Al-Tounsi

by Anton Piatigorsky

  “Me?” Rodney’s eyes opened wide with panic.

  Rodney rotated toward the window, twisted back toward his desk, and then jerked back toward the bookshelf, so that the cord wrapped around him. It was comic and absurd—the cord would snap off if Gideon didn’t release the phone. But when Gideon did release it, the phone dangled in the air, hanging off Rodney’s leg.

  “Yes, of course. I’ll come, right away.”

  Rodney held the receiver away from his head, and then searched confusedly for the body of the phone. “Oh my. Look at this.”

  Gideon rushed over to him, took the headset from Rodney’s hand and helped Justice Sykes disentangle himself. “Everything okay?” Gideon dared to ask, as he placed the phone on Rodney’s desk. “Was anybody hurt?”

  “No, no.” Rodney spoke over his shoulder as he ran toward the door. “Cassandra is having her baby and she wants me to come.”

  The columns and tiers of the U.S. Capitol dome dominated the view from Gideon’s chambers. Two birds circled, coasting lazily on air currents, dipping close to the bronze Statue of Freedom atop the dome, and then pulling away to catch the breeze again. Eventually, Gideon supposed, they would land on the statue’s eagle headdress.

  It was funny to have said all that personal information to Rodney today, like they were old friends instead of impartial colleagues.

  Gideon wondered about the truth of what he had said. Did he really did feel like a fraud, or was that just a performance, an act of staged humility, to open Rodney up and win him over to his side? Was Gideon’s confession an act of political manipulation, a means to an end? These were the problems of having an actor’s disposition. Sometimes, when overwhelmed by ambition and drive, and performing at his peak abilities, not even Gideon could tell whether his emotions were real or reproduced. He often lived submerged in mimesis, hopelessly riven from himself.

  Rodney had described an irony he felt. He claimed to be more inside himself when he was thinking about those outside himself. Gideon supposed that he had experienced that same irony, but in the opposite direction: Gideon felt more outside himself whenever he tried to think about his innermost anxieties. In fact, that’s how Gideon felt right now—outside himself—and all the more trapped by his own pressing fears.

  How to get back inside? Justice Brandeis had a method. Brandeis used to claim that he could get a year’s worth of work done in 11 months, but never in 12. Because to stay sane and grounded (in himself, Gideon supposed), Brandeis said he had to spend a month canoeing down the Ausable River in the Adirondacks, and forget his work. The only thing that would keep Louis Brandeis grounded was to surround himself with birds and trees as he paddled down a river carved into a chasm of ancient New York rock.

  Venturing into nature: that was not so different from what Victoria wanted him to do—except Victoria wanted Gideon to go canoeing on that proverbial river permanently, not just for a month. Gideon sighed.

  If Victoria were standing beside him now, binoculars in hand, she would peek at those circling birds and say, blandly, crows.

  Victoria was the only woman who had ever made Gideon forget his ambition. On occasion, when he was with her, Gideon would forget his work and feel what Brandeis must have felt while canoeing on the Ausible—grounded in himself. Victoria was the only person in Gideon’s life who had ever enticed him to put down his pen and take a walk in the woods and look at birds. Birds, of all things! Did Gideon even like birds? He didn’t know. That was a discomforting thought. What if all his bird-watching over the years had been just another performance of sorts, to win her over?

  Gideon returned to his desk, picked up his phone and called his secretary.

  “Will you please send a small box of Dominican cigars over to Justice Sykes’s chambers for tomorrow? Nothing too expensive. And I’d like you to get a card inscribed: Congratulations, from Gideon.”

  He sat quietly at his desk after hanging up. Sending cigars to Rodney Sykes was another performance, certainly, but it was also a deeply felt gesture. It was both things, simultaneously. Should he be disgusted with himself for his craven outreach, or pleased with himself for offering honest good wishes to a colleague? Most likely something in between.

  Gideon never got chummy with his clerks. He was cordial and professional with them, but he didn’t make jokes, and refused to allow his chambers to devolve into a place where they could goof off. Young lawyers had to realize that federal appellate law was a serious business; they were his employees, and he was their boss. Order was essential. When Gideon wanted a reference or string of cases on his desk ASAP, he needed to be able to say go get it and know they would do it, right away. If he didn’t have that air of seriousness in his chambers, he would be quickly swamped by the endless work. Gideon’s clerks, all eager and brilliant lawyers, didn’t just suffer in his chambers, either. They benefited greatly from their relationship with him. Writing on their CVs that they had clerked for a Supreme Court justice would get them hired by any law school faculty, prestigious constitutional firm or governmental department that they wanted; it positioned them for illustrious careers. Gideon’s own career had begun inside this building, clerking for Abe Fortas—bless that poor fool with all his shady moral lapses—and that had served him very well. Gideon had no compunction working his clerks very hard. He found that his clerks appreciated the challenge and remained devoted to him.

  This year’s batch, two women and two men, were on especially friendly terms with clerks in other chambers. They played together on a softball team called The Supremes. Their games were held every Wednesday night in spring against the interns and low-ranking staff of other federal departments—like the Department of Agriculture, Health and Human Services, and the Department of Justice—on diamonds near the Lincoln Memorial, beside the FDR memorial. It seemed The Supremes had chatted with each other last night between innings, and let some important information slip, because when Gideon’s clerks came into work this Thursday morning, they requested an immediate meeting with him in his chambers. They stood around his desk, eager to talk, not bothering to take seats.

  “Justice Sykes is switching on Al-Tounsi,” said Franklin, who was only 26, but already completely bald.

  “You sure?” Gideon leaned forward onto his desk.

  “His clerks confirmed it,” added Tannisha. “We asked if he was joining you—I mean, we assumed it—but then they just got cagey. It sounds like he’s joining some parts, but not the complete opinion. We don’t know the details yet.”

  “It’s possible he’s writing a concurrence.”

  “But he’s joining in part?” Gideon inwardly winced at his naked plead. “My dissent’s going to be the official opinion?”

  “We don’t know exactly,” said Neal.

  “Well, find out!”

  His clerks laughed.

  “I mean, come on, guys, you come in here with the biggest news I’ve heard in years, but you know it’s incomplete. I need to know this stuff as soon as possible. If these detainees get habeas, everything changes. Please do a bit more digging.”

  He sent his clerks on their way and made phone calls.

  “It’s very good news,” agreed Davidson, who had heard the same from his clerks. The old man didn’t know any details, like whether or not Rodney planned on writing a concurrence or joining Gideon’s majority. Talos had more information, though—one of his clerks was sleeping with one of Rodney’s. Talos had heard that Rodney was writing a concurrence, but when Gideon pressed him on that, Talos admitted he didn’t know anything for certain.

  Gideon peered out his window between calls. The trees by the Capitol were budding with light-green spring leaves. Maybe Justices Quinn and Eberly, when they got hold of this news, would panic and start petitioning Rodney directly, plying him with hard facts about the historical reach of the writ, pushing him into maintaining his traditional view of strict sovereignty. It was possible that they would win him back. But not necessarily. Justice Sykes was stubborn. Once Rodney had decide
d on a position, no amount of lobbying from the Chief or anyone else would convince him otherwise.

  So it was also possible that Gideon’s rather brilliant reframing of sovereignty had won Sykes over. That would be glorious! Gideon would be the justice who had limited presidential power, who had realigned the bright line between war and peace after the Shaw administration’s irresponsible blurring in its “war on terror.” Gideon’s opinion would fight against the administration’s unnecessary military conflicts in Iraq and Afghanistan and their slow erosion of civil rights at home. The Court would assert habeas rights for non-citizen detainees in territory over which the United States does not exercise sovereignty for the first time in history; the country would right itself, and the history books would have no choice but to show that it was his opinion, his logic, that had reestablished the dominance of peace. Could that really happen today? Perhaps Sarah would know definitively.

  “Sorry,” said Justice Kolmann. “Don’t know anything more than you.”

  “Well, should I call Rodney? I could just ask him directly.”

  “You should do nothing of the sort. You need to sit back, Gideon. Rodney will do what he does, and you can’t do anything about it.”

  “Right.”

  “Although it does sound like he’s committed to our side. But that is all the more reason why you shouldn’t pressure him. We’ll just have to wait and see.”

  “Of course. We’ll wait and see.”

  Gideon paced in his chambers and made tea, but he couldn’t bring himself to drink it. He slouched on the black sofa, finished gnawing one thumbnail down to its nub before moving on to the other. He had so much work, but he couldn’t concentrate. He paced again, counting steps out, nine to the left, nine to the right—like that woman in that Beckett play he saw in Chicago years ago—and then he called his clerks back into chambers.

  “Anything new?”

  “We’ll hear more at lunch,” said Tannisha. “Once we get his clerks alone.”

  “I strongly suggest you take your lunch right now.”

  Again his clerks laughed. Gideon did not usually command them to skip off for an early meal. They left him alone. Gideon returned to his desk, switched on Don Giovanni and his computer, and tried to focus on a lesser opinion he was drafting. His thinking was all over the place. He made a mess of the draft, and erased most of his work.

  The clerks knocked on his door after lunch.

  “It doesn’t make sense,” said Franklin. “He’s joining a section of your opinion and a section of Justice Quinn’s, and also writing a concurrence.”

  “What do you mean both? What sections? Quinn’s and mine?”

  “From your opinion, it sounds like he’s joining two sections, five and six, all parts.”

  Gideon rifled through his memory. Sections five and six—that was where he offered proof that the DTA-MCA procedures did not provide an adequate substitute for habeas. It was a good start, meaty stuff to join. “What about Justice Quinn’s?”

  “That’s where it gets really strange,” said Cynthia. “He’s joining Quinn’s section two, A and B.”

  “Section two? Which is that?”

  “It’s on the historical reach of the writ. The part where Quinn says habeas would never extend as far as non-citizen detainees in Subic Bay, and where he unequivocally denies them a right to the writ.”

  “He’s joining Quinn on that?”

  “That’s what we’ve been told.”

  “So he’s saying habeas doesn’t extend, but also that the DTA-MCA procedures don’t substitute? He’s saying both?”

  “Yup.”

  “Well, that doesn’t follow. That doesn’t make any sense.”

  “We know,” said Tannisha.

  “Because he’s joining our ruling, right? And we’re remanding the case to circuit, with instructions to grant habeas?” Sykes’s logic was too bizarre. Gideon had to spell it out slowly, to see if speaking it out loud made any more sense.

  “Apparently, yes.”

  “That’s insane. You can’t deny the legal right to habeas, but then grant habeas. That’s a logical fallacy. That’s not something one does. It makes no sense.”

  “We know,” repeated Franklin. “None of us understands how it could be.”

  He thanked his clerks and let them go. They must have gotten something wrong. There must have been some breakdown in the clerks’ gossip, an egregious case of broken telephone. There were certain fundamental principles of jurisprudence that linked opinions as diverse as Justice Quinn’s and Justice Rosen’s, Hugo Black’s and Elyse Van Cleve’s, Roger Taney’s and Louis Brandeis’s, and the most fundamental of all those principles was that each opinion had to make sense. It had to present a discernible chain of reasoning, which worked to convince the reader that its proposed ruling followed the law according to traditional rules of logic. If Rodney intended to join a bizarre combination of irreconcilable sections in two opposing opinions, which would not withstand the weight of a cursory reading by a first-year law student, then Gideon did indeed need to call him. Because Rodney had to be making some terrible miscalculation about what those sections actually meant. Someone needed to set him straight before he embarrassed himself.

  But was it better to call or wait? Rodney never appreciated meddling. Gideon spent another agonizing few hours alone, skipping around on his computer from opinion to opinion, doing a bit of work on one and then another, until the day was almost over. At last he picked up the phone, dialed and reached Justice Sykes on the first ring. Rodney sounded calm, and well. Gideon suffered through a spate of quick pleasantries—How is Cassandra? Yes, that did seem like quite the startle. She had a boy, that’s wonderful, you must be so pleased!—and then asked his fellow Justice outright about Al-Tounsi. Was Rodney writing separately?

  “Yes, and I am about to circulate my concurrence. You should receive it within the half-hour.”

  “But you’re concurring with the ruling? Meaning we’re granting habeas?”

  “That’s correct.”

  “My clerks have told me you’re joining part of my opinion and part of Killian’s. Is that also right?”

  “Indeed, it is. I’m joining your sections five and six, and Killian’s second.”

  “Killian’s second section on the historical reach of the writ?”

  “That’s correct.”

  Gideon waited for Rodney to offer some kind of explanation, but he didn’t.

  “Rodney, I don’t see how that makes any sense.”

  “No, I imagine not. It is a rather surprising pairing, I do admit.”

  “It’s more than surprising. It doesn’t make any sense.”

  “You’ll have to read my concurrence in order to understand my logic, Gideon.”

  “Well, can you give me some clue? I’m really struggling here.”

  “You will have my full explanation on your desk before the day is through, and so I would like to say no more about it now. There’s no point in expressing myself in a messy and incomplete way when you will get my complete reasoning on paper soon enough.”

  “Of course.” Gideon waited again for Rodney to offer more. “Okay, then. I’m looking forward to receiving it.”

  After the phone call, Gideon sank into his seat and rubbed his hands through his thin hair. The silence of his chambers dampened his mood. Rodney’s opinion, a concrete thing, would arrive in due course, and either condemn Gideon to irrelevance on the most important case of his career or enshrine him in glory as the author of a majority opinion. Waiting was terrible. Gideon’s career lingered in purgatory.

  At last, Gideon’s secretary brought in the sealed manila envelope, From Justice Sykes’s Chambers scribbled on its cover. He clutched the envelope in his fist until his secretary had left him alone, and then at last ripped it open.

  Rodney’s concurrence was a concise 14 pages, although that would extend when reformatted into the Court’s official layout. It had three sections. The first was an explanation of how and wh
y Rodney could join such an “odd pairing,” in his own words, of two radically opposed opinions. It wasn’t anything all that groundbreaking. It just said that Rodney agreed with Gideon on one major point and Killian on another—with Rodney’s own strict reading of sovereignty the issue tying them together. Rodney remained adamant that Subic Bay was subject to the Philippines’ control, and that that designation barred the Court from offering any legal habeas relief. He attacked Gideon for relying on a “cherry-picked” definition of sovereignty to suit his needs. Ouch. Rodney also attacked Gideon for his “functional test” reading of precedent, the logic that Gideon had used alongside his definition of sovereignty to explain why habeas applied. No applicable “functional” tests can ever apply constitutional rights to extraterritorial foreign nationals, Rodney wrote, because formal sovereignty excludes them by definition. Sovereignty means precisely what it says.

  So Justice Sykes had set up a giant and inescapable contradiction for himself. There was simply no way to grant habeas under the terms of that first section. It was impossible. Gideon read on.

  Rodney’s second section addressed that insurmountable problem. As Gideon read it, he began to feel weak. His mouth dried, and his legs softened. He read the whole thing quickly, doubted himself, went back and read it again. It couldn’t be right. He read it a third time more slowly, stopping to read certain sentences over and over to make sure that they actually said what he thought they did. It was astonishing. Rodney was proposing an entirely new legal doctrine: the doctrine of subversion. That was the word he used. A willed and conscious subversion of the law. Subversion? Really? In a legal judgment from the highest court in the land? Rodney wrote that his doctrine should be invoked only in the rarest circumstances, those terrible conditions when the written law was clear and unequivocal and yet undeniably wrong—and here, unbelievably, Rodney dared to offer a list of conditions for how and when a justice might determine that a law was wrong, the legal conditions necessary for invoking this new doctrine. And the doctrine, itself—incredible! It was self-consciously moral. It allowed a justice to look the law in the eye, so to speak, and say: I understand your terms, but will not follow you on moral grounds. It was a kind of justified criminality. Or rather, since it came from a justice’s pen and was therefore part of common law, this doctrine of subversion was a proposal to legalize an overt illegality, oxymorons be damned. In short, it was the most lunatic and brazen thing that Gideon had read in his career, and that included the full, complete works of Louis Dembitz Brandeis.