The Colgate Scene
May 2008

Public defender, civil rights champion

Federal public defender Steven Wax '70 (right) with his client Brandon Mayfield at the news conference after Mayfield, who had been erroneously linked to the 2004 Madrid train station bombings, was exonerated. [Photo by Mitzi Miller]

Imagine that FBI agents knock on your office door, arrest you without providing a reason, lead you out in handcuffs, and throw you in jail; meanwhile, your family thinks you have disappeared. Although most Americans believe this scenario could never happen to them, federal public defender Steven Wax '70 says that this can and did happen. He has defended several men caught up in the U.S. government's post-9/11 counterterrorism measures who were found to be innocent — including the high-profile case of Brandon Mayfield, an American-born lawyer and army veteran who was held as a suspected terrorist in the 2004 Madrid train station bombings, as well as several men detained in Guantánamo Bay prison.

Wax is garnering attention for speaking out about what he believes is a serious threat to individual civil liberties, and therefore to the justice system as a whole. His new book, Kafka Comes to America: Fighting for Justice in the War on Terror, interweaves the stories of two clients: Mayfield, and Adel Hamad, a Sudanese hospital administrator and aid worker who was detained in Guantánamo prison. By juxtaposing the stories of these two men from different continents and different cultures — albeit who share the same religion — Wax contends that no matter where or whose individual rights are threatened, it threatens the justice system everywhere.

The issues, he says, do not involve the question of the government's responsibility to protect its citizens, which many say is its foremost responsibility. Rather, the question is whether the executive branch has gone too far and upset the balance of powers and rights in the Constitution. Furthermore, Wax believes the writ of habeas corpus (protection from unlawful imprisonment) is one of today's most fundamental issues. "In essence, the Bush administration has said they have the authority to seize people, throw them into prison without giving them any meaningful process, and keep them in prison indefinitely without any judicial involvement. We have an obligation as citizens in this country to speak up [about the issue]," he said.


Drawn to the law
Read a firsthand account by attorney Allison Lefrak '96, who has represented several Guantánamo Bay prisoners through her pro bono work as an associate at her law firm. With 29 years' experience as a public defender, Wax sits on the other side of the courtroom from his early legal work as an assistant district attorney in Brooklyn, where he had his first taste of high-profile cases when he assisted in the prosecution of serial killer David "Son of Sam" Berkowitz in the mid-1970s.

Wax earned his juris doctor from Harvard University, having been "drawn to the law as an instrument of justice to protect the weak and oppressed." When the "defense side of the bar beckoned," he first became a county public defender in Broome County, N.Y., in 1979. Wanderlust led him to the District of Oregon, where he was appointed federal public defender in 1983 and is now in his seventh term.

The federal public defender system, which operates under the judicial branch of the federal government through the administrative office of the U.S. Courts, was established to provide a comprehensive system for appointing and compensating lawyers to represent defendants financially unable to retain counsel in federal criminal proceedings. In addition to handling federal criminal and appellate cases, Wax's office has built up extensive experience with habeas corpus cases including representing approximately 100 indefinite detainees who had been taken into custody by what was then the Immigration and Naturalization Service (now the Bureau of Immigration and Customs Enforcement) and could not be deported because there weren't extradition agreements with their home countries.


In Khartoum, Sudan, Wax (middle) interviewes Hashem Hamad (right), the brother of client Adel Hamad, a Guantánamo Bay prisoner who has since been released. [Photo courtesy Stephen Wax]

The cases
Wax's office was assigned to represent Brandon Mayfield because he is an Oregon resident, after the FBI arrested him on a material witness warrant in relation to the Madrid train station bombings. The FBI said they had matched a fingerprint, found on a bag containing detonation devices near the scene, to Mayfield, who was in his Portland home watching the Disney Channel with his family on the night of the bombings. Wax and his team worked around the clock to establish Mayfield's innocence. When it was discovered that the Spanish government had matched the fingerprint to someone else, Mayfield was released and exonerated after 19 days in jail. Although the FBI publicly apologized to Mayfield, Wax calls attention to the manner in which his arrest and imprisonment were handled and the hardship that was endured by Mayfield and his family. "Brandon's kids were traumatized by their dad being in prison and dealing with the negative repercussions of dad being labeled a terrorist," he explained. Wax received the National Association of Criminal Defense Lawyers' President's Commendation for his work on that case.

In spring 2005, Wax volunteered his office's habeas corpus expertise when the Supreme Court announced that those being held in the Guantánamo prison could challenge their detention in U.S. courts, and the U.S. District Court in Washington, D.C., was seeking help representing the 50 petitioners.

Like Mayfield, Adel Hamad was a family man who suffered the consequences of misinformation. He had been imprisoned in Guantánamo without due process when it was claimed he had ties with al Qaida. Hamad was arrested in his home in Peshawar, Pakistan, where he had been living with his family and working with an international charity. Wax flew to Guantánamo and, after reading the charges against Hamad, believed he was being considered guilty by association; some of the directors of the charities for which Hamad worked had taken anti-American positions. Wax and his team went into the war zones of Afghanistan, Pakistan, and Sudan to gather sworn statements from government officials as well as Hamad's employer, colleagues, landlord, and family, ultimately proving the claims false. They were able to give Hamad the good news that he would be released from Guantánamo after nearly five-and-a-half years of imprisonment and separation from his family.

It was after a visit to the prison when Wax said the words started flowing from him onto paper. In explanation of his book's title, he said, "It seemed to me I had discovered a real living example of a Kafkaesque system," referring to Franz Kafka's The Trial, in which the protagonist Josef K. was arrested but not allowed to see the evidence, and was expected to enter a plea without knowing what he was being charged with. "There was a description about how lawyers can't know anything either, and everything that Kafka described is what I had found," said Wax. "I'd wondered somewhat cynically whether the people who had devised the system in Guantánamo had read The Trial."

By unfolding the details of Hamad's and Mayfield's cases, Wax hopes "people recognize that the policies and actions in the war on terror have real-world impact on real human beings." He added, "`Detainees' is a nice euphemism for the men in [Guantánamo] prison, but they're human beings." Wax points out that it might be more comfortable for some to consider these prisoners "the other." "Whether `the other' is Muslims or darker-skinned people or people who are alien to us, there's a danger that one could be less critical of what's happening because they're not us. Brandon is the Oregon-born, Kansas-raised, all-American lawyer, who happens to be Muslim. If it can happen to Brandon, it can happen to you, it can happen to me, it can happen to anyone," Wax said.

Wax and his team continue to represent three clients who are still in Guantánamo prison.

Outside the intensity of his work, Wax is a family man himself. "You can't be consumed by this, so you try to find ways to manage it," he said. "I guess I'm lucky because I have a wonderful wife and kid, I play tennis, I ski, and I lead a full life."

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