Waxing Confidential: First They Came For…

STEVEN T. WAX

In 2004, I was assigned by the federal court, along with one of my senior assistants, to represent Portland Attorney Brandon Mayfield. He had been arrested on a material witness warrant when he was mistakenly connected by the FBI and US Attorney for Oregon to the March 2004 train bombings in Madrid, Spain. After a furious two weeks of investigation and legal motions, and after the FBI’s assertions about a fingerprint match were debunked, Mr. Mayfield was released. As we were leaving my office for a press conference, Brandon stopped and copied down the words of a prose poem I had framed and posted inside my office door - Pastor Martin Niemoller’s post-WWII confessional, “First they came for the communists…” Fearful that so few people had been speaking up for Muslims since the 9/11 attacks, Brandon read Niemoller’s confessional to the assembled media.

I reflected on Niemoller, Brandon, Trump, and the pernicious effects of the complicity of silence last month at our Passover Seder. We use an Haggadah that takes a political perspective on the Passover story. While it tells the story of the Jews’ struggle for freedom in Egypt thousands of years ago, the Haggadah makes clear that Passover is a time for reflection on the struggles for freedom, justice, and equality of all peoples in all times. And a reminder that we all share the responsibility to do what we can in those struggles.

I shared with our friends my concerns about the administration’s attacks on science and education, our institutions and individuals, immigrants and trans people, lawyers and reporters. We got into a discussion about whether we are dealing with the same march to authoritarianism as the German people faced in the 1930s. Then, the Jews in Germany were debating whether it was safe to stay or if they needed to flee. So many stayed, and were murdered. I told our seder friends that I was not considering leaving the U.S., was going to be speaking out, and didn’t feel an imminent threat to my own safety.

The discussion took on a decidedly different tone when two of our seder participants, a child of one of our long-time friends who had transitioned to male several years ago and his recent bride, also a trans person, said they were preparing an escape plan to Uruguay. The talked about their fear and how they have been tracking the executive orders, state statutes, and bills pending in Congress that have stripped them of or, or propose to, strip them of rights to continued medical treatment, ability to live their lives as who they are, and how the disconnect between the gender they were assigned at birth and on their passports may limit their right to travel.

We all agreed the actions that threaten our friends’ children are designed to engender fear and silence. They are but one manifestation of the administration’s efforts to eliminate any actions to redress racism and bigotry, let alone acknowledge and discuss, the history of race and racism in our country.

The week after our seder, conversations I had with two other, non-Jewish, friends drove home how rapidly and deeply the actions and words of the administration have penetrated our psyches. First, a psychologist in her 60s who was brought to the U.S. from Italy by her parents when she was eight months old and has been a naturalized citizen for most of her life called close to panic about whether she would be able to return after a trip to see her mother in Italy. She had been hearing about people stopped at airports, having their phones and computers searched, and about visas of legal immigrants being arbitrarily revoked. A few days later another friend, an attorney whose family has been in the country for generations, asked about rights at the border and whether she should delete any apps on her phone that could be used to get into her client files.  These are fears and conversations we read about in authoritarian states where persecution becomes the norm.

Pastor Niemoller had been an early supporter of Hitler and the Nazis. By 1936, he had become disillusioned and disgusted as the net of their persecution grew broader. In 1937 the Nazis arrested him and kept him in prison for the next eight years. In 1946, he reflected on his early acquiescence and silence. We would do well to remember his confessional:

First they came for the Communists
And I did not speak out
Because I was not a Communist.

Then they came for the Socialists
And I did not speak out
Because I was not a Socialist.

Then they came for the trade unionists
And I did not speak out
Because I was not a trade unionist.

Then they came for the Jews
And I did not speak out
Because I was not a Jew.

Then they came for me
And there was no one left
To speak out for me.

Steven T. Wax started his career as a prosecutor, served as Federal Defender for the District of Oregon for 31 years, helped launch the Oregon Innocence Project in 2014, and recently became Senior Counsel to the Oregon Justice Resource Center. He is the author of the award winning memoir, “Kafka Comes to America,” and has written and lectured on the rule of law throughout the United States and elsewhere in the world. He has taught at the Northwestern School of Law at Lewis and Clark and Binghamton University.