Taking Liberties

By Jonathan Finer,
who spent 18 months in Iraq as a correspondent for The Washington Post between 2003 and 2006
Thursday, July 31, 2008

KAFKA COMES TO AMERICA

Fighting for Justice in the War on Terror

By Steven T. Wax

Other. 380 pp. $25.95

Before they were falsely accused of terrorism, Brandon Mayfield, an American lawyer in Oregon, and Adel Hamad, a Sudanese relief worker in Pakistan, had little in common but their Muslim faith. Then came the political, military and legal maelstrom that followed the terrorist attacks of Sept. 11, 2001. On opposite ends of the globe, Hamad and Mayfield were ensnared in the roundup of those considered security threats. Both were jailed without charge, Mayfield for 19 days in his home state and Hamad for more than five years in Pakistan, Afghanistan and Guantanamo Bay.

But the two men soon shared one key thing that improved their lot: lawyer Steven T. Wax, whose chilling account of injustice in the war on terror, "Kafka Comes to America," leans heavily on the experiences of these two clients he helped exonerate and free. "Their fates, the citizen and the alien, are linked," writes Wax, a Harvard Law School graduate serving his seventh term as the federal public defender in Oregon. "They are a cautionary tale for all of us."

Oregon was an early front in the legal battles that emerged from the war on terror, the home of an alleged sleeper cell busted for conspiring to fight alongside the Taliban. Wax, who was born in a Jewish enclave in Brooklyn, is a charter member of the self-styled "Guantanamo Bar Association," the informal league of private lawyers, military and government defense counsels, public-interest litigators and law professors who have represented detainees. "When asked now how I can defend Muslim terrorists, the answer is easy for me," says Wax, who along with his colleagues has been criticized for representing people accused of fighting, or at least plotting, against the United States. "I am defending a principle that protects all of us, the rule of law that keeps us safe."

Mayfield and Hamad, like many others caught up in the government's dragnet, were never terrorists. Of the two, Hamad clearly endured harsher treatment. Seized from his Peshawar home in the dark of night by Pakistani forces (with a blond American leading the way), he contracted dysentery from rotten food and filthy water during six months in a fetid prison. After he was transferred to Afghanistan, his jailors interrogated him repeatedly about ties to the Taliban and al-Qaeda, which he consistently denied. He arrived at Guantanamo in March 2003 and was assigned to Wax after petitioning for habeas corpus relief, claiming that his detention was unlawful.

But American readers probably will be more shocked by what happened to Mayfield, who served two stints in the U.S. Army, converted to Islam in the early 1990s after falling in love with an Egyptian-born woman (who is now his wife) and voted for George W. Bush in 2000. Soon after the Madrid train bombings in March 2004, his family noticed footprints on their carpet and discovered that a deadbolt they never used had been locked into place. The fear that they were being watched was confirmed when the FBI raided their home and arrested Mayfield. The court document that led to his arrest claimed Spanish investigators had turned up a fingerprint that matched Mayfield's with "100 percent certainty." It later emerged that Spanish authorities always doubted that assessment and were inclined to link the print to someone else.

Wax's title refers to Franz Kafka's 1925 novel "The Trial," in which a man is arrested on secret evidence and charged with an undisclosed crime. "Kafka Comes to America" is partly a memoir of a life spent defending -- and, early in his career, prosecuting -- criminals; partly a treatise on post-9/11 law; and partly a case study of the war on terror's heavy human cost. As such, it has a disjointed structure that can be hard to follow. An impassioned advocate, Wax is sometimes prone to melodrama, beginning with his opening line: "In January 2002, the gates of Hell opened in Guantanamo Bay, Cuba."

He reserves his harshest judgments for senior Bush administration officials, including former attorney general John Ashcroft, whom he accuses of lying to Congress about Mayfield's case. But he treats the administration's foot soldiers -- such as a guard at Guantanamo who casually told Wax he was glad to be "contributing" to the nation's safety -- with surprising sympathy. "There are many different ways we Americans express our patriotism and compassion," he writes, "and it is important to honor them all."

Despite a few overreaching comparisons (to East Germany under the Stasi, for example), the book is more balanced than polemical. While decrying that his two clients' lives "were turned upside down based on a mistake," Wax allows that "in the end our system offered both of them help" and praises "the strength of America and its institutions."

A good lawyer may be even more important. Wax's clients benefited from innovative and unrelenting advocacy. He sent staffers to war zones to verify clients' claims and persuadedSudan's government to seek the release of Hamad, who is still a Sudanese citizen. When thwarted by new statutes blocking access to federal courts, Wax's legal team exerted public pressure through videos posted on YouTube that described Hamad's plight.

Two years after the military determined that he posed no threat, Hamad was freed in 2007 and returned to his family in Sudan. Mayfield was released after Spanish authorities found a different match for the controversial fingerprint. He reportedly settled a lawsuit against the FBI for $2 million.

Other detainees have been far less fortunate. Wax cites an Army study in July 2007 that found only 53 percent of Guantanamo detainees "definitively supported or waged hostile activities" and just 35 percent belonged to al-Qaeda or the Taliban. Some were literally sold to U.S. forces for bounties when the United States offered $5,000 for al-Qaeda fighters in Afghanistan and Pakistan in 2001-02. Meanwhile, in a 2006 speech recounted in the book, President Bush asserted that "we have in place a rigorous process to ensure those held at Guantanamo Bay belong at Guantanamo."

Wax joins a growing chorus calling for the closure of that prison, though he acknowledges that some Guantanamo prisoners should remain incarcerated. "Kafka Comes to America" says little else about how the U.S. military should handle detainees in the future. But his clients' experiences more than justify Wax's softly stated conclusion: "Of course the threat from terrorists is real, but the unfortunate reality is that the threat from an overzealous response to terrorism is real as well."


© 2008 The Washington Post Company