Al-Tounsi

by Anton Piatigorsky

  It was nearly 11 now, and for the first time in hours Rodney had stopped moving. His vision felt compromised, spotted, and overexposed. Darkness pressed in on the edges of his retinas. He was light-headed. He would need to find a carton of orange juice, perhaps a Pepsi. He felt in some danger of fainting.

  Thurgood Marshall. So ornery and unpleasant on the one occasion when Rodney had met him. The man was dying then, of course. He had just had a stroke, and had lost any desire to behave with political tact. He didn’t even care for himself physically anymore, as evinced by his peeling dry skin, his bushy mustache and unshaved chin. Glaring at Rodney with watery, sad eyes through his thick glasses, Justice Marshall grumbled that Rodney was the “wrong kind of negro” for promotion to the High Court. In a news conference earlier, he warned the rest of the country that they should all watch out because “there is no difference between a snake white or black—both’ll bite ya.” He castigated Rodney for his position was in Kosterman. Yes, Thurgood Marshall was stuck in that old way of thinking about affirmative action—that African-Americans needed the state to break the law against discrimination in their favor in order to right historical wrongs. Dr. King, of course, Rodney had never met. He would have met him, certainly, had the man lived. Rodney would have sat down in chambers with the elderly minister, and listened to Dr. King’s recommendations on how the law should be adjudicated. What would the great Martin Luther King have told him? Rodney tried to imagine it as he looked out at the half-frozen reflecting pool. He might have quoted Thoreau’s Civil Disobedience in his most self-righteous voice. May I suggest you read that text, Justice Sykes, and consider when and how a decent man must break the law? It had been decades since Rodney had perused any Thoreau. Not since first term of Berkeley undergrad, precisely.

  “Excuse me.”

  A middle-aged African-American couple was standing beside Rodney, wide-eyed, stunned.

  “I’m sorry to bother you, but are you Rodney Sykes?” asked the mustachioed man, who wore ear warmers, boots and a thick parka.

  Rodney smiled at him. “In the flesh.”

  “Oh my.” The diminutive woman put her hand up to her lips.

  “Well, I cannot believe it.” The man laughed joyously. “I just cannot.”

  “And where are you fine folks from?”

  “Akron, Ohio,” said the woman. “Akron. In Ohio.”

  “I have heard of it, believe me. Welcome to Washington, D.C. Magnificent city, isn’t it? Even in the winter.”

  “Lisa!” The man glanced over his shoulder. “Lisa, come here!”

  A girl of about ten in a puffy yellow jacket, who had been weaving back and forth between the memorial’s tall, round columns, lost in some game, now skipped toward her parents and stopped beside them. She nestled bashfully into her father’s side.

  “This is my daughter.” He put his arm around her. “This is Lisa.”

  “Hello, Lisa.” Rodney’s dizziness made the girl seem to wobble on the marble floor.

  “Lisa, this man here is Rodney Sykes. He’s a great American. A justice of the United States Supreme Court.”

  The little girl obviously had no idea what a Justice was, and was not especially impressed by the stranger that her parents seemed to hold in such reverence and awe.

  “How do you do.” Rodney stuck out his hand to shake the girl’s, and Lisa offered her limp hand in return. “A pleasure to meet you.” Perhaps, someday, she would remember this encounter, when she was older and realized who that elderly stranger was. Or perhaps not. Probably she would never care. But what did it matter, if this moment was meaningless to her? He released her hand, but remained standing before the family.

  “We had a long weekend.” The mother was still looking at him incredulously. “We just decided to drive to Washington.”

  “We never, ever expected this,” said her husband. “We’re lawyers, see. To meet Rodney Sykes!”

  Rodney’s stomach ached and churned, and his head spun. A kind and engaged couple, with their beautiful daughter—these visitors from Ohio. The little girl reminded Rodney of Cassandra. He smiled at her. Oh, but it was exhausting to be so open with these people. He needed to end this encounter, and he hoped that no other loitering tourists had overheard their conversation. He did not want to repeat the scene with another family, and another after them. He wanted to get a drink, and keep walking, and be alone.

  “The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States,” called the Marshal, as Rodney slipped through the red curtain at the back of the court chamber and took his seat on the raised bench. “Oyez, Oyez, Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!”

  Chief Justice Eberly leaned into his microphone and intoned with his gravelly voice, “We’ll hear argument this morning in case 06-1172, Al-Tounsi v. Shaw. Mr. Silver.”

  Niel Silver, attorney for the petitioners, stepped to the lectern, ten feet before the centrally positioned Chief Justice, and began his argument slowly, enunciating each word. It was a technique Mr. Silver had mastered over his 17 cases argued before the Court. He was an old pro, never trapped, and rarely confused by the often-aggressive questioning.

  “Mr. Chief Justice, and may it please the Court.” The lawyer’s bald head gleamed in the light. “Majid Al-Tounsi and accompanying petitioners have two strikes against them. First, they have been detained in Subic Bay for six long years and counting, without charges laid, and without any clear declaration of the grounds for their detentions. Second, they have been denied a fair forum to challenge their imprisonment, and under the present ruling of the D.C. Circuit, they will continue to be denied any forum.”

  Eberly interrupted with a first loaded question: What about the DTA procedures passed by Congress? Didn’t we rule in Noori that they were a valid forum for U.S. citizens? Mr. Silver did not think so, and he answered the Chief admirably. That only led to other, more detailed lines of inquiry. Justice Kolmann asked why the Court should consider the merits of the procedures at all, instead of just declaring the petitioners’ constitutional right to habeas corpus and then remanding the case to the D.C. Circuit. Bryce followed by pressing him on the relevance of the length of detentions: shouldn’t any question of constitutional validity be the same if the detainees had been held for one day instead of six years? Rodney listened and sipped his water. He preferred to limit his own intrusions to no more than one or two questions per argument, as most everything he needed to know was already written in the briefs. No need to grandstand. Justice Quinn, to Rodney’s right, squirmed and shifted until at last he found his perfect moment to attack.

  “So what you’re claiming is a common-law constitutional right to habeas corpus independent of statute.”

  “That’s correct, Justice Quinn.”

  “But where, where—anywhere in the history of the United States, can you find me a case—or, no, I’ll go further—anywhere in the history of the British Empire before the Constitution, can you find me a case granting habeas to an alien captured and held outside the sovereign territory of a nation?”

  “There are several.”

  “Oh, I doubt that very much.”

  “There are, Justice Quinn.”

  “I’d like to see the proof. Please, counsel, show me.”

  Someone coughed in the packed Court chamber. Rodney pulled his attention away from Mr. Silver, who was now describing an exemplary case to Justice Quinn. Len Stellick, the youthful Solicitor General, dressed in the long morning coat that Court tradition required, sat at the Respondents’ table, absently playing with one of the ceremonial quill pens that was left for each arguing lawyer by the Court staff. In distant rows, men and women in stiff naval officers’ uniforms, black with gold buttons, brilliant white hats, were interspersed with senators—Missouri’s Jay Hackenbert, Claire Bessek of
Maine, Lionel Mahoney from Illinois. Yes, an exceptional case, with international implications. Because the arguing attorneys were positioned so close to the bench, with the other attending lawyers seated at tables just behind them, Rodney often forgot about this larger audience, let alone the reporters in the press section and the public at large. On the far side of the chamber, Samuel sat in that recessed press box, which was framed by the room’s tall rounded columns. He was scribbling his notes, probably about Quinn shooting down Niel Silver’s attempts at analogous cases. Quinn and his theatrics always made for good press.

  Samuel had matured into quite a fine young journalist. There is an open contradiction between the amiable and kind father portrayed by Athir, and the calculating fundraiser and terrorist described by the government. But unless Majid Al-Tounsi is granted a constitutional right to habeas corpus, there will be no way of telling which of those portraits is more accurate. Samuel’s succinct article in the Post verged on an opinion piece, more spirited and definitive than his usual writing. He must be finding himself, his beliefs, and standing behind those convictions with fresh confidence. Majid’s picture at the Sphinx with his children appeared on the front page. Samuel must have convinced the editor to take that risk, which couldn’t have been easy to do.

  “Nope.” Justice Quinn scowled and shook his head. “That case doesn’t hold either. The courts in Swedish Sailors may not have been inside the Crown’s dominion but they were certainly part of sovereign territory. I mean, come on, Mr. Silver, is that the best you got? You’re leaving me wanting.”

  After the laughter receded, Niel Silver tried with yet another case that Quinn shot down. There was a brief lull, which seemed to Rodney like the ripe opportunity to ask his only pressing question. He leaned into his microphone. “Section 1007(f) of the MCA claims that the United States does not exercise sovereignty over the Naval Base at Subic Bay. That is the express determination of the political branches. How can we rule on the merits of habeas given that fact?”

  “Actually, I agree with Congress on that,” answered Mr. Silver. “Subic Bay is not technically in sovereign U.S. territory. However, Justice Sykes, I don’t think sovereignty should be seen as the determining factor here. For one, at common-law sovereignty wasn’t even the right test—just look to what Lord Swansea expressed in Candeleigh. Also, we have to consider that sovereignty had a looser definition back in 1789. So we have some flexibility, here, about what the term means in this case.”

  “The definition is quite clear,” countered Rodney.

  “Today it is, Justice Sykes. Yes. But our present situation—in which the United States has quote unquote complete jurisdiction over the base—would have meant sovereignty at common law. The relevant question back then was: is this individual a subject of the crown? Not does he presently reside within the sovereign territory of the crown?”

  Rodney sat back against his chair, smoldering and embarrassed. Stupid to raise that issue. This experienced and knowledgeable lawyer had offered the precise answer that Rodney should have dreaded, had he been better prepared, and more clear-headed. Mr. Silver had successfully opened the definition of sovereignty by playing with its historical limits, and had established a question where a clean answer should have remained. Rodney tucked his hands into his lap. He would contain himself for the rest of this argument. No more interruptions. Let the others hash it out. He would sit and listen. Nothing out, nothing in.

  Rodney suddenly felt absurd. Who did he think he was, resting content and secure on the high mahogany bench in Taft’s ornate Temple of Justice, the law his impenetrable armor, the dictionary definition of sovereignty his gleaming shield? What did that word sovereign really mean? He had looked it up before argument, just to make sure: Supreme power or authority. Ability to self-govern. The contained and absolute leader. If Subic Bay was sovereign, then nothing could touch it; the law would never reach. Did Rodney think himself sovereign as well? Did he really believe that he was so independent that nothing could reach him?

  “Mr. Silver.” Justice Arroyo spoke from the junior-most Justice’s seat at the far end of the bench. “Any declaration we might make about sovereignty, subjugation, or jurisdiction in Subic Bay would have a significant impact on international relations. Let me remind you that it is considered an act of war for one nation to assert jurisdiction over another’s sovereign territory. It is the very definition of war. But that is exactly what you’re asking the United States to do.”

  That boor should really get over himself. As if the Philippine government hadn’t realized that it had lost effective control of Subic Bay a hundred years ago when the United States built its base. As if granting habeas to the trapped detainees in Subic would be the sudden shock that precipitated war between the world’s only super-power and a third-world nation. As if the Philippine people would be anything other than pleased with a liberal ruling on this Court. What a manipulative bully, that Emmanuel Arroyo.

  But then Rodney realized: both he and Justice Arroyo had reached the same conclusion. Was Arroyo’s argument, in substance, any different from his own?

  Rodney removed his glasses and rubbed his eyes. Niel Silver was addressing Arroyo’s question, but Rodney didn’t listen to his answer. He wanted to shut out Niel Silver and the petitioner’s argument, wanted to cover his ears with his palms, blot the entire case of Al-Tounsi v. Shaw from his mind.

  Mr. Silver’s voice was insistent and pleading—and then suddenly, unexpectedly, it made Rodney think about Stone, his neglected cat, mewing and scratching at the side of Rodney’s bed each morning, calling out for attention, for some food and care. Calling out for Rodney.

  Timothy’s letters from Vietnam, all those years ago, had also been pleas for Rodney’s attention. Whenever he received one of Timothy’s envelopes, packed with shocking stories of violent combat and stifling jungle heat, his pained confessions of drug usage—both his own and the other soldiers’—and descriptions of his confusion and feelings of loss, Rodney was quick to respond with a letter of his own, full of encouragement, support, love and advice. Rodney took great care to write his brother eloquent letters that were as long and substantive as Timothy’s—because what else did Timothy have? No one else could hear his brother’s desperate appeal from the other side of the world. Of course, Rodney could do nothing to alleviate his brother’s suffering, but still Timothy needed him. He needed to hear Rodney’s voice in those written replies, needed to know his own pain had been heard by the one person who loved him unconditionally. Rodney understood Timothy’s call, and he had never once failed to respond.

  But all those loving letters to Timothy had amounted to nothing.

  Rodney’s throat caught. Timothy. Certainly it didn’t feel like 38 years since that awful morning in 1969 when the marine sergeant solemnly knocked on the door of his mother’s tiny house in Oakland. Killed in Vietnam, a fierce battle in the A Shau valley near the border with Laos. Rodney sobbed so ferociously on the drive down Telegraph from his Berkeley dorm, just after his mother’s call, that he almost steered his old Datsun into a pole. Sobbing, and sitting alone on Tim’s twin bed in the humble green bedroom they had shared for their entire childhood, gazing out their warped window past the gnarled old rose vines onto that stunted lemon tree in their backyard. Never before and never since had he cried like that. One night, when they were kids, lying in their neighboring beds unable to sleep, Timothy had asked why that tree had never issued more than a handful of wrinkled, juiceless fruits. How did Rodney answer? With pure nonsense, no doubt, but spoken in his most authoritative and paternal tone. Anything to give that beautiful brother of his a bit of stability in their fragile, unhappy home.

  Rodney wanted so badly to be able to picture Timothy in his mind. But he hadn’t had his photographs out in decades. He had banished them from his walls, his desks, his offices.

  He could see Majid Al-Tounsi perfectly, though. The smiling, skinny, well-dressed man, standing with two children in the sand by the Sphinx, the Egyptian cit
izen with a Tunisian name, who might or might not be a terrorist. Yellowing teeth, dry hair, pock-marked face. Majid Al-Tounsi, precisely—an individual, held hostage, calling to be brought forth and witnessed by a judge—you shall have my body—albeit in the distilled voice of legal argument. A call executed though briefs and hearings, through his federal court case and its subsequent appeals. Yes, right here, this was the faint trace of Al-Tounsi’s plea, with just enough power in it to infect Niel Silver’s monotonous legalese with passion. Right now. This present argument was the final, personal appeal of that particular man, that face in the photograph—who was not physically present in this illustrious Supreme Court, who might never be in the room where his fate was determined, and whom Rodney would never meet.