‘Kafka Comes to America’

By Marie Cocco | TruthDig | Posted on Jul 16, 2008

It is sadly amusing, that small part of Steven Wax’s book that brings us back to the bizarre color-coded system of homeland security alerts; the breathlessness with which the media would announce each day’s threat level and the way the Bush administration enlisted local police—untrained and almost certainly unaware of what they were supposed to do if they stumbled over a terrorist—in the early years of the so-called war on terror.

Wax, the federal public defender for the district of Oregon, recalls driving over a Willamette River bridge with his young son, who wondered what police cruisers were doing on each end of the span. The boy asked questions an innocent would ask: “Was there a real danger? If so, why were we driving over the bridge?”

I chuckled out loud at that paragraph in Wax’s “Kafka Comes to America,” but that is its only humor.

The book provides an insider’s view of some of the most hideous practices our country has allowed since the 9/11 attacks. And that’s without giving accounts of torture and abuse of detainees. Rather, it recounts an abuse of power and the twisting of American legal norms until they have been distorted beyond recognition—a disregard for the law that has swept up American citizens and foreigners alike.

Wax and his colleagues were lawyers for Brandon Mayfield, the Oregon man who was erroneously jailed for alleged complicity in the 2004 Madrid train bombings. He was picked up as a “material witness” by the Justice Department, which based its suspicion of him—and countless media leaks that portrayed Mayfield, an American citizen who is Muslim, as a possible international terrorist—on what turned out to have been a faulty reading of a fingerprint by the FBI.

When Wax first was retained to defend Mayfield, he did not immediately know that the FBI and Spanish investigators had differed from the start on the fingerprint identification, the sole piece of “evidence” the U.S. government came up with before it swooped down on Mayfield and his family, searching his home through “sneak and peek” tactics authorized under the Patriot Act; leaving his wife and children with the terrifying thought that Mayfield might disappear or be charged with a crime that carried the death penalty.

At the time, the White House was claiming it had the power to detain American citizens without charge or trial, and to incarcerate them in military brigs. Having read Alexander Solzhenitsyn’s “The Gulag Archipelago” and taken a law school course that described the Soviet legal system, Wax shuddered. “Now I was sitting in the county jail in Portland, Oregon, actually telling a client that he might disappear and we were even planning for the possibility,” he writes.

In the end, the fingerprint identification was determined to be wrong, Mayfield was released and won a $2-million settlement from the government because of its misconduct. Still, Wax says, the secret search of Mayfield’s home could be conducted under the latest version of the Foreign Intelligence Surveillance Act, which allows such searches without probable cause, without evidence that the targeted individual has committed a crime. “Nothing’s changed,” Wax told me in an interview.

Wax continues to be part of the legal team that works to get hearings for the Guantanamo detainees who have never had a day in court. The book flips back and forth between Wax’s efforts to get to the bottom of the Mayfield detention and his bid to free Adel Hamad, a Sudanese hospital administrator who was picked up by Pakistani security forces in his Peshawar apartment and shipped to Guantanamo.

Though Hamad was returned to Sudan—after five years, four months and 25 days in captivity—under a deal with the Sudanese government, Wax is still battling to get this client a hearing in federal court. The reason? He’s never been able to present the evidence he’s developed that Hamad’s detention was a gross error; that he had nothing whatever to do with terrorist activity. The U.S. government, meanwhile, will “neither confirm nor deny that they ever talked to the Sudanese and reached an agreement” to free Hamad, Wax says.

This would be laughable if it weren’t so frightening. The country has moved on to other worries as memories of 9/11 have faded. Yet the decisions made in the aftermath of that attack haunt us today, and they will be recorded as a blight on our history.

Marie Cocco’s e-mail address is mariecocco(at)washpost.com.

© 2008, Washington Post Writers Group


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