The Talking Dog

July 22, 2008, TD Blog Interview with Steven Wax

Steven Wax, a graduate of Colgate University and Harvard University Law School, is a former assistant district attorney in Kings County (Brooklyn), New York, where, among other prosecutions, he worked on the "Son of Sam" case. Mr. Wax is currently in his seventh term as the Federal Defender for the District of Oregon. He is the author of "Kafka Comes to America: Fighting For Justice in the War on Terror, a Federal Defender's Inside Account" documenting his work on behalf of Oregon attorney Brandon Mayfield, accused of a connection to the 2004 Madrid bombings, and Adel Hamad, a Sudanese national formerly detained at Guantanamo Bay. On July 20, 2008, I had the privilege of interviewing Mr. Wax by e-mail exchange.

The Talking Dog: Where were you on September 11th?

Steven Wax: On September 11, 2001, I was home getting ready for work when a friend called to tell us about the attacks and to turn on the television. In setting the scene for some of the events and policy decisions that followed, I describe that morning in my book.

The Talking Dog: We, of course, are aware of your (now free) clients, Sudanese national Adel Hassan Hamad (of "Project Hamad" fame) and USA national Brandon Mayfield; can you identify the other clients, whether still at GTMO or repatriated, handled by you and/or your Oregon Federal Defender's office, by name, nationality and current location? Do any aspects of these clients stand out as worthy of mention-- such as their personality, or their cases, their family, or anything of that nature?

Steven Wax: My office and I are representing seven men who still are, or have been in Guantanamo. Three are home with their families, Adel and two Afghanis. The public records show that one, Nazar Gul, was taken into exile in Pakistan by his parents when he was three after he lost an eye to a Soviet bomb. He returned to Afghanistan only after Karzai came to power and got a job working for the Americans. He was arrested on a case of mistaken identity. The team of lawyers and investigators from my office that went to Afghanistan and Pakistan was able to track down all the witnesses who confirmed his path from Pakistan back to Afghanistan, his job, the medical problem that took him to the city where he was seized. The other Afghan who is home with his family was conscripted by the Taliban after they shot his brother in front of him. As soon as it was safe--after the Americans joined the fight--he crossed the battlefield and fought with the Northern Alliance.

We have one client who was sent back to Afghanistan but is still in the Polichaky prison outside Kabul that was built with American assistance. He is awaiting action by the Afghans, was a fighter in the civil wars but never against the Americans and was double crossed and given to the Americans in 2002.

Our three clients still in Guantanamo include two Syrians and a Yemeni. Men from those countries are among the most difficult to place since there is genuine danger if they go home. One's case is particularly disturbing--Al Ginco-because he was a Taliban torture victim who was liberated by our forces in December 2001 after 18 months of imprisonment by the Taliban who accused him of being a U.S. and Israeli spy. While under torture by the Taliban he made a tape that is anti-American, which he is not. When that tape surfaced, he was converted from a liberated prisoner of the Taliban to an American prisoner in Guantanamo.

The Talking Dog You have suggested that the aftermath of the Boumediene decision may well be a return to the immediate post-Rasul muddle in the District Court when one district court judge in D.C. (then IIRC it was Gladys Kessler) got assigned the habeas cases consolidated, but one judge (Richard Leon) opted out, and now I believe Judge Thomas Hogan has been assigned the cases for expedited handling, and it looks like Judge Leon will opt out again, with the D.C. Circuit deciding that prisoners still have no rights no matter how many times the Supreme Court says they do, forcing a return to the Supreme Court yet again... based on "facts on the ground" including how Judge Hogan is proceeding so far and the government's (obstructive) litigation posture, do you see what you feared as coming to pass? Also-- how likely do you think it will be that this government litigation posture would be continued by (1) an Obama Administration or (2) a McCain Administration?

Steven Wax: While the judges of the district court in D.C, met and agreed to have Senior Judge Hogan handle as much of the Guantanamo cases as could be consolidated, several judges have not transferred their cases. The government's position has been and likely will continue to be that the hearings the Supreme Court held the men are entitled to have in its Boumediene decision is quite limited. Consolidated pleadings on these issues are to be filed July 25. What we have seen so far suggests that there will be major disagreements over the scope of the hearings--who has the burden of proof, what is the standard of proof, what types of evidence are admissible--hearsay? double hearsay? triple hearsay?--etc. It is likely that not all the judges will agree. It is entirely possible that there will be another round of interlocutory appeals, i.e. appeals before hearings are held. Indeed, yesterday, Attorney General Mukasey told Congress that the Administration wants to propose legislation to define the procedures for the habeas hearings. This is likely to slow things down even more.

As for the Obama/McCain question, what we know so far is that the two men disagreed over the Boumediene decision, Obama being supportive of Justice Kennedy's majority opinion and McCain supportive of Justice Scalia's dissent. Both have spoken against Guantanamo in some respects and both have spoken against torture. It is likely that the Attorney General picked by each would approach the issues from somewhat different perspectives.

The Talking Dog: As you know, this week Sudanese President al-Bashir was indicted, or at least, an indictment was suggested, by the prosecutor at the International Criminal Court (a court whose recognition the United States has not yet signed on to). You were involved in extensive direct negotiations with the Sudanese government over Hamad (parallel, I suppose, to Clive Stafford Smith's vis a vis his client Sami al-Hajj, the al Jazeera camera man), and noted how difficult Darfur related issues and sanctions made those. Would it be fair to say that had the Sudanese not already been repatriated, the current development might have made such negotiations harder if not impossible?

Steven Wax: All I can say in response to this question is that the Sudanese were open with my team and me before we went to Sudan, while we were there, and have continued to be since we came home. They have been far more forthcoming about the negotiations with the United States than has our government. I tell the story of my time in Sudan in the book in the chapter called "Tea with the Ministers in Sudan." In response to your question, I can only speculate that they have been motivated by their own geo-political concerns in stepping up to push the negotiations for the Sudanese who have gone home so far. Whether President Bashir's problems will stall the negotations or give the Sudanese even more of an incentive to express humanitarian concerns about their men in Sudan is a question only time will answer.

The Talking Dog: As hard as it is to believe that Sudanese might be carrying a "lucky passport", can you address that issue-- the Europeans are gone, by and large, and who remain at GTMO are mostly Middle Easterners and North Africans from countries with less diplomatic leverage over the USA (I think Yemen has the big number, probably a dozen and a half Chinese Uighurs, and so forth)... in other words, save perhaps the dozen or two dozen "high value detainees" and at most another dozen or two former fighters over that, we are pretty much holding over two hundred prisoners (and held close to 800) for political reasons, rather than any particular security need or to try them or punish them... is that pretty much accurate as far as you're concerned?

Steven Wax: Your question speaks to the reality of the releases from Guantanamo--the men who went home first were from our allies in Europe and countries with a lot of oil. It is more difficult to repatriate many of the men who remain for a number of reasons. One is the reality that some of them will face torture or execution if they go home. Our government has an obligation, however hypocritical it may seem, to ensure that we do not send men to countries where they will be tortured. Again, however hypocritical or ironic it may seem, the State Department takes that responsibility seriously. While, to their credit, our European friends have spoken loudly against the policies in Guantanamo, to their discredit, none have stepped up to take in any refugees, including men who had official United Nations refugee status when they were seized. (China's former client state, Albania, is the sole exception having taken in 5 Chinese UIghers, then stopped.) The Center for Constitutional Rights has been working on asylum issues for years and is continuing to do so.

The Talking Dog Brandon Mayfield is a classic case of "there but for the grace of God go I"... unlike Jose Padilila or Saleh Al-Marri (we'll get to him soon!), Mayfield is a White Anglo, who was a practicing lawyer at the time he was arrested as a "material witness" associated with the 2004 Madrid bombings (a fingerprint that was supposedly a match to his "with 100% certainty" according to the FBI was found on a bag containing explosives in Madrid). Now, Mayfield had, of course, a lot of arguably circumstantially incriminating evidence; he had represented a Muslim accused of terrorist; his wife was of Egyptian descent, and a Muslim, and he himself had converted to Islam; he had served in the Army on a Patriot missile battery. (Like James Yee, IIRC, he also had some connection to Ft. Lewis in Washington state). Can you comment on the fact that the FBI decided to let Mayfield's religion get in the way of its regular methods of checking the validity of its forensic evidence, and just decided to have its entire apparatus verify that Mayfield's print was the real article, when clearly, experts disagreed (and the Spanish authorities ultimately found another match)? Is this not endemic of our whole approach to detention in the war on terror... i.e., dead certitude when we should be having real agonizing doubt-- to be actually certain we have the real perps?

Steven Wax: The mistakes in Brandon's case were the subject of two government reports that are very important to read in order to understand what went wrong. I tell the stories of these reports in my book. First, an international team of experts convened by the F.B.I to examine the fingerprint mistake concluded that it was the result of abandonment of the scientific method, what they called confirmation bias, and the pressures that arose from the desire to solve a big case. The last point-big case pressures-is one I believe is applicable to many of the issues that have arisen in the war on terror. We need to keep in mind that our government officials have a weighty responsibility to keep us safe. What I take from the comment in the report is that people can have their judgment distored by that responsibility, they can start acting as if they have blinders on, see only what they want or expect to see, and in the process start to believe that we cannot achieve security without sacrificing our values.

The second report was by Glenn Fine, the Inspector General of the Justice Department. He asked the FBI, DOJ and US Attorney participants whether Brandon's religion played a role in the case. Most said no; some said yes, that at the least it gave them comfort that they were on the right track. In affidavits submitted in the civil suit Brandon pursued after he was freed, the FBI fingerprint examiners swore that they did not have any information about Brandon when they made the identification. Because the civil suit was settled, they have never been cross-examined about their statements.

The Talking Dog. Can you describe how the matierial witness system has been abused-- in the case of Mayfield, Padilla... and al-Marri-- and others in the war on terror? Have there been any welcome statutory changes-- or unwelcome ones-- since the first passage of the Patriot Act, and has the decision finding parts of the Patriot Act unconstitutional in Mayfield's case "stuck"?

Steven Wax: In the book I describe a report on the material witness statute that revealed its use against approximately 70 men of Middle Eastern origin or Muslim religion. The number is now undoubtedly higher. It appears that the statute has been abused, i.e. used to hold men to see if they could later be prosecuted. It also appears to have been used disproportionatly against Muslims in terrorism related cases.

The Patriot Act amendments and the most recent FISA amendment that gave immunity to the telephone companies have not, in my judgment, made anything better.

Judge Aiken's opinion in Brandon's case striking down parts of the Patriot Act is still on appeal.

The Talking Dog. Given the very conservative 4th Circuit's recent reversal of Al-Marri and directing a habeas corpus proceeding proceed, the also very conservative DC Circuit's recent holding in Parhat and the Supreme Court in Boumediene... relevant to my earlier question, is any of this actually going to change much for any of the actual detained men involved in these cases? (On Boumediene, I understand al-Odah himself may be back in Kuwait...)

Steven Wax: These are, in part heartening decisions. Boumediene was critical in upholding the importance of habeas corpus and the limits on executive power. It did not, however, as stated above, say what type of hearing is required. Keep in mind, it was a 5-4 decision. Al-Marri was a very split decision was some bad as well as some good but nothing that I see as fundamental. Parhat was a fact specific case, showing that the D.C. circuit will review the record and when there is no evidence, say so.

The Talking Dog. Let's talk a bit about media coverage-- first, how would you comment on media coverage of these issues and your work in your Oregon media market, and then overall in the national and international spheres? You credit the web site Project Hamad with helping to build interest in Hamad's case that in turn helped build leverage in dealing with the Sudanese government, and it was probably that Sudanese interest that got Hamad released... are you aware of similar "grass-roots" efforts succeeding in the GTMO or war on terror context? Why aren't there more of them? Is this, as one of my interviewees suggested, because your colleague produced pictures-- or Hamad's familly and so forth, that got some traction on Youtube? Are Americans that shallow a people that if we don't see it on t.v., we just can't conceive of it? (and whether or not that's the case-- can you comment on the video of Khadr's interrogation that's out there?)

Steven Wax: I see the media and attention issues with Guantanamo similar to what we experience across the board. I believe it is very difficult for Americans to accept that the Administration that is sworn to keep us safe is willing to manipulate the truth as blatantly as it has and is as inept as it has been in so many areas. To accept that is to recognize that we may not be as safe as we want to be. Underlying all this is fear. Many people have written about the fear that seeped into our national psyche after September 11 and the way in which the government has manipulated us with that fear. It is difficult to repond when people say--you are either with us or against us, if you speak out you are aiding the enemy, and I know the truth. As a result, I believe the mainstream media has been cowed. Of course, it does not help when the news bureaus of most major traditionial media are cut way back and consolidated in the name of corporate decision making.

The Talking Dog Do you see an overall exit strategy from what the Bush Administration has done "to protect us", or sadly, has Kafka come to America to stay?

Steven Wax: I believe that our democracy is only as strong as we make it. We all have the First Amendment right to speak out and to associate. I believe we also have an obligation to do so. If enough people exercise those rights--whether members of the Heritage Society and the Cato Institute or the ACLU and Amnesty International, we can reinvigorate our democracy. And, of course, it is only an educated populace that can run a strong democracy, we need to reinvest in our schools and not be afraid to teach old fashioned civics lessons in the schools. Every American child should be taught what the Bill of Rights means and why it was created and study the declaratoin of indepence and the preamble to the Constitution. That does not happen now. It is up to each one of us to speak and act in order to turn the great American ship back on course. I close every one of my talks about my work and book by reminding people that, while I wrote the book on my own time, my work for my clients is as a Federal Defender. Whatever warts and scars our country may have, there are not many places in the world that would fund lawyers such as me to fight the government on the most fundamental issues of our day and leave us alone to do our work for our clients.

The Talking Dog. On behalf of all my readers, I thank Mr. Wax for that thorough and informative interview, and commend those interested in these matters to take a look at Kafka Comes to America: Fighting For Justice in the War on Terror, a Federal Defender's Inside Account.

Those who wish to read further about legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with attorneys Wells Dixon, Rebecca Dick, Wesley Powell, Martha Rayner, Angela Campbell, Stephen Truitt and Charles Carpenter, Gaillard Hunt, Robert Rachlin, Tina Foster, Brent Mickum, Marc Falkoff H. Candace Gorman, Eric Freedman, Michael Ratner, Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux, Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in "the war on terror"), with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with physician and bioethicist Dr. Steven Miles on medical complicity in torture, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainees Moazzam Begg and Shafiq Rasul , with former Guantanamo Bay Chaplain James Yee, with former Guantanamo Army Arabic linguist Erik Saar, with law professor and former Army J.A.G. officer Jeffrey Addicott, with law professor and Coast Guard officer Glenn Sulmasy, with author and geographer Trevor Paglen and with author and journalist Stephen Grey on the subject of the CIA's extraordinary rendition program, with journalist and author David Rose on Guantanamo, with journalist Michael Otterman on the subject of American torture and related issues, with author and historian Andy Worthington detailing the capture and provenance of all of the Guantanamo detainees, and with Joanne Mariner of Human Rights Watch to be of interest.


You've had some great interviews on GTMO.

If you ever need help, I'm happy to assist.

Kent Spriggs
de facto coordinator of GTMO lawyers with Afghan clients and leader of the small group that went to Kabul in Feb 08 to meet with government officials and were the first habeas lawyers to visit the Afghan National Detention Facility at Policharky east of Kabul (without US approval) where Afghans are now "repatriated."

Posted by Kent Spriggs at July 23, 2008 8:30 PM