Al-Tounsi

by Anton Piatigorsky

  A doctrine of subversion is as radical as it sounds, and therefore it must only be applied under the most extreme circumstances, when the rule of law has failed to deliver its promise of justice. It should go without saying that any past, present or future access to due process would be enough to prevent a petitioner, or respondent, from slipping into a state of acute vulnerability. If there is ever any reasonable and honest means of avoiding the doctrine, it must be avoided. Misused, the doctrine of subversion could be one of the greatest threats to the rule of law. There can be no exceptions to the exception. Therefore, we must strictly examine the facts of Al-Tounsi to determine if this case falls within that doctrine’s rigorous confines.

  A

  There are two parts to our present examination. First, we must establish with strict scrutiny whether or not petitioners remain in a perpetual state of acute vulnerability.

  Regardless of any crimes that they may or may not have committed, petitioners have been held by the U.S. military in Subic Bay without charge for six years, and will continue to be held without foreseeable end, and without any meaningful recourse to challenge their detentions. The government argues that the DTA-MCA mandated CSRT procedures offer a meaningful recourse, but the Court’s plurality opinion, which I have joined for majority sections V (A, B, and C), ante, at 42–64, offers a lengthy and convincing analysis of how those procedures are deficient. Although said procedures are not legally required to act as an adequate substitute for habeas, their deficiencies are nonetheless astonishing and severe. They offer no reasonable mechanism for any inappropriately held detainee to challenge his detention, let alone earn his release, ante, at 45, 47, 48–50, 53, 55. Multiple amici agree. See Brief for Former Federal Judges as Amici Curiæ; Brief for Retired Military Officers as Amici Curiæ; Brief for American Bar Association as Amici Curiæ; Brief for American Civil Liberties and Public Justice as Amici Curiæ; Brief for United Nations High Commissioner for Human Rights as Amici Curiæ; Brief for Professors of Constitutional Law and Federal Jurisdiction as Amici Curiæ, inter alia. As petitioners are barred by statute from every state and federal court, and thus do not have any habeas jurisdiction, they continue to be served only by the grossly inadequate DTA-MCA mandated procedures. They have, under closest examination, entered into a perpetual state of acute vulnerability: trapped and confined for an indeterminate period without charges laid against them.

  This did not have to be so. Had the detainees been treated as prisoners of war under the Geneva Conventions, or had they been served by court-martials, conducted under the strict guidelines of the Uniform Code of Military Justice, we would have had ample doubts about their having entered into a perpetual state of acute vulnerability. Had Congress or the executive established by statute or fiat adequate military commissions with flexible recourse, again the petitioners’ perpetual state of acute vulnerability would be denied. See ante, at 57–59. Had they wished, the political branches could have arrived at any number of reasonable alternatives that would have avoided the creation of a legal black hole. It would have been better had they done so.

  B

  Thus we come to the second part of our present examination. To invoke the doctrine of subversion, we must establish whether or not the judge or judges hearing the petitioner’s plea have been singled out, as representative(s) of the law and as individual(s), to respond to the severe restriction. This determination depends in large part on the exhaustion of appeals for habeas questions. The case has reached this Court of Appeals after the establishment of the MCA, which has prohibited all levels of federal courts from hearing the detainees’ pleas, except for the DTA review process in the Court of Appeals, see DTA § 1005(e). That process merely allows that particular court to determine

  “(i) whether the status determinations of the [CSRT] … were consistent with the standards and procedures specified by the Secretary of Defense … and (ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” § 1005(e)(2)(c), 199 stat. 2742.

  As the Court of Appeal is prohibited from addressing any other questions pertaining to petitioners’ detentions, ante 47, the DTA review process cannot be considered an alternative to this Court’s consideration of habeas jurisdiction. Thus today’s case is the final foreseeable opportunity for petitioners to access a review procedure pertaining to their detentions. We are the court of last resort, and are therefore singled out, as representatives of the law, for our ability to address the legal question.

  It is obvious that if petitioners were U.S. citizens or foreign nationals held within our territorial sovereignty, we would have an array of legal arguments at our disposal, including infringement of the fundamental right to habeas or substitute, as protected by the Due Process Clause of the Fourteenth Amendment. We might legally invalidate MCA § 7, 28 U.S.C.A § 2241(e) (Supp. 2007), and thus allow the Court of Appeals to undertake meaningful review. But as petitioners have no recourse whatsoever to fundamental rights under the Constitution, our hands are tied. We have no legal doctrine to support us, no rule of law underpinning a holding to grant habeas jurisdiction. We have been strictly prohibited from acting in our capacity as representatives of the law. Thus, in addition to our capacity as such representatives, we have been isolated as the only individuals left to hear the petitioners’ pleas. Our situation fulfills the second criterion for subverting established law: the judge(s) on this Court have been singled out both as representatives of the law and as individuals by our exclusive ability to respond to the perpetual, acute vulnerability of petitioners. If we do not respond, here and now, no one will.

  So it is both as a Justice of the United States Supreme Court and as an individual citizen that I, Rodney Sykes, observe the severe and unwarranted restrictions laid upon petitioners, and say: this is not just. As representatives of the law, we can claim that our duties and the limitations of our power prevent us from acting on several grounds. Two reasonable arguments with such claims are forwarded by dissents. See post. However, those legal restrictions cannot prevent us, as conscious, humane citizens, from understanding that the responsibility for petitioners’ acute vulnerability nonetheless remains with us, the individuals chosen by law to hear their plea.

  C

  JUSTICE QUINN argues that granting writs of habeas corpus to the petitioners is not only illegal, but also an onerous burden on our nation’s liberty, by severely endangering us in a time of war, and exposing classified information to public scrutiny. See post, at 25. These are legitimate concerns that must be weighed seriously when determining whether or not to act as individuals under the doctrine of subversion. Nonetheless, in majority sections which I have joined, the Court outlines the manifold protections and limitations that the Court of Appeals and the executive must institute to prevent any unnecessary or damaging exposure of sensitive information. No risk need ensue from hearing petitioners’ habeas appeals in federal court, and we can safely determine that JUSTICE QUINN’s security concerns are unfounded. JUSTICE QUINN has also argued that unelected judges are not qualified to second-guess clear determinations made by political branches. See post, at 21. Although we are indeed much less qualified, neither Congress nor the executive has properly balanced their solemn responsibility to national security with their equal responsibility to uphold the human (if not constitutional) rights of those in their care, and therefore the responsibility for the petitioners has awkwardly fallen to us, the branch least qualified to balance petitioners’ needs with those of national safety. This is an unfortunate and painful fact. But our limited qualifications do not present an overwhelming barrier to our greater responsibility to act under the present circumstance.

  III

  “Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience, then? I think that we should be men first, and subjects afterward. It i
s not desirable to cultivate a respect for the law, so much as for the right … If injustice … is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law. Let your life be a counter friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.”

  —Henry David Thoreau,

  Civil Disobedience, 1849

  There have been rare instances in U.S. history when the subversion of established law has been deemed appropriate and even celebrated by the public at large, not least of which was the revolution from England that established our nation in 1776. The series of non-violent Civil Rights protests led by Dr. Martin Luther King, originating in Montgomery, Alabama, in 1955, and then spreading throughout the southern United States in subsequent years, was another such instance. By and large, the American people have collectively decided that Dr. King’s subversion of established law was warranted, given the grossly unjust circumstances afflicting African-Americans at that time, and have gone so far as to create a national holiday in honor of Dr. King and his work. The principled, morally justified subversion of law is an American tradition at least as old as our nation itself, and was articulated most eloquently by Henry David Thoreau in the above quotation, which served as a source of inspiration for Dr. King.

  Although today’s action is far less monumental than the preceding examples, it is executed in the same spirit. After strictly examining the facts of Al-Tounsi v. Shaw, and my own position within that case, I have determined that our predicament falls within the exceedingly rare and rigorous confines required to invoke the doctrine of subversion. Therefore I invoke it, and grant habeas jurisdiction to petitioners, concurring with the plurality.

  Our decision today is deeply unfortunate. There is nothing more taboo for a sworn justice than to willfully subvert established law. Unfortunately, I see no other choice. The law in this case is clear and constitutionally valid, but opposed to justice. I have too much respect for the integrity of our legal process and for the larger probity of our legal code to massage or manipulate any single law to accommodate my desires, and so I will not do it, even when the gravest need presents itself, as it does here. If I do not invoke the doctrine of subversion, I am entirely unable to reconcile my sworn, twin obligations to “faithfully and impartially discharge and perform all the duties incumbent upon me as a Justice under the Constitution and laws of the United States” and to “administer justice without respect to persons.” See 28 U.S.C. § 453, oath of federal justices and judges, italics mine. I took that oath with pride and commitment, and I continue to uphold it today. The other branches of government have not fulfilled their sworn responsibilities. That does not mean I must ignore mine.

  ACKNOWLEDGMENTS

  I’m grateful for the help of many people as I researched and wrote this book: Richard Abel, Justice Rosalie Abella, Chris Abraham, Alan Ackerman, Jill Bernstein, Brianna Caryll, Shantona Chaudhury, Brian Current, Jonathan Farber, Andrew Ferguson, Dan Garodnick, Kim Hawkins, Shayana Kadidal, Pasha Malla, Les Nicholson, Craig Offman, Paul Pape, Ryan Peck, Auran Piatigosky, Joram and Lona Piatigorsky, Sven Poysa, Allen Pusey, Jonathan Rosenstein, Hanna Rosin, Justice Marshall Rothstein, Zoe Segal-Reichlin, Larry Shepley, Simon Stern, Kristen Thomson, Tonje Vetleseter, Martha Magor Webb, Diana Winters, and a large number of other anonymous sources.

  I am heavily indebted to a huge number of books and articles, most notably by Jill Abramson, Scott Armstrong, Robert Barnes, Emily Bazelon, Joan Biskupic, Erwin Chemerinsky, Felix S. Cohen, David Cole, Lyle Denniston, Ronald Dworkin, Noah Feldman, Robert A. Ferguson, Karen J. Greenberg, Linda Greenhouse, Stephanie Guitton, Henry Hansmann, Peter Charles Hoffer, Williamjames Hull Hoffer, N. E. H. Hull, Peter Irons, Kenneth Jost, George Kannar, Duncan Kennedy, Reinier Kraakman, Anthony Lewis, Dahlia Lithwick, Adam Liptak, Jonathan Mahler, Desmond Manderson, Jane Mayer, Richard Posner, Roscoe Pound, Jeffery Rosen, Michael J. Sandel, Mohamedou Ould Slahi, Ronald P. Sokol, Seth Stern, Cass Sunstein, Jill Bolte Taylor, Jeffrey Toobin, Nina Totenberg, Laurence Tribe, Melvin I. Urofsky, Jeremy Waldron, Artemus Ward, David Weiden, Stephen Wermiel, James Boyd White, Bob Woodward, and Andy Worthington. I relied on the briefs, opinions, dissents and transcripts from Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and especially Boumediene v. Bush (2008) to fashion my fictional string of “Subic Bay” cases, ending with Al-Tounsi v. Shaw. Thank you to all the lawyers, judges, and organizations that worked on those cases.

  In addition to the hundreds of opinions by Supreme Court justices, past and present, that I studied, I am particularly thankful for the justices’ popular books and autobiographies, particularly those written by Justices Stephen Breyer, Benjamin Cardozo, Sandra Day O’Connor, William Rehnquist, Antonin Scalia, John Paul Stevens, and Clarence Thomas. Two lines in this novel (on pages 58 and 121) are adapted from writings by Justices John Paul Stevens (in Boumediene v. Bush) and Antonin Scalia (in Grutter v. Bollinger).

  I am deeply grateful that the publisher of Ankerwycke, Jon Malysiak, championed this novel, offering tireless support and excellent editorial assistance. Thank you, also, to Elmarie Jara, Jill Nuppenau, and everyone at Ankerwycke.

  I could never have written Al-Tounsi without the extraordinary help, wisdom and friendship of three people.

  David Sandomierski guided my entire legal education. With great generosity, he offered me detailed and clear explanations, extensive reading recommendations, a tour of the Canadian Supreme Court (including introductions to several Canadian Justices), teaching opportunities, and hours of patient conversation. David’s profound insight into the history, function, and use of law was essential.

  Bethany Gibson offered me multiple careful, astute readings of this novel. Her honesty, curiosity, and discerning judgment were crucial to my writing process from the early partial (and abandoned) drafts to the penultimate version.

  Ava Roth was a vital and astute judge of character—quite literally. Through years of conversation, she gave invaluable and subtle insight into the characters, plot, and themes, often as they were taking form. I took Ava’s brilliant ideas and recommendations throughout the process. Her help was indispensable; the novel would not exist without her guidance.

  I love you Ava, Sivan, Dalia, Reuben. Thank you for your love and support as I ventured down this rabbit hole.

  Cover design by Elmarie Jara/ABA Design.

  Interior design by Betsy Kulak/ABA Design.

  This is a work of fiction. Names, characters, places, and events either are the product of the author’s imagination or are used fictitiously. Any resemblance to actual persons, living or dead, events, or locales is entirely coincidental.

  © 2017 Anton Piatigorsky. All rights reserved.

  No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. For permission contact the ABA Copyrights & Contracts Department, copyright@americanbar.org, or complete the online form at http://www.americanbar.org/utility/reprint.html.

  e-ISBN: 978-1-63425-610-0

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