A Progressive on the Prairie

We Americans like “up close and personal” stories, at least if they’re about athletes, celebrities, inspirational figures or the like. Yet it may be another story if we’re talking about getting up close and personal with those our government accuses of being terrorists. Yet many of those stories are ones we probably need to hear.

Steven T. Wax, the head of the federal public defender’s office in Portland, Ore., gives us such a look through the prism of what happened to two of his clients in Kafka Comes to America: Fighting for Justice in the War on Terror. One, Brandon Mayfield, made headlines across the country. He is the Portland lawyer who the FBI claimed a fingerprint tied to the March 2004 Madrid train bombings. The other is unknown to probably 99 percent of Americans. Adel Hamad is a Sudanese national who worked for an international Muslim non-governmental organization as a hospital administrator in Pakistan. He was hauled from his Peshawar apartment to a Pakistani prison and eventually flown in chains to the United States military prison in Guantanamo Bay, labeled and detained as an enemy combatant.

The two stories serve as excellent bookends for the ramifications of the policies and practices the U.S. has employed in the so-called War on Terror. Mayfield’s story shows the impact of the Patriot Act and a tendency to rush to judgment in terrorism cases on a relatively average American citizen and family. Hamad’s story shows the Kafkaesque limbo in which some innocent foreign civilians have been left for years. Both stories are frightening.

Wax’s office was appointed to represent Mayfield shortly after he was arrested as a “material witness” in the Madrid bombings by the FBI. It is, in large part, a story of a process dictated in large part by Washington, D.C., that went amok. The FBI looked at a fingerprint provided by Spanish authorities that was found on a plastic bag containing detonators and concluded with “100 percent certainty” that was Mayfield’s. It certainly didn’t help that Mayfield had converted to Islam from Christianity, handled a variety of immigration matters for Muslims and Middle Eastern natives, and represented an accused terrorist in a child custody proceeding.

The FBI’s suspicions led to “sneak-and-peek” searches (made without notice or a warrant) of Mayfield’s home, including taking DNA swabs and making copies of home computer hard drives; obtaining bank and other information via “national security letters,” which the recipients are legally forbidden to say they received; surveillance of his daily activities; and, wiretaps and electronic eavesdropping of his home. Federal terrorism officials were not dissuaded when Spanish authorities told the FBI on April 13, 2004, that their comparison of the fingerprint to Mayfield’s was “NEGATIVE.” Instead, the FBI concluded that since “[t]he problem is there is not enough other evidence to arrest him on a criminal charge,” it would arrest him as a material witness. In other words, Mayfield would be held without charges being lodged against him while the government continued to investigate and sought to force him to give a statement to them under oath or testify before a grand jury.

This is not a nail biting trial saga because there never was a trial. Instead, this is more of a story of a struggle against bureaucracy and blinders to get Mayfield released. Although the FBI ultimately admitted it made a mistake and that the print was not Mayfield’s, his client files and computers were seized and much of the information the FBI gathered was disseminated to law enforcement and intelligence agencies throughout the government. The government eventually reached a $2 million settlement with Mayfield but his case serves as a glaring example of what can happen in a rush to conclusions conducted in an atmosphere of fear and politics.

Hamad’s story likewise is not an cliffhanger tale of the Perry Mason school. In fact, Wax had only one court hearing and only met one of his two adversaries from the Department of Justice — once — in more than two years on the case. Instead, this is a story of the strategy of delay and roadblocks the Bush Administration employed to prevent those detained at Guantanamo and other military facilities from even getting hearings. This struggle led to three different U.S. Supreme Court cases and years of delay for the detainees. Even when the detainees were appointed attorneys to assist them with habeas corpus petitions, things were not easy.

The Department of Justice wouldn’t even tell Wax what country Hamad was from for three months. He, his staff and the other habeas attorneys were subject to protective orders that seriously constrained them.

The Protective Order prevented me from writing directly to Adel or receiving mail directly from him. Instead, all correspondence went through a Privilege Team from the Department of Justice. When I visited Adel, I could not take my notes out of the prison; instead, I had to give them to my military escorts. If I wanted to get the notes for use in my office, I had to let the Privilege Team read them, a process that can take anywhere from one to four weeks. Anything they thought should be classified was censored and locked in the secure facility outside Washington. And everything Adel told me, including such things as the name of his wife and his brother-in-law’s phone number, … was presumptively classified.

Thus, where Mayfield at least had the right to counsel, the benefit of full attorney-client privilege and hearings before a judge, Hamad did not. Just as he was blindfolded and chained en route to Guantanamo, he and his lawyers were figuratively in the same situation in the political and procedural battles being waged in Congress and the courts. The discussion and analysis of the lawyering here, though, is far closer to the real practice of law than what appears on television or movie screens. It is the formation of legal strategies to serve a client in the best way possible and the grunt work of investigating facts, gathering evidence and interviewing witnesses.

This all runs the risk that some readers will think the book lacks excitement or tension. In addition, Wax has the difficult but necessary task of explaining the background and history of such things as habeas corpus, the Patriot Act and the various actions taken by the Administration, Congress and the courts in the ongoing contest over the status and rights of the Guantanamo detainees. His effort is not helped by occasional diversions into his own background and occasional somewhat lofty statements about analogous points in history. For example, Wax relates that during one of his jail house meetings with Mayfield he was “seeing the fences” of the detention centers used to hold Japanese Americans during World War II.

But it takes lofty ideals and a strong devotion to them to do the type of work Wax and his office do. If anything, the “how can you defend those people?” cry must sound even more loudly when you agree to represent someone accused of being a terrorist. Yet most anyone who puts credence in America’s protection of civil liberties and human rights would condemn their erosion and the relentless struggle to deny detainees such simple due process rights as a hearing and seeing the evidence against them. But Wax recognizes that another strong principle is at play in his representation of Mayfield, Hamad and other detainees. There likely is no other country in the world whose government would pay a government lawyer to fight the government’s incarceration of an individual.

While Kafka Comes to America is largely a clarion call we would be well advised to heed, it also demonstrates that even when civil liberties are threatened, other core American principles can be used to help ensure and restore the nation’s place as a bulwark and symbol of justice.

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While we can lose our freedoms overnight to foreign invaders, we can also lose them slowly through a day-to-day acceptance of a series of incremental steps that will alter our lives forever.

Steven T. Wax, Kafka Comes to America