Steven Wax

[June 11th, 2008]

If the Bush administration wrote a War on Terror rulebook, they might mention sporks.

But as Steven Wax makes clear in his new book, Kafka Comes to America: Fighting for Justice in the War on Terror (360 pages, $25.95, Other Press), there will never be such a rulebook; the U.S. approach to counterterrorism is too convoluted and bizarre to be recorded. On Guantánamo Bay, for example, Wax reports detainees may use sporks but not plastic spoons, even though it’s harder to imagine the latter as a weapon.

Wax, a 59-year-old federal public defender based in Portland, knows this from years of defending seven Guantánamo detainees, including Adel Hamad, a Sudanese charity worker who spent five years in U.S. detention before his release last December.

Wax also was among the lawyers representing Brandon Mayfield, the Beaverton lawyer falsely accused in a faulty investigation of the 2004 Madrid train bombings that killed nearly 200 people.

Wax’s book takes its place in a growing canon of literature illustrating the chilling effects of expanding executive power under Bush and a reminder of what citizens can do to uphold their legal principles.

WW: You write that when you first met Mayfield in jail, he wanted you to tell him you believed he was innocent. Why didn’t you?

Steven Wax: As a defense attorney, it is not my job to judge a client. I have never been present at the crime scene with a client. My job is to gather facts, to assess those facts and to offer advice that includes an analysis of the risks and costs and benefits of different courses. I need to give clients advice based on an objective, real-world assessment. If I start getting emotionally invested in a case, making pronouncements of guilt or innocence, then that can affect my objectivity. And that is something I try to avoid.

It sounds like you didn’t believe him.

It’s not that I didn’t believe he was innocent or that I did believe he was innocent. But I had no way to gauge that. The unfortunate reality is that, over the years of my representation of people accused of crimes, protestations of innocence at the first meeting have—from time to time—melted away.

What makes you angrier looking back on the Mayfield prosecution: incompetence based on a screwed-up fingerprint identification or the ongoing denial of incompetence by then-Attorney General John Ashcroft and others?

The cover-up. People make mistakes. It’s human nature. The cover-up tends to be worse than the crime, or the mistake, particularly when government officials are involved.

How much money has your office spent defending detainees?

Tens of thousands of dollars. It is not inexpensive to go to Guantánamo or Afghanistan, Pakistan or Sudan. We have funded the work in our regular budget by making economies here and there and by spending wisely. The amount that we have spent is a pittance in comparison to the amount of money the government has spent.

What do you plan to do with the proceeds from your book?

I’m not going to get rich from writing this. But I am giving some of the money away, and some of it will go to the clients. Adel [Hamad] being one of them.