Al-Tounsi

by Anton Piatigorsky

  The scribbling and murmuring increased in the Court Chamber as Justice Rosen announced the Court’s ruling in Al-Tounsi v. Shaw, and then read, in a subdued voice, a small fragment of his plurality opinion. As Gideon spoke, Killian extracted his dissent from his folder. Gideon read as if he was embarrassed by his own work. I would be, too, thought Killian, but certainly not for the same reason.

  When Justice Rosen finished, Killian tapped his pages on the bench, announced his dissent, and began to read. He spoke slowly at first, and lowered the register of his voice—Gloria had once told him that a deep voice added gravitas to what you are saying. He read steadily, with determination and intensity, without caring if anybody was paying attention, and as he did so, he swelled with anger and passion. “Today’s ruling is a travesty for the nation.” His veins pulsed, and his cheeks were hot. “I am one hundred percent certain that this Court and the American people will eventually rue this day, and lament the folly of our reckless decision.”

  When Killian’s clerks returned from lunch they told him that Justice Sykes’s chambers was already being flooded with calls, that all the newspapers and networks were talking about his astonishing concurrence in Al-Tounsi, and only skimming the results of the ruling itself. That was not surprising. But it was hard to imagine how staid old Rodney Sykes was handling that onslaught. He might be cracking, all alone in his office. Killian marched down the hall toward Rodney’s chambers, his second impromptu visit to Sykes in a month.

  Rodney’s wild-eyed and overwhelmed secretaries tried to bar Killian from even announcing his presence—Justice Sykes doesn’t want to see or speak with anyone this morning, they said—but then they came to their senses. A fellow justice stopping by wasn’t the same as other people. A colleague’s visit should at least be reported, and then Rodney could decide for himself if he wanted a visitor. Rodney told them he was delighted to see Killian. Please would they mind sending him in right away?

  In chambers, Justice Sykes was leaning tranquilly against his desk, holding a baby. Killian, blinking hard, must have looked astonished, because Rodney laughed gleefully and bounced the baby in his arms.

  “Well, that is not something I expected to see.”

  “Come in, Justice Quinn!” Rodney was beaming. “Come meet my grandson!”

  One of those portable cribs, like the one Killian’s daughter sometimes brought to his house for dinner, had been erected in the middle of Rodney’s Italian rug, and there were bright-colored stacking toys strewn across the floor, a couple of fuzzy blankets, and a plush green rabbit with big round eyes and buck teeth that looked like it was on drugs. A whitish stain of baby vomit streaked across Rodney’s lapel.

  “This is Reuben. Named in honor of Rebecca.”

  Killian stuck out his pinkie and let the boy’s tiny hand clasp his five fingers around it. “Well, isn’t he a beauty.”

  “Daycare emergency. So I offered.”

  “Today?”

  “Why not? I don’t have any more writing to do. It’s not like I’m going to invite the press in here to interview me.”

  Baby Reuben released a high-pitched wail of indeterminate meaning and smiled at Killian. Well, maybe it was a smile. It might be gas.

  Rodney dandled his grandson: Arroyo’s kid. “Amazing.” Killian shook his head. “None of my kids’ll let me come within ten feet of their spawn until they hit the age of two, let alone babysit. I think they’ve consulted each other, decided the policy as a group. I don’t know what the heck they think I’m going to do—crush ’em, or step on ’em, or mistake them for the pot roast and stick them in the oven.”

  “Oh, it’s hardly better for me.” Rodney’s whole body awkwardly nodded along with the cooing child. “I annoy my daughter to no end. You should see her face when she drops Reuben off, rolling her eyes at my every word, and obviously she can’t wait to get away. Her instructions are endless. The overparenting of this generation. I can never do anything right. Apparently I do not administer a bottle correctly, or a nap. And it seems that one needs a higher degree from a prestigious university in order to change a diaper. My dear daughter treats me as if I were a blubbering idiot, all of which I tolerate with a shocking degree of happiness and joy, because, well, one, she’s speaking to me—”

  “Amen,” laughed Killian.

  “—and two, I’ve been given the extraordinary opportunity of seeing this little man, this boy, this gem, yet again.” Rodney kissed the kid’s forehead.

  “Cassandra must trust you a little. The ones that don’t, don’t leave their kids.”

  “I think she does, yes.” Rodney’s pride was evident. “I really do.”

  They took seats on the couch, and passed the baby back and forth, as they talked about their kids and grandkids. It wasn’t until the end of the conversation, after the baby had fallen asleep in Rodney’s arms, and Killian sensed it was time to go, did he think of addressing Al-Tounsi. Obviously, Rodney was unfazed by all the hubbub going on outside his private chambers. He had taken the right approach to it, to batten down the hatches, to play with his grandson, and wait for the storm to pass.

  “Why did you do it, Rodney?” Killian asked him, suddenly.

  Justice Sykes looked up from his sleeping grandson. “Do what?”

  “Write such an inflammatory concurrence. It’s so radically different from anything you’ve written before, and such a risk on so many levels. It goes so far. Frankly, Rodney, it’s not like you.”

  Rodney took a moment to consider his answer. “A confluence of streams, Killian. I can tell you this: as I was writing my opinion, I found myself thinking, time and again, about a cat I had, Rebecca’s cat, who died last year. Stone was his name. I was shaken by his death. Well, I was upset for an hour or two, but not much after that, and not since, and the truth is I never liked that damn cat much anyway. I don’t think I treated him very well. I never petted him. I forgot to feed him sometimes after Rebecca’s death, and certainly didn’t clean up after him properly. But I was with Stone when he died. As he stopped breathing I thought, I did not want you. I did not like you. But you were my responsibility, and I failed you. You see, I did not have to like that cat. He was bequeathed to me by the circumstance of my wife’s death. He had no one but me; therefore, I had no choice but to care for him. And if I refused to do so, as I did too often, I still could not deny the fact of that refusal. I was aware that his memory would someday haunt me. And he has haunted me. I thought about Stone an absurd amount this term, and eventually I decided: if the well-being of any pet or person is again my responsibility, whether I like it or not, whether I want that burden or not, I will not let him down. I won’t do it. I made a decision to never make the same mistake. And as much as I hoped to keep that resolution quiet, to limit it to my private life, I found that I had no choice but to consider it carefully when I read Majid Al-Tounsi’s petition. I thought of that lost and unseen man sitting in his cell in Subic Bay, and I had no choice.” Rodney smiled. “Crazy, yes?”

  Killian shrugged. “No crazier than anything else.”

  “Well, I am not entirely sure if I’m ready for the consequences of what I’ve unleashed.”

  “Nah. You are.”

  Killian returned to his chambers. In the larger room, one of his clerks was fixed to the news reports on TV—all about Al-Tounsi—but two other clerks were watching snippets from a recent Democratic presidential debate on a laptop. He hovered behind them, listening to the speeches given by the last two candidates left in the race. One was a second-term senator from a northern state, and also the former First Lady of the United States. The other candidate, a freshman senator from another northern state, was a skinny black man. Either way, the country would have itself a first with this nomination, and Heaven knows Americans loved their firsts. These two dueling northern senators of limited electoral experience debated their marginally contrary approaches to how they would revitalize payments for health care services, all the while bickering and interrupting each other.


  “They’re saying the exact same thing!” cried Killian.

  “Uh-huh,” said a like-minded clerk, “and all of it’s bunk.”

  Blasted Democrats: may they wear each other out. Their debate didn’t really matter anyway, as the skinny black senator had already won the party’s nomination with all his silver-tongued rhetoric. There is no black America, there is no white America, there is only the United States of America. He had a real talent for slicing the emotional jugular, that one, like Williams Jennings Bryan reincarnated, except unlike Bryan, this guy was going to win the presidency. The election cycle of 2008 wanted a smooth-talking northern Democrat to steal the whole shebang: no doubt about it. The prospect of a bona fide liberal, Democratic presidency, launched in a mere six months, made Killian’s shoulders sag.

  He lingered before the screen. It seemed inevitable now that all his recent good fortune and happiness would come crashing down. He could hold Samuel Sykes at bay for only so long, or if not him, another inquisitive reporter, and then Killian would be forced to take the position he had advocated in Katherine’s office all those months ago. He would have to forgo his Miranda rights, refuse to weasel out of wrongdoing and exalt in his own guilt. His career would take a big hit. And soon after that Bernhard Davidson would retire, and then Kolmann and Katsakis, and with this new President in office appointing justices of a liberal persuasion to the bench, Quinn’s precious status as the go-to majority justice of the United States Supreme Court was sure to be short-lived. Yes, this present term was his peak, and in particular the Wallace decision, announced tomorrow. Tomorrow was the day Killian Quinn’s power would crest, and thus would begin his slow, inevitable descent. He closed his eyes.

  “Ah, hell,” he told his clerks. “Wake me when it’s over.”

  AFTERWORD

  THE CONCURRING OPINION OF JUSTICE RODNEY SYKES

  Cite as: 554 U.S. (2008)

  SYKES, J., concurring

  SUPREME COURT OF THE UNITED STATES

  No. 07-1172

  MAJID AL-TOUNSI, ET AL., PETITIONERS V. MARK LEWIS SHAW, PRESIDENT OF THE UNITED STATES

  ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

  [June 25, 2008]

  JUSTICE SYKES, concurring in part.

  I do not join the plurality’s full opinion today, except for majority sections V (A, B and C) and VI (A and B), holding that the mandated procedures of the Detainee Treatment Act (DTA) and Military Commissions Act (MCA) do not meet the threshold for an adequate habeas substitute, and remanding the case to the United States Court of Appeals for the District of Columbia Circuit as instructed. Neither do I join JUSTICE QUINN’s full dissent, except for majority sections II (A and B). I concur with the plurality’s holding that petitioners are granted the privilege of habeas corpus, although I do so on separate grounds.

  In what is now a prelude to this case, we held in Bayat v. Shaw, 542 U.S. 481 (2004), that statutory habeas jurisdiction extends to foreign nationals detained by the United States in Subic Bay for the purpose of “determining the validity of the executive’s indefinite imprisonment,” id., at 491. Bayat turned on questions of statutory jurisdiction that have since been rendered moot by subsequent legislation, see Military Commissions Act of 2006 (MCA), 28 U.S.C.A § 2241(e) (Supp. 2007), and thus do not apply. Therefore JUSTICE QUINN is correct in highlighting the dramatic scope and novelty of today’s holding. See post, at 1. Here, for the first time in our history, constitutional habeas jurisdiction is granted to aliens imprisoned by the military in regions outside national sovereignty. Nothing in the Constitution, founding-era precedents, or subsequent common law indicates that an alien prisoner held abroad under any comparable standard would have received the writ. Id., at 17. Thus, without the introduction of a novel doctrine or standard, court intervention is outrageous and well beyond our jurisdiction.

  I

  I have joined an odd pairing of two majority opinions, sections V (A, B, and C) and VI (A and B) of JUSTICE ROSEN’s, and section II (A and B) of JUSTICE QUINN’s, which taken together serve as a necessary prelude to my concurrence, holding for petitioners. The Court, with JUSTICE QUINN, finds no conflict between the MCA and the Suspension Clause. Ante, at 7. Aliens abroad do not hold rights under the Constitution, and therefore the MCA does not run afoul of separation of powers principles. The relevant statute, MCA § 7, 28 U.S.C.A. § 2241(e) (Supp. 2007), remains intact: Congress may lawfully prohibit habeas jurisdiction for the detainees in Subic Bay.

  In addition, the Court, with JUSTICE QUINN, holds that all “functional” tests for an extraterritorial reach of the writ, which JUSTICE ROSEN draws from precedents, are incorrect. See post, at 34, and ante, at 17. De jure sovereignty remains the only relevant factor in determining a purely jurisdictional question. I do not need to repeat JUSTICE QUINN’s lengthy, careful analysis of the Insular Cases, Reid v. Covert, 351 U.S. 487 (1956) and our holding precedent, Johnson v. Eisentrager, 339 U.S. 763 (1950), except to emphasize how this string of cases, and Eisentrager in particular, underscores the bright-line test for a jurisdictional issue: sovereignty of an applicable territory. JUSTICE ROSEN claims sovereignty is “an easily misused and unnecessarily vague word,” ante, at 26, quoting 2 Avigdor’s Condensed Foreign Relations Law of the United States, Vol. 3, § 869, p. 54 (1992). It is a definition that intends to destabilize the term, positing an open-ended and highly partisan notion of sovereignty, strategically selected from a misleading document, and allowing the introduction of functional tests derived from precedent, ante, at 29. But by no means is sovereignty that mysterious or hard to grasp. Sovereignty is “the exercise of dominion or power,” see Webster’s New International Dictionary 2406 (2nd Ed. 1934) (“sovereignty”, definition 3). If sovereignty cannot be understood in the dictionary’s plain language, supra, we have problems far more tangled than those arising in Subic Bay, and our docket will soon be opened to countless unresolvable and unnecessary questions. We should know from our past experience with problematic terms, such as obscenity, Roth v. United States, 354 U.S. 476 (1957); Jacobellis v. Ohio, 378 U.S. 184 (1964), inter alia, that we should think twice before disturbing our already stable definitions.

  We need not debate the nuances of de facto sovereignty here. Both opinions and dissents agree that Subic Bay is not formally part of the sovereign United States; it remains under the ownership of the Philippines. De jure sovereignty is not an active question, and we should not make it so. It is worth re-emphasizing that our precedent Eisentrager did not grant habeas to foreign soldiers detained in Landsburg Prison for the express reason that the prison lay outside de jure sovereignty of the United States. “At no relevant time were [they] within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.” 339 U.S. at 778. The rule here could not be more clear or definitive. No applicable “functional” tests can ever apply constitutional rights to extraterritorial foreign nationals, because formal sovereignty excludes them by definition. Sovereignty means precisely what it says. So must Eisentrager’s holding.

  II

  Constitutional habeas jurisdiction is strictly disallowed for petitioners by the MCA, supra. Any functional considerations of the writ, or any practical applications, do not overcome a jurisdictional prohibition. The plurality’s specious opinion to grant is therefore a covert subversion of established law, although it is bold indeed to witness how that blatant action is denied. The law, here, is not as malleable as clay; one cannot mold it to this side or that with a little deft massage. It remains as solid as a brick. That rigidity, however, presents us with a serious conundrum: the law is also wrong.

  There are exceedingly rare cases when the overt subversion of established law is warranted. Such cases arise only under the most extreme circumstances, similar in physics to when conditions of relativity render Newtonian laws moot. It should go
without saying that when a sworn justice willfully subverts the law, it is a grave and serious matter. Any decision to do so must be interrogated with strictest scrutiny and frank skepticism. The plurality, in contrast, has hidden their radical subversion within the common law itself, by sneaking “functional tests” and “practical considerations” into cases, supra, notwithstanding our precedents to the contrary. This is dangerous reasoning, and does nothing to establish guidelines for subsequent cases, as to when and where an overt subversion of established law might be warranted. We are left thinking, with JUSTICE QUINN, that the plurality’s holding is based solely on the preferences and whims of unelected federal justices. Post, at 17.

  The conditions that justify a subversion of established law must be extreme, and rely in part on gut feelings—a discomfort or queasiness that is perhaps impossible to express with pinpoint accuracy. Nonetheless, those conditions must be quantified. They can be done so as a function of two independent variables: first, the acute vulnerability of petitioners (or respondents, in some cases); and second, the exclusivity of the judge’s ability to respond to that vulnerability. With these variables in mind, a good faith doctrine of subversion can indeed be established: when petitioners or respondents cross the tipping point into a perpetual state of acute vulnerability—occurring when (a) they are rendered subject in entirety to laws or holdings that severely restrict life or liberty, and (b) when every available state or federal court has denied jurisdiction, and therefore cannot apply the appropriate level of judicial review to those laws or holdings—and, in addition, when the judge in question is singled out by his or her exclusive ability, both as a representative of the law and as an individual, to respond to that severe restriction, then the judge must hear the plea of the vulnerable party, and subvert established law, in the slightest manner possible, to alleviate the conditions of the severe restriction. In short, the human response ability of adjudicators is a necessary precondition to the law’s validity. Without the essential ingredient of human responsiveness, i.e., the naked openness of a judge willing to take personal responsibility for his or her holding, the law that he or she adjudicates has no legitimacy.