50 – North of Boston
After six nights of sleeping alone, Shapiro found the bedroom door ajar after Sally retreated there to read herself to sleep. He’d undressed in the dark and climbed into bed as quietly as he could, not knowing if his wife was really sleeping or just pretending. In either case, they spent the night sleeping back to back, the gap between their spines either three inches or two feet. It did not matter, Shapiro realized, it might as well have been a brick wall. It was just as impenetrable.
And, possibly, just as permanent, he thought. It stung Shapiro to his core to realize that his being Jewish was the wedge driving him and Sally apart. His decision had come so easily, almost without thought. When it mattered, when it really mattered whether a person was Jewish or just a former Jew, somebody whose parents had been Jewish, once, it was impossible for Shapiro to turn his back on his heritage, on his very blood.
What saddened him, what broke his heart actually, was that the decision Sally had apparently made, the decision about where to stand when it mattered whether or not a person was a Jew, seems to have been as similarly automatic for her. Being married to a Jew was fine for her when there was no price to pay for it. But now, when Jews were lumped in with other second-rate foreigners trying to sneak into this country, when Jews were accused of committing terrorist acts within the United States itself, when Jews were arrested and detained by Sally's own government, and, most of all, when her son was beaten at school for being a Jew, now the price was too steep for her.
Sally lay inches from Shapiro, pretending to sleep, her mind racing. Just as Shapiro could not understand his wife’s rejection of him, she could not understand how a man who had not been inside a synagogue in ten years, a man who knew maybe six words of Yiddish, a man who laughed at her when she’d suggested they vacation in Israel rather than go on a bicycle trip in Scotland, as he planned, how that man could all of a sudden, out of nowhere that she could discover, became the Head Jew himself, leading the crusade, it seemed, all over the news.
After so many years of marriage, they now seemed so wrong for each other, she thought. Thinking back to her college years, she wondered whether her friends were right when they warned her he was too different, that it could not work in the long run. Sally remembered how popular she’d been in college until she became joined at the hip to Ben Shapiro. How different my life would have been, she thought, if I’d never met him, if I’d ended up with somebody more like me.
I never signed up to be a Jew, she thought. Or to have my son treated like a Jew.
Despite being overwhelmed with events outside his home, Shapiro, too, sensed that the gap between himself and his wife was wider than the space between their backs in bed. He’d made one more effort to talk with Sally the prior evening, leading to a discussion that ended after five minutes with her swearing at him for the first time in perhaps a decade after he’d asked her to join him in going to Washington the following weekend for the huge march.
“No, absolutely not. There is only one fucking Jew in this family,” she reminded him, leaping to her feet. “And it certainly is not me, and neither is it Adam.”
STOMP STOMP STOMP STOMP SLAM, she thundered up the stairs and slammed the bedroom door. He’d been surprised to find it ajar later.
Shapiro’s problems at home mirrored his problems with the two cases that were dominating his work life. The good news was that by the time Shapiro located Aaron Hocksberg, still his only client from among the local Jews arrested at their homes the night of the roundup, Hocksberg had been taken before a federal magistrate, charged with harboring fugitives and released on his own recognizance, meaning he was not required to post bail. All that happened before Shapiro could even meet with his client. The chief judge of the federal court in Massachusetts decided it took far less resources for the six federal magistrates, who handled such minor criminal matters as arraignments of arrested persons, to be shuttled from county jail to county jail, where the arrested persons were being held, than it did to transport all the defendants to the federal courthouse, where the magistrates normally conducted their business.
U.S. Attorney Anderson’s press conference announcing that all of those arrested would be charged with harboring fugitives and, in return for guilty pleas, his office would request fines and suspended jail sentences, went a long way toward defusing what had the potential to be an explosive situation in Massachusetts.
Attorney General McQueeney’s judgment on that issue proved correct. Despite early suggestions from defense attorneys about fighting every arrest, in light of the government’s reasonableness it appeared that all of those arrested would escape jail sentences and would, at most, have to pay a not-too-significant fine. As could be expected, a fundraising drive was launched to pay the fines.
Shapiro was not so lucky with his other client, the one charged with state criminal violations. Howie Mandelbaum remained the only person from the two ships who was taken into custody by state law enforcement officials, rather than federal officials. The Suffolk County District Attorney, in whose custody Mandelbaum was held at the Charles Street Jail, was infuriated that the United States Attorney had, in the DA’s words, totally wimped out.
Patrick McDonough, halfway through his second term as Suffolk County District Attorney, the chief local prosecutor for the Boston metropolitan area, was a proud Irish son of South Boston. He could smell the waterfront from his boyhood bedroom window. The idea that foreign forces sank military vessels, even if they were just Coast Guard, and killed military people, including that poor girl, within sight of his own mother’s living room window drove McDonough nearly crazy. He didn’t care what the feds were doing. He had one Jew in his custody and he intended to throw the book at the young man.
Shapiro returned to his office from a meeting with McDonough exhausted and, more importantly, gravely concerned for his client. He had assured Mandelbaum’s father, who seemed to have something technical to do with stock trading in New York as far as Shapiro could quickly determine, that the feds would take over all the cases and the state charges were likely to be dropped.
Now he’d have to call the senior Mandelbaum and admit that he’d been wrong. The only plan Shapiro could come up with was to slow the criminal process down and hope public opinion would ease and McDonough would back down.
The Camp Edwards detainees were the third hot potato Shapiro was juggling. He’d enthusiastically volunteered to head the legal defense committee for those detainees, a decision he was beginning to regret. The defense committee was being coordinated through the ADL, the Anti-Defamation League. Dozens of lawyers, not all of them Jewish, Shapiro was pleased to see, volunteered to represent individual detainees. The ADL set up what they hoped was a secure extra-net web site to coordinate the cases that were soon to be filed. The web site included an email list server that allowed each participating attorney to send and receive emails to and from a common site. The Guantanamo defense attorneys had used a similar arrangement.
The result was that Shapiro’s email inbox was flooded with emails back and forth among the lawyers on the defense team, and new lawyers joining up, it seemed, by the hour. It would be a full time job just reading all the email, Shapiro thought, adding a mental note to himself that he had to find somebody to take over day to day management of these cases so he could focus on the overall legal claims. Glancing at his well-stuffed email in-box, one email from the list server stood out, with a subject header in all capital letters saying EVERYBODY READ THIS ONE.
The email was from Shapiro’s client, Aaron Hocksberg. He was incensed by the arrests in general and by his arrest in particular. The partners in his primarily Jewish law firm voted to devote a don’t-worry-about-the-budget effort to representing the detainees. The email contained a draft of a petition for a writ of habeas corpus that the firm had prepared as a model for all the cases. It was twenty-five pages long.
I wouldn’t want to guess how many associates have been awake for the past couple of nights pounding that thing out, Shapiro thought.
He clicked on the email and double clicked on the attached file and began reading the petition. This is good, he thought, this is very good.
The petition traced the history of the writ of habeas corpus back past the founding of the United States and through English history. Much of the detail was new to Shapiro. Of course, he’d been introduced to the concept of habeas corpus in law school, but he’d never litigated a habe case, and it was only through litigation that lawyers could claim any competence in an area of the law.
Habeas corpus literally means “produce the body.” A writ of habeas corpus is a command from a court to the sovereign to bring a person held in custody into court and to explain what legal justification the sovereign has for holding the person. Habeas corpus is the most fundamental limitation on the power of the government to deprive a person of liberty without just cause and due process of law.
The petition Shapiro read related the history of what the law traditionally calls the Great Writ. It referred to Darnel’s Case, a case brought in 1627 by several Englishmen jailed by King Charles I. The king locked them up without charge for failing to assist England’s war against France and Spain. The prisoners sought writs of habeas corpus, arguing that without specific charges, “imprisonment shall not continue on for a time, but for ever; and the subjects of this kingdom may be restrained of their liberties perpetually.” The King’s Attorney General replied that the Crown’s interest in protecting the realm justified suspending the ordinary process of accusation and trial. The King prevailed, but there was such outrage at the decision that Parliament responded with the Petition of Right in 1628, which prohibited imprisonment without formal charges.
Fascinating, Shapiro thought. So almost four hundred years ago the Attorney General was going into court and telling some judge that being at war justified doing away with the protection offered by the criminal justice process. That sounds familiar. Shapiro read on.
The petition said that Parliament next passed the Habeas Corpus Act of 1679, which required the government to bring formal criminal charges against any person held in custody within three months of his arrest, bringing to an end the process of arresting people and holding them indefinitely without criminal charges.
That’s what they are doing with our detainees, Shapiro thought. The government has taken these so-called “enemy combatants” into custody and is holding them without bringing any criminal charges against them. The government plans on holding them without charges until the War on Terrorism is over, whatever that means. That would have been illegal in England in 1679, he thought. It can’t be legal here, now.
The petition then crossed the Atlantic and emphasized that the only individual right included in the entire original United States Constitution, even before the Bill of Rights added the first ten amendments, was the right to petition the court for a writ of habeas corpus. Section Nine of Article One of the Constitution says, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
The petition pointed out that all other individual rights, such as freedom of speech and religion and the right not to be deprived of life or property without due process of law, were all added later, starting with the Bill of Rights. The founders felt that only the right to habeas corpus was vital enough to be included in the body of the original constitution.
This is powerful legal argument, Shapiro thought. This is the sort of argument that convinces judges. It ought to be an uphill battle for the government taking on the founding fathers when it comes to constitutional law. We’ll see how those fundamentalist Supreme Court judges feel about taking on the Founding Fathers.
Suspending the right to habeas corpus was not done lightly, the petition argued. It pointed out that in 1807 President Thomas Jefferson tried to get Congress to suspend habeas corpus to deal with Aaron Burr’s conspiracy to overthrow the government. Congress turned Jefferson down. Even during the Civil War, a time of “insurrection” if ever the nation had one, President Lincoln failed when he tried to suspend habeas corpus on his own. Congress did suspend it for a short period, but not for long.
The petition then switched to bold face type with a message asking, “How do we deal with this? Ignore it for now or take it on from the beginning?” It then described the next time after the Civil War that Congress suspended the writ of habeas corpus, the year 2005, four years after the World Trade Center bombing on September 11. Congress passed what at the time seemed to be an obscure amendment to a defense appropriations act.
That amendment, called the Graham-Levin Amendment, stripped the federal courts of all jurisdiction to hear or decide any petition for habeas corpus filed by any person detained at Guantanamo Bay. In other words, nobody held at Guantanamo had the right to ask a judge to force the government to justify his detention. The Guantanamo detainees were left in legal limbo, a place where American law protected them, but they couldn’t go to court to apply it.
The petition, again in bold type as a message to the attorneys, simply said, “If they do this to us, we’re dead in the water.”
Shapiro read the remainder of the petition, skipping ahead to the bottom line, to the “Relief Requested” portion. It read, “Wherefore, the Petitioners demand that this Court declare that the Petitioners are being deprived of their liberty by the United States without Due Process of Law, without any formal charges having been brought against them and in violation of their rights as protected by the Fifth and Fourteenth Amendments to the United States Constitution. Petitioners further demand that this Court issue preliminary and permanent injunctions prohibiting the United States from further holding said Petitioners in custody.”
I like that, Shapiro thought. That’s legalese for Moses’ message to the Pharaoh another time Jews were held in captivity without cause, “Let my people go.”