Cortney Busch

The Americans assist in an American’s defence

on 18 April 2012


2010_07_28 Sharif Mobley family pic from Nzinga

In 1967, the Freedom of Information Act (commonly referred to as ‘FOIA’) came into effect.  Its purpose was for full or partial disclosure of previously unreleased information.  Its primary purpose is so that American citizens can have some oversight of what the government is doing and is meant to be a means to keep the US government accountable for what it does behind closed doors. 

However, as demonstrated in the case of Sharif Mobley, ‘partial disclosure’ can really mean nothing at all.

Sharif, a US citizen, was born and raised in New Jersey.  In 2008, he moved with his wife and kids to Yemen so he could learn Arabic.  As the situation in Yemen started to become dangerous in 2009, Sharif went to the Embassy, frantically trying to get his family – and himself – out of the country.  No help from the Americans came.  Instead, in January 2010, Sharif was kidnapped while grocery shopping and taken to a hospital room, where he was chained to the bed for weeks and told he, his wife, and his children would be tortured.  Now, Sharif is facing charges of shooting two guards, one fatally and is on trial in Yemen.

Reprieve, along with Kel McClanahan of National Security Counselors, asked the American government for what’s known as a ‘Vaughn Index’ in Sharif’s case – that is a document which describes the documents the government is holding in a particular case.  For our purposes, we wanted to see what – if any – evidence the US had which could help us better defend Sharif in his Yemeni court trials. 

While they really are just a list of documents, Vaughn Indexes can actually be extremely useful.  They can alert counsel to the existence of documents which contain information harmful to your client’s case – useful because then you know these documents exist.  (And sometimes, the description or title in the Vaughn Index will be enough for one to piece together what information is actually contained in a document.)  Other useful information one can glean from a Vaughn Index is the existence of exculpatory (or good) information in a client’s case, such as an alibi, reasons he was picked up, who and how he was picked up, etc.

Here at Reprieve, we’re no stranger to the US government’s tight-lipped responses.  However, the Vaughn Index disclosed to us in Sharif Mobley’s case at the end of last week came as a bit of a shock.  I’ve attached it here so you know what we’re up against, but some of the documents listed are: “Classified document regarding national security matter” and “Confidential, classified client communication.” 

It would be laughable how absurdly un-descriptive this Vaughn Index is if it wasn’t for the fact that Sharif may be facing the death penalty if convicted in Yemen.  The Americans continue to make a mockery of justice in this ‘war on terror’ (or as we like to call it here, the ‘war of terror’).  As an American citizen remains behind lock and key, possibly facing execution in a foreign land, the American government remains silent in his defence. 

This Vaughn Index is symptomatic of the post-9/11 US: silent when needed most by its citizens, turning everything into a matter of national security, and incredibly opaque.  FOIA no longer means the citizens’ check it once did, something Americans should have a good think about.  If there is no means for transparency and accountability, what else has our government being doing without us knowing?

For us, it’s time to go back to the FOIA drawing board…

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