Al-Tounsi

by Anton Piatigorsky

  “How’s the mood on the Court these days?”

  “Amicable.” Rodney smiled politely.

  “Arroyo?”

  “He’s a qualified professional.”

  “You guys talking at all?”

  “We speak when it’s required. In conference. During our discussion of cases.”

  “And that’s it?”

  “I don’t see why you should be surprised by that, Samuel. There is nothing strange about it. I have the same relationship with all of my other colleagues.”

  “Okay.” Samuel sighed with impatience. He unrolled his cloth napkin, and then draped one corner of it over the middle fingers on his right hand, tucked a second corner into the gap between his thumb and forefinger, and a third between his ring finger and pinkie. He fiddled and fussed and shaped the cloth. When at last he raised his covered hand, Samuel had transformed his napkin into a bright red, floppy-eared rabbit.

  “I want cawwots,” said the rabbit. “Cawwots pwease.”

  “Samuel!”

  Samuel tossed the napkin onto the table, grumbled inaudibly, and took a big sip of wine. “Come on, Dad. You see Manny every single day. What’s that like? Is it all just formal and restrained and with everything under the surface? Tell me what you actually think and feel about sitting in the same room with the guy. What’s it like to decide cases with him?”

  “I have no complaints with the man.”

  “Please, Dad. Listen to me. I am begging you to tell me something substantial about your life.”

  “Why? Does The Washington Post need a new piece about the great Supreme Court scandal, six months hence? Are you that eager to have even more salacious gossip for your pages?”

  “It’s not for the record. I’m not going to write a story. I want to know because I’m your son. Simple as that.” Samuel’s innocent, open smile made him look 16, in spite of his manly shoulders.

  “If you must know something, I will tell you this. I dislike Justice Arroyo’s jurisprudence. I dislike it immensely. There. You may take your mental notes.”

  “I don’t like it either.”

  “Except that is not a personal verdict, Samuel. That has nothing to do with any old nonsense about Cassandra, or the man’s past indiscretion with me. It is entirely a function of his present opinions and dissents. I find them odious, and deeply problematic. Sometimes, as I sit in conference listening to Justice Arroyo blather on with his shocking arrogance, and I feel tempted to engage him in battle—which I resist, mind you, always—I feel more like a weary law professor faced with an unruly first-year, know-it-all student than a Supreme Court justice confronted with a colleague. Emmanuel Arroyo is a mean-spirited and over-entitled bully who has somehow forgotten that the basic purpose of law is to balance two equally valid, opposing needs, and that inevitably in each case someone worthy must lose, and moreover the possibility of loss in any given instance is right and good. That it is, in fact, better in the aggregate for everyone to suffer a tiny bit when entering into an adversarial legal proceeding than for one side to always win. Incredibly, Manny Arroyo does not seem to grasp this most basic lesson of fair play. With him, any unwelcome ruling is sour grapes, an unfair request, an improper denial, or faulty logic. He is incapable of dissociating his bald, egotistical desires from the will of the people as embodied by statute. From democracy. Frankly, Samuel, his behavior reminds me less of what a justice’s should be, and more of an entirely partisan player in the political branches. It’s as if Vice President Bloomfield himself has joined us on the bench. Or worse. In his narcissism, he’s like your Uncle Marshall, writing childish screeds locked away in his prison cell.”

  “Ouch.”

  “If you must know everything, Samuel, then I will also add this. I cannot bring myself to look at his self-righteous face when he speaks. I catch myself staring off into space, or pondering the tip of my pen, anything. The books on the shelves. Sometimes I pretend to take notes. I loathe that man’s thinking. His presence, Samuel, and the knowledge that he will remain my colleague for many decades, has me quite despondent.”

  “But none of that, of course, has anything to do with the fact that your daughter and this man just—”

  “It is a principled response to his jurisprudence! That is it. Now I’m done talking about it.”

  Rodney sat back hard and pressed his hands into fists beneath the table. He should never have taken his son’s obvious bait. Like his late mother, Samuel believed that diving into the murky swamp of one’s emotions was a productive exercise, and often necessary, but Rodney believed differently. To Rodney, it always seemed like an indulgence, a futile exercise. Why talk in depth about a situation that could not be changed or altered in any meaningful way, only endured? He gritted his teeth. He had been enflamed unnecessarily, and damn Samuel for pressing! He turned away from his son, toward a mounted poster of the 2006 Italian National Football Team, its players posed joyously in three successively higher rows, the striker holding aloft the small World Cup trophy. He studied their open glee of victory. The poster was framed by two hanging scarves, emblazed with the Italian team’s tri-colored shield and the bold phrase “Forza Azzuri.” His anger wasn’t fading.

  “If you must insist on pressing me about Arroyo and your sister, then I would rather cut short our dinner tonight.”

  “Fine. So we won’t talk about it.” Samuel pulled one of his feet onto the upholstered bench beside him, and rested the weight of his outstretched arm on his knee. “There’s something I want to tell you about Montreal. I went up there for a story I’m writing for Monday’s paper. It’s been timed for the Al-Tounsi argument. I got an email at work awhile back from this kid, an engineering student up in McGill, named Athir Al-Tounsi. He’s your main petitioner’s eldest son. Really bright guy, got a scholarship to study up in Canada, and off he went. This was a couple years ago. So he’s third year, now, acclimatized to North America and all that. Obviously, he’s been concerned about his father, and he’s a diligent guy—done all sorts of research, talking with his father’s lawyers, consulting law professors at McGill, and you wouldn’t believe what he’s put together. He’s treated this a like a full-time job while also holding down his considerable schoolwork. He figured out I was your son, read my articles, and emailed me to say he wanted to meet. I think, really, more than anything, he wanted me to work on you, subtly, to try to get you to—”

  “Stop it!” Rodney’s face heated. “I will not talk to you about an upcoming case!”

  “I’m not asking you to talk about it.”

  “Don’t you know how deeply unethical it is for you to try to convince me of anything?”

  “Look, Dad, I’m just telling you some information I learned that I think will be of some interest to you. Okay? It’s stuff you’ll see on Monday in the newspaper, anyway, which I know you’ll read before argument, so why don’t you consider this a personally directed, last-minute amicus brief? The guy made a big impression on me, and I want to tell you about it. I was thinking about you the entire three days I was up there talking to him.” Samuel removed his leg and leaned on the table, toward Rodney. “Also, you’re wrong, Dad. There’s nothing unethical about me trying to convince you of something, although that’s not even what I’m doing. Presenting an argument is what everyone around you from the lawyers to the clerks to the other justices do. It’s your job to be convinced, Dad. That’s kind of the whole point, isn’t it?”

  “This is ex parte, Samuel. Entirely unethical.”

  “I don’t care. Will you please just listen?”

  Rodney crossed his arms and waited.

  “You know the facts of the case, obviously. Athir repeated his father’s claim—that he never had anything to do with Al Qaeda, he was just a visiting engineer in Istanbul when he was arrested, and had nothing to do with plotting bombs in embassies or train stations or anywhere else. Never on a battlefield in Afghanistan or Iraq, never arrested or watched by the police back in Cairo. Just a decent, educated family man som
ehow caught up in a ridiculous mistake, and treated as a scapegoat by the Turkish government, ignored by his own, lumped together with dubious detainees, and assumed to be part of some big plot.”

  “Mr. Al-Tounsi knew those other men before he arrived in Turkey. He knew them in Cairo. He admitted that. He gave them money. Those are established facts. And also quite beside the point, legally speaking.”

  “Well, everybody knows unsavory people, doesn’t mean you are unsavory. Look, Dad, you’re right, it doesn’t matter whether or not Majid Al-Tounsi played some minor part in a plot to blow up buildings, even unwittingly, or got involved with bad people—loaning money to a dumb friend. I don’t know the man’s conscience. I don’t really care. Regardless of what he did or didn’t do, Majid Al-Tounsi and these guys were sent halfway across the world to the Philippines and have since rotted away in a Naval Base without being charged with any crime for six years, six years, and there’s no end in sight. Al-Tounsi’s shady combat status tribunal claimed that somebody, somewhere—we’re not even allowed to know who—told the military, probably under duress or torture or something, that he gave money to a terrorist, and that’s it! That’s all they seem to have on him, and it’s hardly an established fact. His lawyer wasn’t even given an opportunity to question that information, let alone his absurd ‘enemy combatant’ status. God, he wasn’t even allowed a lawyer at that time. None of this makes any sense, Dad, and you know it. It’s crazy.”

  “There are other legal issues in play, here, Samuel.”

  “I know, I know—the MCA, the DTA, the Suspension Clause, the historical reach of habeas, fine. I don’t want to talk about any of that. You’ve got your opinions, and I respect you. Well, I respect you, but not really your opinion. In this case, I don’t really respect that at all. I think you’re missing the point, colossally, and I can’t just sit back without saying something about it.”

  “And what do you think is the point?”

  “That there is this man, and other men, who are being detained by the United States government without due process. A human being named Majid Al-Tounsi, who is far from you physically, and is completely obscured by all the dry intellectual gymnastics that the nine of you like to perform up there on the bench and in back chambers. He’s an engineer. A father to Athir and three girls. A husband. He’s mixed up in something way bigger than his own innocence or guilt. By his son’s account, he is sweet and generous and kind, and incapable of violence. Not that any of that makes a difference when it comes to due process.”

  Sam reached into the inside pocket of his worn leather jacket and removed a small photograph, which he slid over to his father’s side of the table. In the picture, a tall, middle-aged Arab man with thinning hair stood before the Sphinx in Giza, his gangly arms wrapped around the shoulders of two children, a boy of about 13 and a girl of eight. He wore a light tan jacket, worn slacks, a button-down shirt. His waist was so thin that Rodney suddenly imagined the trouble he must have finding an appropriate belt, at least without having to punch new holes in it himself. His long face, which was faintly pock-marked, and his large crooked smile radiated happiness. The children slouched on either side of him—that weariness of being dragged into a picture with an over-eager parent—but their half-smiles and gleaming eyes also indicated an underlying pleasure, a lack of real resistance. How bad could it be to have their eager father wanting to take his picture with them before the famed Sphinx? Who wrapped his elastic arms around them and pulled them close?

  Samuel pointed to the children. “That’s Athir and his sister Nyla. Taken with their father just before he left for Istanbul, maybe 2001. That was the last time they saw him.”

  Rodney peered at Majid Al-Tounsi’s grinning face, this man who had no idea of what horrors were about to befall him. Or no, perhaps he did have some idea. Perhaps he knew exactly.

  “Athir told me all sorts of details about his father and his mother back in Cairo, the whole extended family. How desperate they are to get him back. His mother’s two jobs, what his sisters are studying in school. I won’t bore you with it all, but I will say this: that kid, Athir—and he’s really just a kid, maybe 20 years old—was so methodical and clear in his legal arguments, so obviously right, that I was left speechless. He wasn’t even asking for Majid to be let out of Subic Bay. He said if his father really did have something to do with an Al Qaeda plot, then he should stay right where he was. Just that this black-hole situation, without declared proof, without charges laid against him, and most importantly no habeas corpus to even begin to examine—”

  Rodney held a trembling palm in front of his son’s face. When Samuel stopped speaking, Rodney lowered his hand. “What exactly do you think you’re doing here?” Anger shook his voice.

  “Here’s the thing, Dad. I almost never see the people in your written opinions. I mean, the ones who are actually affected by your rulings. I see a disconnect between the human beings and the law. So I thought you should see one of them, and learn a bit about him.”

  Rodney leaned forward, his nostrils flaring, his face burning. “You don’t see the people in my opinions? And you think I don’t realize that? You think that would be something new for me to discover, some great revelation?” Although Rodney was tempted to crumple the small photograph, instead he turned into over and pushed it, face down, toward his son. “Every case I hear on that bench has a picture like this one behind it, or a set of pictures, or on occasion a whole class of them. My job, as you damn well know, Samuel, is to rule on the law and to clarify it, to be an impartial judge. You want to inform me that Majid Al-Tounsi has a face? Very well. Show me his face. His child has a face just the same. And my, my, here they all are, so happy, with their bright faces, posed before the Sphinx. Well, the poor souls killed on September 11th had faces, too, and so did their orphaned children. There are countless faces attached to every one of the thousands of petitions that we get on the Court every year. There are so many damn faces before me that I could be looking at, and lamenting, and witnessing, if I let myself, and for what? What? What does that precious picture of yours say that I can possibly address from the bench of the Supreme Court in my limited position? That Majid Al-Tounsi was kind to his family, that he loves his son, that his son loves him? Oh, I believe you. And what does that matter?”

  Rodney sighed. He tried to take a deep breath, to take a pause, but he was too angry to stop his rant now.

  “There are limits to my job, Samuel. Limits that I take very seriously. I am charged with deciding whether or not habeas corpus should be granted to non-citizen petitioners under wartime circumstances as specified by a joint resolution for the Authorization of the Use of Military Force. There are statutes, constitutional clauses and common-law decisions that are quite relevant to this case, but the face of Majid Al-Tounsi is not. How dare you, Samuel Sykes!”

  Rodney pinned his son with his glare, and did not let him go. If Samuel wants so badly to see a face, let him look upon his father’s enraged one, which will not be mocked or taunted or played for a fool. Let him look on this.

  Samuel, nodding slowly, pulled the photograph of Al-Tounsi closer, and slipped it into his pocket. “Sorry,” he whispered.

  “I think you need to learn a thing or two about self-control. That was an absolutely disgusting display of indiscretion and puerility.”

  “Okay!” Samuel squirmed with sheepish embarrassment. “Your job is insanely difficult and complex, and I just belittled it. I’m sorry, believe me.”

  The waitress approached with a large Greek salad and two side plates. She halted, and glanced back and forth between them. Rodney forced himself to smile at her, and only then did the waitress put the food down. He thanked her with as much composure as he could muster, and she left hurriedly. For Samuel to assault him in a restaurant like this, in public—why, that just made it all the worse.

  Rodney let his simmering anger cool. He served two portions of salad, sliding one over to his son. Samuel hung his head and thanked him almost
inaudibly. They ate in silence.

  Samuel pushed his lettuce around on his plate with his fork. “They’re putting a lot of pressure on me over at the paper. There’s a dozen big cases in your Court, I know, but the editors only want stories on Subic Bay. It’s an international situation, Dad. When they run something on Subic—anything about it, suicides, the hunger strike, the CSRTs, the bloody weather in the Philippines—the article’s picked up by half the papers on the planet. And this Al-Tounsi case, Dad, this final habeas test—it’s bigger than the rest. It’s like every government in the world’s that’s got habeas on the books, or can trace its comparable provisions back to the Magna Carta—which means what? every nation but Syria and Iran and North Korea?—they are all looking to this case as some kind of test, to see how far they’ll be able to push their own security and detainee procedures while still claiming to be honest and respectful of their original habeas principles—”

  “Al-Tounsi has nothing to do with the provisions or requirements of other countries.”

  “I know that, but still. It’s being treated at the paper like some kind of international precedent. It’s the legal D-Day. A battle that’s getting hashed out in one courtroom, but for the benefit of the whole world. Let alone what it’ll allow or disallow for the United States in the future. I get a hundred times the hits I usually do on these stories I’m writing about Subic Bay.”

  “I am well aware of the importance of this case.”

  Sam nodded, and took a bite of his salad. “May I say something else?”

  “Of course.”

  “I’m worried about you.”

  Rodney put his fork down and stared into his feta.

  “I have never seen you get as angry as what I just saw. There’s a new fury in you, Dad. I don’t recognize you.”

  “I am not angry.”

  “You are angry, all the time. Will you please tell me why?”