“According to Bayat, Subic is subject to U.S. jurisdiction.”
“I disagreed with Justice Kataskis in Bayat, and I do again now.”
“But either way, Subic Bay is de facto—”
“There are no buts, Ms. Klein. De facto this, that or the other—it does not translate into the letter of the law. Subic Bay is on lease from the Philippines. Legally, the base is not under the sovereign control of the United States of America. De facto rule it might be, but we cannot interject what we personally think about an issue when the law itself is so clear.”
Ms. Klein, who was only 25, spoke with the cool composure and confidence of a fellow justice. She would never back down from an argument with her boss. Instead, she leaned forward to confront him more directly. “It all turns on what we mean by sovereignty. Seems whether you agree with Bayat or not, sovereignty was definitively resolved in that case. Subic is squarely under the D.C. Circuit’s jurisdiction, and that’s as much a part of the law as any lease agreement with the Philippines from a hundred years ago.”
Rodney shook his head vigorously. “No. I don’t like it, and I won’t do it. I will not play fast and loose with definitions. Sovereignty means what it means: it informs us who is the owner of that land, by law, de jure. Does that land belong to one nation or another? Can we draw a bright line? Yes. Subic Bay is part of the Philippines, and subsequently leased, meaning it is owned by the lessor. We cannot start questioning who de facto has power, or if sovereignty is affected by de facto status. If we begin to think of sovereignty as a gray concept, up for debate, then any time there’s a tiny dispute occurring outside the confirmed sovereign territory of the United States, this Court will be asked to determine jurisdiction. And we will have cornered ourselves, Ms. Klein, and be under an obligation to take those cases. Ominous and absurd that would be, determining what sovereignty means on a case-by-case basis, as if we were somehow judges of international law, not to mention elected officials charged with the task of deciding political questions. We are not qualified to say what sovereignty means internationally. We have been told what it means, and that is enough for us. End of our story. And if that still does not satisfy you, if you are eager to open up a can of worms and get into the business of questioning clear terminology, let me remind you of what happened to this Court in the 1960s when we decided to pry open questions around the term obscenity. Our brethren wasted countless hours of their precious time investigating the nooks and crannies, so to speak, of every piece of smut imaginable—does this pornographic image differ substantively from that one? How much of a woman’s or man’s privates must we witness for it to be obscene? and so on and so forth—while holed up in the basement, room 22-B, in fact, watching dirty movies like a pack of sex addicts. Moreover,” continued Rodney, over the laughter of his delighted clerks, “after all those hours behind a flickering film projector or huddled around an explicit magazine, our greatest contribution to the understanding of what obscenity might actually be was Justice Stewart’s infamous I know it when I see it. Tell me, Ms. Klein, do you find that legally helpful? Do you know sovereignty when you see it? I think, perhaps, we should have a more straightforward guideline, something along the lines of a definition. So if we open sovereignty, do you not see what that does to the law? What that does to you, or rather me, as a judge? No. I cannot do it. The cost is too great. I am unprepared for such a price.”
Rodney sat back in his armchair, and straightened his lapels. Why was he inflaming himself over a minor disagreement with Jessica Klein about sovereignty? He was not obliged to explain his logic. He had solicited the opinions of his innocent clerks, received them graciously, and now he should be able to move on assuredly without further drama. Yet here he was, raising his voice, on the verge of slamming his fist down on the coffee table like a judge in the movies, demanding his clerk’s full acquiescence. Order in the Court! Order in my Court!
He thanked and dismissed them. He locked the door and turned his Do Not Disturb sign against his secretaries and clerks. He rotated the venetian blinds on his windows downwards. He straightened the stack of the cert briefs on his desk beside his blotter, cases to be considered for next term, to be decided in this afternoon’s conference. He had to get to work. Instead, he sat at his desk, motionless, staring at the portrait of his dead wife. He turned it over, face down, and picked up his phone and buzzed his secretary.
“Jenn, would you please ask Ms. Klein to bring in her notes on Cartman v. Tennessee?”
Rodney unlocked his door, and returned to his desk before the clerk arrived. When Jessica entered chambers, he tried to look as if he were reviewing a cert petition, immersed in its questions. He glanced up at her expectantly, albeit with irritation at being interrupted.
“How’s that opinion progressing?”
The clerk showed him the draft in her hand. “Very well, Justice Sykes. I’ve added the footnotes you requested and key citations, but I think other than that it’s close to circulation.”
Rodney thanked her, and returned to his reading. She began to walk away, but he stopped her.
“Surely, Ms. Klein, you understand my point on sovereignty.”
Jessica stood behind an armchair. “Of course I do, Justice Sykes. But I still think you need to review the DTA procedures. Habeas applies, regardless.”
“How can habeas apply if Subic Bay is not part of sovereign U.S. territory?”
“It applies because the Military Commissions Act was written and signed inside the territorial United States. That’s what matters, not the status of the detainees. Habeas has to be understood as a fundamentally different right than the ones enumerated in the Amendments. There’s more to it than an individual entitlement. The Suspension Clause is Article I, so I think that it is intended primarily as a limitation on Congress, and not as a positive right that’s granted to citizens like free speech or the freedom to bear arms. I think the framers thought of habeas as one of our few unalienable natural rights, and therefore it could only be acted on negatively, taken away, and not granted. Obviously only in rebellion or invasion, as the clause so clearly states. So I think anybody in the world, if they’re imprisoned by the U.S., has the technical right to habeas in our courts. I mean, the text of the Constitution, look—is habeas ever enumerated as such? No. It’s assumed, right from the start. So on the constitutional level, at least, it doesn’t really matter if the prisoner in question has standing or is a citizen or is detained inside U.S. territory or anything like that. What matters is only that one key question: is Congress trying to limit constitutional habeas without offering a proper substitute?”
“And so therefore we have no choice but examine the procedures themselves?”
“Absolutely.”
“And when we complete our examination? How do they hold up?”
“I find them deficient in all seven ways that the Al-Tounsi petitioner’s brief so eloquently outlined.”
“I see. Thank you, Ms. Klein. I appreciate your candor.”
She left him alone. His clerks last year wouldn’t have challenged him like this. Cindy Chin, in particular—no, she wouldn’t have done it, with all her deference, her insecure voice that raised sentences into questions. This term only Jessica Klein had such fight. And yet she was the one clerk he had invited back into his private chambers, whom he wanted to debate. If Cindy Chin were in chambers today, he would have dismissed her along with the others, without a thought.
He picked up a cert brief and read it, but the words jumbled together, a linguistic mush of legal terms, clauses, stock phrases. Rodney stood. He put on his jacket, checked the time, and fetched his overcoat from the hanger by the door. In the entrance to chambers, he told his secretaries that he was venturing outside for a bit but would soon return, and would they please be so kind as to hold his calls.
He exited onto 2nd Street through the small back entrance to the Supreme Court Building into the biting cold of a late February morning. The frigid air stung his cheeks. Rodney walked south
on the near empty street, past the colorless administrative building for the Library of Congress, toward the only bustling neighborhood in the near vicinity, on Pennsylvania Avenue. Icy hillocks of snow rose out of the pavement here and there, blackened with exhaust and grime. He passed burrito shacks and banks, a prosperous Capitol Hill lounge, and a convenience store, the only business open before 10 A.M. An elderly man sat on an upside-down bucket in front of the store, arms crossed, huddling in the cold. His propped sign rested against a chewed-up Dunkin’ Donuts styrene cup, its words engraved in ballpoint pen that was running out of ink, on a piece of scrap cardboard. RIGHT HERE, said the sign, in blunt block letters. Rodney stopped. The beggar’s coffee cup sat on the gum-spotted sidewalk. The tips of the man’s two shredded running shoes stuck out on either side of the cup and the sign, with bits of his threadbare socks and toes peeking through the holes.
Rodney squinted and removed his glasses. The beggar wore an old down jacket that was missing most of its feathers, a dirty pair of work pants, and a maroon knit cap emblazoned with the Redskins profile logo. He had a bushy mustache and uneven stubble. Patches of his gray facial hair were on the verge of overtaking the black.
“Hey, brother.” The beggar nodded at him.
“Pardon me.” Rodney pointed at the sign. “Right here?”
The man looked down, as if he wasn’t aware of what he wrote. “The cup. ’Cause that’s where you wanna put your unwanted change and spare bills. Make it easy on you, man, so you don’ miss a thing.”
“I see.”
“Just pointin’ it out direct.”
“You’re not saying it about yourself?”
“What?” The beggar cocked his head in consideration. “Well, I ain’t sunnin’ myself on Miami beach, now, am I?” He laughed. “Just here like you.” He laughed again, with enough force to shake his body, and offered Rodney a shrug. He picked up his styrene cup and shook it at the Justice. A few nickels and dimes rattled.
“Feel like tappin’ that deep pocket of yours, doctor, for a couple of them quarters? Help a brother get right?”
Rodney fished around in his trouser pocket, but found only lint. As he had just undertaken a grand gesture of searching, now he had to offer something. He retrieved his wallet and deposited a couple of bills into the man’s cup.
Before the beggar could thank him, Rodney turned in the opposite direction and headed northwest on Pennsylvania, passing the businesses and restaurants waking for the day. He marched toward the Capital and veered out of the short commercial district onto Independence Avenue. The small stores were replaced with foreboding, block-sized government buildings enclosed by heavy iron fences. He walked faster now, blowing into his hands, and steered up toward the Capital on a gravel pathway. The neoclassical dome loomed before him. He skirted the building itself, and kept to the surrounding gardens. He passed giant white ashes and white oaks, gnarled Yoshino cherries once gifted by the Japanese government, and approached a grove of enormous magnolias hugging the western steps. When he reached the marble terrace, Rodney stopped to survey the Great Mall before him. He regarded the Ulysses S. Grant monument, erected before a small reflecting pool, but from this angle he saw only the rear end of that general’s bronze horse. In the distance, the Washington Monument resembled a giant toothpick stuck into the ground. The last time he had stood in this place was on the second inauguration of President Shaw, three years earlier. He hadn’t stood on this terrace exactly, but was seated above, in temporary bleachers on the western steps. From that vantage point, Rodney and his fellow justices surveyed the crowd, and a more expansive view of the Mall.
Today the gray city was compressed under heavy clouds. None of the deciduous trees had leaves, and the wilting evergreens shivered in a sharp, icy wind. The Great Mall’s lawn, so lush and green in summer, had browned. Huge swaths of it were covered with thin sheets of murky ice, too chunky and pock-marked to offer the appearance of glass. These last frigid days of winter could be so dismal. It felt like the world was coming to its end.
Cold air pricked his lungs. His non-negotiable duty for Friday mornings, between ten and noon, after that meeting with his clerks, was to review the week’s cert petitions. With the conference scheduled for one, he needed to be prepared. But cert petitions, like so much else these days, made little sense. Or no, their sense was clear, but their purpose felt diminished. Procedures, rules, questions of standing: more and more they felt like arbitrary barriers, a type of technical sophistry. Rodney had always thought of statutes and clauses and common law as tools to help him fight off the siege of incoming cases, to hold the line against the inevitable challenges, attacks and encroachments, but now his rulings, stricter than ever, made him feel directionless. As a result, his effort, attention to detail and self-discipline were slackening. His vigilance had waned, as indicated by this, right now—walking around aimlessly in the middle of a busy day. There were too many opinions and dissents, more and more streaming in from the circuits every day: you may do this, must not do that, the law shall only allow you to go so far, wide, and deep. You do not have standing on questions of sovereignty. My goodness, thought Rodney, has the time had come for me to retire?
Long after his secretaries and clerks had left for the weekend, Rodney worked in dark chambers under a single desk light, catching up on his endless reading and fiddling with the wording of an opinion, until someone knocked on his door. “Yes?” He pulled his attention up from the revision to Cartman v. Tennessee, expecting Linton, a custodian who had been at the Court for 35 years, to enter and gather the week’s garbage, or perhaps a court police officer, making his final rounds.
“Hey, Dad. Working?”
Rodney smiled, slid his chair back and pushed his papers aside. “Come in, Samuel, please. Just final touches on a minor case.”
Samuel’s lengthening dreadlocks gave him the unflattering appearance of a Portuguese Water Dog. Along with that ratty leather jacket, peeling at the elbows, Rodney’s son certainly did not resemble a typical Washington Post reporter. But then Samuel had tempered the slightly edgier elements of his outfit and personal style with a light blue button down shirt and a pair of khaki pants. He hung his jacket on a hook on the back of Rodney’s door and collapsed onto the low black couch. His shoulders looked broader than Rodney remembered—perhaps he was going to the gym. He snatched a pillow to prop his head, and slouched on the couch with an ease and comfort unthinkable for any clerk.
“To what do I owe this pleasure?”
“Thought we could catch some dinner, if you’re free.” Samuel crossed his ankles. “I don’t have any plans.”
“Aren’t we scheduled for tomorrow evening?”
“We don’t always have to stick to schedule, Dad. Look, if you can’t do it—”
“No, no,” interrupted Rodney. He stood from his desk and sat across from Samuel in one of the arm chairs. “Dinner would be delightful. Giordino’s?”
Samuel was studying him, the type of probing look that a psychiatrist might use on a patient he suspects has abandoned his medication. This was the drawback, Rodney supposed, of his son’s pronounced attentiveness, which had begun months earlier, during that torturous circus with Arroyo and Cassandra. The positive effects had been obvious: they now had dinner together every two weeks, and Samuel called him regularly. Nonetheless, Rodney would have to inform his kind but nosy son to stop worrying so much about him. Rodney was in no danger of falling off a cliff, he was absolutely fine. Perhaps he was a bit tired, and overcome with tasks that seemed ever more futile, but the Arroyo scandal had passed, and he had made it through that mess with his dignity intact. There was nothing more to say about his present situation, nothing to investigate.
“I don’t recall seeing you with the press in argument this week, Samuel.”
“I had to go to Montreal. Just got back this afternoon.”
“How lovely.”
“Yeah. It’s freezing up there, but they know how to make a bagel.” Sam kicked off his shoes
and put his feet on the coffee table. “How’re you doing, Dad?”
“I am fine, Samuel. Thank you for asking.”
“Have you talked to Cassandra recently?”
“I have not.” Rodney crossed his legs tightly in the armchair. “Why don’t we go to dinner? I can wrap things up here.” He stood and returned to his desk to gather his papers for the weekend.
Samuel did not press his investigation as they left the building, nor while driving up Massachusetts in his old Volkswagen. Rodney sat and enjoyed Samuel’s silent company, the passing cabs and traffic lights, the swish of tires on a wet road. They passed the Islamic Center on Massachusetts, with its tall minaret and pale blue Arabic inscription, and the bridge over Rock Creek, the embassies of Great Britain, South Africa, and Brazil, and the fortressed grounds of the Naval Observatory, official home of Vice President Bloomfield. This stretch of road was one of Rodney’s favorites in the city, and it seemed especially peaceful and picturesque in the lightly falling snow. They drove up Wisconsin Avenue until it crossed Fessenden, and then Samuel found a parking spot in front of Giordino’s. Rodney and Samuel were recognized and greeted by the young hostess, who led them to the Justice’s favorite booth. Ray Giordino emerged from the back in his tucked-in shirt. As usual, he wore his belt a notch too tightly, so that his stomach bulged above his waist.
“But I have you for tomorrow!” Ray shook Rodney’s hand and patted Samuel on the back. “What in heaven’s name is going on here, Justice Sykes? You don’t change Saturdays! You don’t do that! You’ve got me all confused!”
“A slight alteration, which I hope does not preclude me from visiting you twice in a single weekend.”
Ray assured him that it would not, and asked what they wanted. Ray suggested a new Chianti, the perfect accompaniment for Rodney’s chicken cacciatore, but something that would not overpower Samuel’s eggplant parmesan. Rodney agreed, waited for Ray’s return, tested the wine, and approved the fine choice. Samuel watched this whole interaction in silence. After Ray had poured their glasses and departed, Sam sat forward and spoke.
Al-Tounsi Page 24
