Steven Wax, who opened the state’s Federal Public Defender’s Office in 1983, has done far more than defend the indigent.
Wax has become a national figure, fighting what he sees as injustices created by the U.S. government’s so-called “war on terror.” He helped exonerate Portland lawyer Brandon Mayfield, whom the FBI wrongly (some would say recklessly) linked to the 2004 Madrid train bombings that killed 191.
He’s fought against the government’s use of warrantless wiretaps like those secretly used to build a case against Mohamed Mohamud, convicted of trying to set off a dummy bomb at the 2010 Christmas tree lighting in Pioneer Square.
In his 2008 book, Kafka Comes to America, Wax detailed defending terror suspects, especially those held at Guantánamo, inside a fog of secrecy and misinformation that was the Bush Administration.
And Wax has continued to speak out against President Obama’s continuation of some of his predecessor’s most troubling tactics.
Wax—who oversees 24 defense lawyers—spoke to WW about his career and his next role, as legal director at the new Oregon Innocence Project.
WW: What have your high-profile cases—Guantánamo, Mayfield, Mohamud—taught you?
Steven Wax: Secrecy is a threat to democracy. It’s far more difficult to restrain power when one does not have the necessary knowledge. Being able to act in secrecy can be a corrupting influence, even on well-meaning people. It is incredibly frustrating to be put in a position in which a person’s life or liberty is placed in your hands and you are then deprived of the basic tools you need to do your job.
How do I know what the universe of information is out there? What I know is that I’m missing information. In some cases, I could get glimpses of what was likely missing, either from former members of the intelligence community or from records we obtained. We could determine there was a larger universe of information out there. That’s disturbing.
Looking back on Bush’s war on terror, did Obama succeed in shifting the narrative?
There has certainly been a change in rhetoric. There has been little change in the approach to litigation. Guantánamo has not been closed—in part because of Congress.
It has also not been closed because the Obama administration has asserted that there are 40 or 50 men in the prison it believes are too dangerous to let go and cannot prosecute. That to me is indefinite detention, call it whatever you want.
Obama talked about the need to rein in some of the policies of the Bush administration. He said what we were doing was torture: “People will not engage in torture under my watch.” That was a significant change. Beyond that, it is not so clear.
What are some challenges the Federal Public Defender’s Office will face after you leave?
We’ve come through a horrible budget situation. We have come through a time in which I had to lay people off, fire people, in which everyone in the office had to take furloughs. The budget deal that the Republicans and Democrats struck this past December has provided enough funding for this year. But then we get into the 2016 presidential election and the budget deal expires and who knows what is going to happen.
Aside from your better-known cases, which ones have stayed with you?
One client was charged under the Armed Career Criminal Act, possessing a gun. We won. That man, who had led a pretty wild life, turned his life around, became a very well-established drug counselor.
Another guy was charged with drug distribution. The judge made him go to prison for a much, much shorter time than what the guidelines called for. He got out, and he is now running a program helping other people. That’s cool.
The Innocence Project will be new to Oregon. Where will you start?
With identifying potential cases. The next step is to find out if people have been convicted who should not have been.
The Innocence Project is not limited to capital cases or life-sentence cases. There are people who are serving a 10-year sentence and didn’t do it. And how do you prove it? How do you find that person and prove it? Those are our challenges.
Will those cases be based on DNA evidence?
DNA exonerations are a significant part of what has brought the problem of wrongful convictions to the public’s attention. But there are wrongful convictions out there that cannot be solved by DNA. And those are more difficult. We will be looking at the full spectrum of cases where there might be injustice.
How will you feel leaving an office you built?
I am, on one hand, really glad to have made the decision and to be moving into a new chapter. On the other hand, it’s scary. When I leave here, I’ll be 66 years old. I don’t always feel old. I have new stuff to learn, and I think I want to learn it. And the other thing I want to do is have more time to write. I want to write another book.
What will you write?
Chapter 2 of Kafka Comes to America.