Kafka Comes to America: Fighting for Justice in the War on Terror — A Public Defender’s Inside Account

By Steven T. Wax
380 pp. Other Press, 2008 $25.95

Reviewed by Jeremy Ohmes

In Franz Kafka’s The Trial, the protagonist, Joseph K., awakes one morning to discover that he is arrested for a crime that is never revealed based on evidence that he is never shown. Kafka’s paranoia-inducing story of erroneous charges and eroding rights could be interpreted as just another dystopian tale stuck in a different era. But in our “post-9/11 world,” where government eavesdropping is tolerated, civil liberties are trampled, and citizens are imprisoned indefinitely without a fair trial, Kafka’s fiction couldn’t be more of a reality. And no one knows this better than Steven Wax.

The head of the Oregon Federal Public Defenders’ office, Wax represented two men who were caught up in our government’s post-9/11 counterterrorism campaign and tossed into a Kafkaesque world of absent rights and unsubstantiated reasons. In Kafka Comes to America, Wax deftly interweaves the (non)trials and tribulations of these victims of the War on Terror. The first story revolves around Brandon Mayfield, an American-born Portland lawyer who took the cases of many Muslim clients and who was arrested by the FBI as a terrorism suspect in the 2004 Madrid train station bombings, after a fingerprint was mistakenly traced back to him. The second story centers on Adel Hamad, a Sudanese-born hospital administrator arrested in Pakistan while doing refugee relief work. Allegedly connected to al-Qaeda, Hamad was beaten, tortured and imprisoned for six months in a putrid Pakistani prison before being hooded, shackled and transferred to Guantánamo Bay, where he has languished for the past four years.

Wax thoroughly details his trips to Guantánamo, the convoluted process involved in even gaining access to the prison, the FBI’s Patriot Act-approved secret searches, his  conversations with Hamad and Mayfield, his often thwarted attempts to acquire habeas corpus for the two men, and the behind-the-scenes strategy of defending unpopular clients against a convinced and uncaring public, media and government. Occasionally Wax’s descriptions are too exhaustive, written in lofty, lawyerly jargon and tripping the reader up on obscure legalese. But Wax excels when he illuminates the larger story — the sine qua non of law and the constitutional right to a fair day in court — by vividly portraying the smaller stories of Hamad and Mayfield.

Wax exposes the post-9/11 systematic perversion of America’s legal system and how executive coup, legislative collusion and judicial cowardice allowed the scales to tip. The alternating stories of these two innocent men illustrate how lost civil liberties undermine the strength of our democracy and how lawyers like Wax, lawyers devoted to deeply held moral and legal values, are needed now more than ever. The author writes, “When you are representing a person accused of a crime, you are also representing a principle — the rule of law. You are keeping the police, prosecutor, and president honest, making sure they follow the rules and, in doing so, you are keeping everyone safe.”