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‘Kafka Comes to America’

Posted on Jul 16, 2008

    It is sadly amusing, that small part of Steven Wax’s book that brings us back to the bizarre color-coded system of homeland security alerts; the breathlessness with which the media would announce each day’s threat level and the way the Bush administration enlisted local police—untrained and almost certainly unaware of what they were supposed to do if they stumbled over a terrorist—in the early years of the so-called war on terror.

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    Wax, the federal public defender for the district of Oregon, recalls driving over a Willamette River bridge with his young son, who wondered what police cruisers were doing on each end of the span. The boy asked questions an innocent would ask: “Was there a real danger? If so, why were we driving over the bridge?”

    I chuckled out loud at that paragraph in Wax’s “Kafka Comes to America,” but that is its only humor.

    The book provides an insider’s view of some of the most hideous practices our country has allowed since the 9/11 attacks. And that’s without giving accounts of torture and abuse of detainees. Rather, it recounts an abuse of power and the twisting of American legal norms until they have been distorted beyond recognition—a disregard for the law that has swept up American citizens and foreigners alike.

    Wax and his colleagues were lawyers for Brandon Mayfield, the Oregon man who was erroneously jailed for alleged complicity in the 2004 Madrid train bombings. He was picked up as a “material witness” by the Justice Department, which based its suspicion of him—and countless media leaks that portrayed Mayfield, an American citizen who is Muslim, as a possible international terrorist—on what turned out to have been a faulty reading of a fingerprint by the FBI.


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    When Wax first was retained to defend Mayfield, he did not immediately know that the FBI and Spanish investigators had differed from the start on the fingerprint identification, the sole piece of “evidence” the U.S. government came up with before it swooped down on Mayfield and his family, searching his home through “sneak and peek” tactics authorized under the Patriot Act; leaving his wife and children with the terrifying thought that Mayfield might disappear or be charged with a crime that carried the death penalty.

    At the time, the White House was claiming it had the power to detain American citizens without charge or trial, and to incarcerate them in military brigs. Having read Alexander Solzhenitsyn’s “The Gulag Archipelago” and taken a law school course that described the Soviet legal system, Wax shuddered. “Now I was sitting in the county jail in Portland, Oregon, actually telling a client that he might disappear and we were even planning for the possibility,” he writes.

    In the end, the fingerprint identification was determined to be wrong, Mayfield was released and won a $2-million settlement from the government because of its misconduct. Still, Wax says, the secret search of Mayfield’s home could be conducted under the latest version of the Foreign Intelligence Surveillance Act, which allows such searches without probable cause, without evidence that the targeted individual has committed a crime. “Nothing’s changed,” Wax told me in an interview.

    Wax continues to be part of the legal team that works to get hearings for the Guantanamo detainees who have never had a day in court. The book flips back and forth between Wax’s efforts to get to the bottom of the Mayfield detention and his bid to free Adel Hamad, a Sudanese hospital administrator who was picked up by Pakistani security forces in his Peshawar apartment and shipped to Guantanamo.

    Though Hamad was returned to Sudan—after five years, four months and 25 days in captivity—under a deal with the Sudanese government, Wax is still battling to get this client a hearing in federal court. The reason? He’s never been able to present the evidence he’s developed that Hamad’s detention was a gross error; that he had nothing whatever to do with terrorist activity. The U.S. government, meanwhile, will “neither confirm nor deny that they ever talked to the Sudanese and reached an agreement” to free Hamad, Wax says.

    This would be laughable if it weren’t so frightening. The country has moved on to other worries as memories of 9/11 have faded. Yet the decisions made in the aftermath of that attack haunt us today, and they will be recorded as a blight on our history.
    Marie Cocco’s e-mail address is mariecocco(at)

    © 2008, Washington Post Writers Group

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By diamond, July 20, 2008 at 3:36 pm Link to this comment

It’s screamingly obvious why they don’t want to impeach these bastards. Imagine what would come out once they opened that messy can of maggots? America’s image internationally is already in the toilet but if the truth about 9/11 came out in a hearing, imagine the international mayhem, not to mention the lawsuits. Lawyers would be thicker on the ground than snow in December. The position the Democrats take is the ‘lawyer position’ good for nuclear attacks and for not doing your duty - put your head between your knees and kiss your conscience and your backside goodbye. A majority of the population wants these moral imbeciles impeached but the ‘lawyer position’ also blocks the ears which is very handy if you want to go on being an idiot.
Yes, it’s the f word at work - fascism. You can always recognise fascists - they are comically intense and earnest but also extremely dangerous and they say ‘I trust my gut’ a lot. They say this because they are incapable of the intellectual effort
otherwise known as thinking and they have the judgement of a drug addict on ice.

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By Maani, July 20, 2008 at 2:36 pm Link to this comment

The following article (which appeared this weekend) is yet another example of what Cocco is talking about.  And make no mistake: although the article is ostensibly about the misapplication of new immigration laws, those laws were themselves an outgrowth of the “war on terror” atmosphere.  Be prepared to be outraged:


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By jack, July 20, 2008 at 2:31 pm Link to this comment
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RE: “impeachment is off the table”...I have found it very strange and inexplicable.

The anthrax investigation died as soon as it came out that the stuff had been traced to a US. Gov. lab.

Investigate! Indict! Prosecute! Execute! Nothing less than TREASON for the lot of them!

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By magouche, July 20, 2008 at 2:18 pm Link to this comment

Where did that “impeachment is off the table” comment by Pelosi come from, practically the first day she was in office?  Was a deal made?  If so, why, and how?  No one had even asked her about it.  Not the press, at least.

I have found it very strange and inexplicable.  She lost my respect from day one.  She continues to enable the bush admin. to a nauseating degree.

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By Louise, July 19, 2008 at 10:17 am Link to this comment

“This would be laughable if it weren’t so frightening. The country has moved on to other worries as memories of 9/11 have faded. Yet the decisions made in the aftermath of that attack haunt us today, and they will be recorded as a blight on our history.”


We see, every single day, the ghost of reason drifting over the inhabitants of congress. They are jumpy and easily frightened, but of what? The terrorists, or losing their place in line? The threat of harm, or the threat of having to go home? Certainly not of the ghost of reason.

Remember when congress was evacuated because someone found an unidentified package in the hall?

That was one of those rare times when I was glad mainstreammedia kept running the clip over and over again. Because it gave us such a clear picture of how out of touch our congress is.

The hysteria and panic was dumbfounding. No order, no sanity, just a lot of personal panic. One congress lady, [I think it was Nancy] was so panicked, she ran right out of her shoe! Had the package actually been a bomb, no doubt there would have been danger.  But the real danger was in the complete disarray seen when congress had to leave the building quickly! Running like so many panicked elephants and donkeys, how the herd managed to keep from hurting each other is the real wonder!

Not at all like the orderly evacuation one sees from a Kindergarten when the fire alarm goes off. And those little kids really do have reason for alarm.

Point being, these folks really don’t know what’s going on. They only know two things, cover my ass and get to the next party.

And how to campaign. Guess that’s three.

They completely miss the blight thing, just as they completely miss the reality of the need for accountability. Those who were complicit in bringing us to the horror of what the author describes as ... “an abuse of power and the twisting of American legal norms until they have been distorted beyond recognition” ... stand smiling, promising a brighter tomorrow, when they don’t have a clue, or a smattering of conscience about their responsibility in the darker today.

We do not need a more bi-partisan congress. They have far too much fun getting along together as it is. I am so sick and tired of hearing them call each other, “my good friend on the other side of the aisle,” I feel like screaming. If they’re such darned good friends, why don’t they join hands, and just leave? Then somebody who cares about the folks back home can come and clean up their messes?

In addition to needing a president capable of understanding truth and consequence, we need a totally new congress. Both parties, both houses, clean sweep. Period.

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By Jack, July 18, 2008 at 10:29 am Link to this comment
(Unregistered commenter)

I heard Wax lecture on his book at Powell’s in Portland a few months back. In the Q/A, I asked him his opinion of the explanation (below) for warrant-less surveillance, and he said, cautiously, that it didn’t sound implausible.

One analysis holds that NSA data scoops are for their eyes only. The FISA court has a history of issuing warrants for virtually any request (rejecting less than .01%), but may examine the results. The most logical explanation for bypassing warrants in executing massive data scoops is to avoid the chance that intel on US-gov.-sponsored balck-ops might accidentally be seen by a FISA judge — the simplest way covert-ops teams within US Intelligence networks can keep communications to and from patsies, moles and executioners from accidentally coming before a FISA judge.

As for the POTUS, doubtful he has a clue about any of this. His handlers say, “JUMP!” He asks, “How high?”

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By webbedouin, July 17, 2008 at 8:23 am Link to this comment

We have a new machine that uses needles to inscribe the name of your crime into your skin.

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By Jim Yell, July 17, 2008 at 7:23 am Link to this comment
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The reluctance to impeach this administration is beyond explaination, perhaps. I think some of it is what happens when the oversight is conducted by the group overseen. Democratic or Republican officials are made very uneasy by the prospect that they might be held accountable for their decisions and even law breaking.

However the constitution is written and makes this a duty and process of the Congress and yet they won’t use the tools given them. They allow Cheney and Bush to refuse to give accounts of what they did and to allow viewing of documents. Here we are in an energy crisis and the occult meeting between Cheney and Energy Industry is still secret. Doesn’t anyone think the public should know what machinations went on and the effects, the consequences that they have led to?

The really disturbing thing about this is if not repudiated a precedent has been created and a tool of repression and oppresion has been given to any President which will allow for the complete distruction of the United States by its political parties in power. This will not be good for the people, this will ultimately not be good for the politicians, unless you think using the law for the purposes of gangsterism is a postitive direction change. Think about political parties staying in power by legalized murder and disappearances without consequences to the ambitious. That is the model for Soviet Russia, WWII Spain, Germany & Italy—-Is this what we have become? Is this the future?

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