?”

  “Everything’s fine.”

  He paused, thinking. Cindy Chin, the day Stone died, had entered his chambers to ask a routine question, nothing but a clarification of two past rulings, and he had shocked her with his unwarranted sobs. Her grammar devolved, she gave him that ride to the vet, cooked him that feast, and then he told her so much, about Marshall and Timothy and his mother, things he had never told anyone. Now he received emails from her monthly, detailing the slog of her life in a Chicago law firm, with pictures attached of Cindy and her fiancé hugging on the beach of Lake Michigan, and hints that Rodney would soon receive an invitation to their wedding. He did nothing to encourage such affection, and wrote only quick, formal replies. It would be his first invitation to a clerk’s wedding. All of her emotion, the inclusion in her life events, her love and respect, it had opened like floodgates, and washed over him, because he had unwittingly released a few tears. His response to his cat’s death and his openness with Cindy Chin had seemed silly at the time, a breakdown of boundaries, a mistake, but Rodney was undeniably pleased with the results.

  “I was thinking about your mother.”

  Rodney waited for a reply. He turned over the picture on his desk and shifted it so he could stare at Rebecca’s image, 45 years old, bare-shouldered by the pool at the Morrisons’ house—if he remembered correctly—her faint crow’s-feet accenting the charming squint that appeared whenever she laughed.

  “Your poor mother.”

  “What about her.” Cassandra sounded cold.

  “I miss her.”

  “I do, too.”

  “I was thinking about her.”

  “And what?”

  “In argument.”

  “You were thinking about mom in argument? You mean while sitting on the bench?”

  “I couldn’t stop myself. I was thinking about her instead of listening to the attorneys, and then, well, then …”

  “Did something happen?”

  “No, not really. But I was thinking that it must be difficult for you. Without her. I mean, now, with the baby coming.”

  Cassandra was silent, not even the sound of her breathing. Rodney started bending the paper clip into a circle.

  “Yeah. It is.”

  “It must be terribly painful.”

  “Are you trying to get me to cry in the middle of the deli?”

  “No. I’m sorry, Cassandra.”

  “That’s only part of my problem, though. Missing Mom. If you really want to know.”

  “What is the other part? Emmanuel?”

  “Yes, Manny. Of course, Manny.”

  “Have you seen him recently? Are you on speaking terms—”

  “We’re on speaking terms, yeah. But ever since I moved out it’s been clear to both of us that we’re done with each other. We just exchange necessary details and that’s about it. It’s a relationship of logistics.”

  “But is he going to—”

  “He’s going to pay child support, if that’s what you mean, of course. And we’ll work out some custody deal. He’s acting cordial and mature, but the more distance I get from him, the more I realize how much I dislike him. I’m more or less shackled to him in some way or another for the rest of my life.”

  “What about Denny?”

  “He wants nothing to do with me. Can you blame the guy? Look, if you want to know about Denny, ask Sam. I think they talk to each other all the time.”

  “Cassandra, are you free to speak openly like this? I mean, where you are?”

  “Nobody’s near me. Don’t worry so much.”

  Rodney sat still at his desk, his shoulders twitching, his legs aching from his marathon walk, and tight with tension.

  “Are you really okay, Cassandra?”

  “Oh God.” She paused. “Do you know what’ll happen to my emotional state if I really answer that question? I’m fine, yes, given that I’m terrified, and seven and a half months pregnant, and single, and don’t know what the hell’s going to happen to me, or how I’m going to get through this nightmare without ruining a child’s life. Pl
us the fact that I’m pretty well considered a cheap whore by anyone who recognizes me, which happens to be every single person wearing a suit or heels in this miserable bureaucratic city.”

  “Your mother.” Rodney hesitated, and considered seriously what it was that he wanted to tell her. “She hated being pregnant.”

  “What do you mean?” Cassandra’s voice was taut and thin. “It was terrible, both of her pregnancies.”

  “Why?”

  “I don’t recall exactly. I think the unfairness had something to do with it. That it was all on her, not me. The physical burden took a toll. But also us, I think. Our relationship.”

  Rodney had now contorted the paper clip into a more or less compete circle, but he could not get the ends of the thin metal bar to line up exactly. He pressed the wire on the desk, pushing the raised end down with his fingernail, but still, it would not touch.

  “I suspect the rules between couples change at that time. Or rather, they did for your mother and me. Before pregnancy, she was independent, entirely, and eager to remain that way. Independent from me. It was a large part of how she thought of herself, and I, of course, loved and expected that quality in her. This was our relationship. But after she got pregnant, I don’t know what happened. Perhaps hormones, or the precarious nature of the experience, or some combination of the two, or merely the anxiety of our impending responsibilities …”

  “Did something happen between you?”

  “I don’t know.”

  “What happened?”

  “Nothing happened”—Rodney heard himself say—“that I can put my finger on. We did not fight. I did nothing that was technically wrong. I was there, of course, in body, but—”

  “Not what she needed?”

  “Well, I always returned to the house after work, and I did work late, of course, but that’s not it. What am I saying?” He pulled the paper clip wire apart, shifted its structure, and again pressed the ends toward each other. “What do I mean? I was somehow not present. I had no idea what I was supposed to do or say. Whatever it was, I did not do it. I did not think it was my job. The husband of an independent woman. But ultimately, I was not there. This did something destructive to us. I’m not sure what exactly it did between us.”

  “I know what it did.”

  “I suppose you might, yes.”

  “I saw it every day.”

  “The fact of the matter is, we never really went back to how we were before her pregnancies.” Rodney was sweating now, and feeling quite nauseous. “That is what I wanted to tell you.”

  He waited. Cassandra sighed, and he hoped that it might release whatever it was that so enraged her. “I have to go, Dad. I have to get back to work.”

  “All right.”

  “Thanks for telling me that, though. And for calling.”

  “You’re welcome.”

  Rodney waited for her to say goodbye and hang up. She didn’t. He tossed the incomplete circle of a paper clip into the garbage.

  “I don’t know how to make this better for you, Cassandra.”

  “You can’t make it better.”

  “I don’t know what to offer you. I am beyond words. I am in over my head, here.”

  “That makes two of us.”

  “I’m thinking about you all the time. I would like to call you again. I will call you again. Soon.”

  “Thanks.”

  “And if you ever want to call me, Cassandra …”

  “Okay, Dad. Thanks.”

  He hung up the phone. He squinted at the static image of Rebecca. His mantle clock’s ticking was quiet and soothing, a gentle reminder of time’s passage: steady, subtle, regular. Refusing to rush, no matter what the world was doing outside of his private room. That same clock, once upon a time, had graced some magistrate’s office in colonial Williamsburg, no doubt soothing the worries of its bewigged, snuff-snorting owner with its soft tk tk tk. Now it was here. Rodney slumped, and then realized that his daughter hadn’t used his name, and that instead she had called him Dad.

  PART 3

  OPINION OF THE COURT

  8

  ODD PAIRINGS

  Gideon Rosen burned in envy of Manny Arroyo. He studied Arroyo’s upper body, with his rounded shoulders and meaty pecs, which more resembled a professional linebacker’s than a Supreme Court justice’s. There hadn’t been a physique like Manny’s in this Conference Room since the early days of Byron White, and old “Whizzer” White actually had played halfback for the Detroit Lions. Justice Arroyo sauntered back to the conference table after closing the door—his casual but purposeful walk consistent with his build, like an athlete approaching the locker room before a big game. That guy could crush any hand he gripped. But Arroyo’s physical strength wasn’t really the source of Gideon’s envy. What truly mattered was his colleague’s power, the ability to obliterate 50 years of precedent with a single vote.

  Manny joined the others, who had gathered around Davidson’s chair for their ceremonial handshakes. Gideon tried to smile as he shook Manny’s hand, but he found it hard. Today’s monumental conference on Al-Tounsi v. Shaw had been rendered into a mere formality the moment Justice Arroyo replaced Justice Van Cleve. Justice Katsakis no longer mattered: the government respondents had Eberly, Quinn, Sykes, Bryce and Arroyo on side. The case was all but over. Still, as Arroyo sipped coffee and uncapped his pen at the far end of the table, Gideon’s feet tapped, his fingers twitched and he sniffled in quick sets of three. He probably should have been embarrassed by all these nervous tics, but Gideon was too damn anxious to care either way. His tics intensified during the routine dispensation of cert cases, until Eberly announced, at last, that they would discuss cases argued on Monday, February 25, 2008, beginning with number 06-1172, Al-Tounsi v. Shaw.

  “My big problem,” started the Chief Justice, “is the question of reasonable substitute. I could go either way on the question of sovereignty, and if the Constitution applies to these detainees, but second-guessing procedures put in place by the political branches? Just can’t see it. CSRTs with review at the court of appeal passes muster for a habeas substitute, absolutely, especially given the limited requirements necessary for enemy combatants abroad in wartime—I mean, look at our precedents. These procedures might be ugly, but they don’t trigger the Suspension Clause. Doesn’t say anywhere in the Constitution they have to be pretty.”

  Chief Justice Eberly finished his point and ceded the discussion to Bernhard Davidson, who let loose with his opposing view on the CSRT’s deficiencies. Gideon scratched in the margin of his yellow legal pad BD no longer constrained by cert limitations, which was an obvious point, and so he scratched out the stupid comment immediately after writing it. God, his nerves: anything to keep his pen moving until it was his turn to speak. The justices’ comments on the case proceeded in descending seniority. As expected, Killian’s fairy-tale faith in some pure constitutional past focused his attack on the historical reach of the habeas writ, and how it would have never applied here. But there was something other than the usual originalist outrage animating Quinn this morning. He was speaking with an uncharacteristically joyful tone, and he punctuated his remarks with a meek smile. Saving his vitriol for the written word? Or maybe this was how Quinn looked when he was tasting victory in a major case—a rare occurrence, before this term. Victory had dampened his righteous anger. Why should Killian roar furiously at Bernhard when his side would so obviously win?

  There were no surprises from Talos Katsakis. Colonel Inge’s declaration had pushed Talos’s once crucial vote over to the petitioners’ side for good—which was predictable, otherwise why would he have granted this case cert back in the summer? Justice Katsakis claimed he was untroubled by ruling for the petitioners here, even though that ruling countered the authority of Congress and the President. The debacle with the CSRTs, he said, was just too embarrassing for the nation; he could no longer worry about bolstering the prestige of the other branches given these kangaroo tribunals, the subversion of the G
eneva Conventions, and the blatant disregard for the Court’s earlier rulings. By that did he mean the executive’s disregard for Talos’s own concurrence in Hajri? Was there something personal here? Justice Katsakis did not make a complex argument, but he had a way of layering it with obscure details, and blabbered on and on, which had Gideon shifting in his seat. Less than a year earlier, Gideon would have been thrilled to hear Talos speak like this about Al-Tounsi and then to have him vote with the petitioners—this very same speech would have made Gideon giddy with joy. But today Talos’s vote was meaningless. Instead, Gideon focused his attention on Talos’s unusual accent, which had been molded by the twin forces of his early childhood in Thessaloniki and his All-American, valedictorian adolescence in Astoria, New York. Gideon tried to picture Justice Katsakis delivering that favorite lecture of his—The Revolutionary Bill of Rights—to some pack of undergrads in whatever state university was willing to offer him the opportunity. Gideon had suffered through that talk once, down at University of Virginia. Maudlin piece of claptrap. Talos driving off to engagements in the sparkling, late-model Cadillac he seemed to love as much as his children.

  When Rodney began to speak, Gideon closed his eyes and wanted to bang his head on the table. Rodney’s typically stale legalistic argument addressed the unassailable sanctity of sovereignty—Subic Bay was owned by the Philippines, so how could the Court grant these detainees habeas?—but during his soporific monotone Rodney suddenly rolled his head and furrowed his brow in a curious, troubled way. What was the meaning of that? And then Rodney said something truly shocking.

  “I don’t like it.”

  Just like that. A flat declaration of dislike. Gideon leaned forward.

  Rodney pressed his lips together, as if he were trying to hold back what he wanted to say next. What the hell was going on here? Around the room, Gideon’s colleagues all watched Justice Sykes with equal surprise.

  “Upon close examination,” continued Rodney, “I can see that the CSRTs are gravely deficient. I find the desire of the political branches to strip habeas via the MCA, without offering any humane substitute, bizarre and cruel. That said, I do of course understand the question here is not whether I like the law or not. I remain convinced that Philippine sovereignty over Subic Bay is a jurisdictional barrier, that both Eisentrager and earlier precedents insist on our denying habeas, and that the law is settled. Therefore, any examination into whether the CSRTs are good or bad, adequate or not, is unnecessary. The government is correct, and so I vote for the respondents. I would be happy to write an opinion addressing the jurisdictional sovereignty question, or to join someone else’s opinion on that matter.” Rodney hesitated—something big was coming. Gideon held his breath. “But I suppose I’m saying something more than that. There is a limit for me. I doubt I would join any opinion that went so far as to extol the CSRT procedures themselves. I have a very strong distaste for them.”