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The Right to a Fair Trial

Steven T. Wax, Kafka Comes to America: Fighting for Justice in the War on Terror (Other Press, 2008)

Of all the bedrock founding principles of this country, the idea of a fair and truly just judiciary has always held its place as the central underpinning of the American experiment. The judiciary branch provides needed checks and balances on the legislative and executive branches. And, perhaps most importantly, the concept of equitable justice for all extends the right of habeas corpus (the ability to petition the court for relief from unlawful detention) to all prisoners of the federal government.

Habeas corpus, seemingly a minor right, ensures that every person will have their day in court and will be allowed to see the charges presented against them in a timely manner. However, as President George W. Bush continues to remind us, September 11 changed everything. Or rather, he did.

Steven T. Wax’s debut work, Kafka Comes to America: Fighting for Justice in the War on Terror, details the Bush administration’s efforts to strip habeas corpus from the judicial system and Wax’s personal crusade to stop them. Following the Madrid train bombings of 2004, Wax, a Federal Public Defender, gained firsthand knowledge of the Bush regime’s tactics when he took on the case of fellow attorney Brandon Mayfield. Mayfield, a Muslim attorney living in Portland, Oregon, had defended a Taliban sympathizer and was taken into custody by the American government following the apparent discovery of his fingerprint amongst materials used by the Madrid bombers. While Mayfield was ultimately exonerated, the only appropriate adjective to describe his ordeal is Kafkaesque.

Mayfield was held indefinitely—with no formal charges brought against him—and both he and Wax were not allowed to examine or see any of the evidence that the government supposedly held on him. Wax makes the inherent impossibility of mounting a defense against such a case painstakingly obvious as he recounts the numerous governmental stonewalls encountered and the motions he prepared to hurdle them. These challenges are similarly met and noted by Wax in the other case recounted here, that of Adel Hamad, a Sudanese aid worker, who was tortured and held by the u.s. at Guantanamo Bay for over six years. (He has been released since the writing of Kafka.) In a particularly ironic and sad footnote, it should be noted that Hamad had been cleared for release for several years, but the u.s. government who had beaten, humiliated, and detained Hamad for years delayed his release over concerns that he would be mistreated upon his return to Sudan.

Wax tackles the subjects presented with a meticulousness and care that reveals both his obvious fluency and frustration with the pertinent legal issues as well as his genuine concern for his clients. Still, the book feels disjointed. Rather than presenting the cases separately and/or chronologically, Wax intersperses the events of the Mayfield case with the Hamad events, along with the occasional foray into the history of habeas-related jurisprudence. While a more experienced writer could have handled these juxtapositions successfully, Wax has bitten off more than he can chew.

The panoply of names and characters are cause for concern. While Mayfield, Hamad, and Mayfield’s judge are rendered quite vividly, the numerous other personages are usually mentioned only by name and title—and there are a lot of them. By skipping around between the cases and their attendant casts with little narrative color, the focus of the book is diminished as are the passages of heightened tension that occur in each case. Of those, there are a few that are quite intriguing, but they are broken up by long tales of legal preparations, the filings of amicus briefs and the like. One wishes that Wax had streamlined and tightened his narrative rather than simply name-checking every official with whom he came into contact.

There is little to quibble with in Wax’s main argument throughout the book, that the security of habeas corpus is more important than any feeling of security from terror generated by its removal; habeas, after all, is the force that has given America its moral authority since the nation’s creation. Yet, Wax’s book won’t reveal anything startling to readers who follow the news. While the documentation of cases like Mayfield’s and Hamad’s is vital to the fabric of American society and justice, Wax’s tale is jumbled and frequently dull.


James Arnett


The Brooklyn Rail

JUL-AUG 2008

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