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Defense Department Turns Down My FOIA Request for Mohamed Al Hanashi’s Autopsy Report

You may recall that in June of last year, I was in Guantanamo when the detainees’ representative, Mohamed al Hanashi, was found dead in his cell, “an aparent suicide” according to the Gitmo press office. To recap, there was plenty wrong with that picture: al Hanashi had been taken out of his cell shortly after having been elected the detainees’ representative — he had been, according to relatives, in sound mind and feeling helpful because he had just been assigned a lawyer after seven years — and he was taken to a meeting with the Admiral and the head of the Guard force. He never was returned to his cell after that meeting — taken straight to the psych ward, though now family members and two sources, including Binyam Mohamed, have confirmed that he was not mentally ill.

Harper’s Magazine just ran an important cover story by Scott Horton — previewed on the Huffington Post — that established with intensive old-fashioned reporting that three “suicides” at Gitmo in 2006 could most likely not have been suicides. The men were found with their hands and feet tied and cloths stuffed so far down their throats that they had to be removed with surgical instruments; one man’s larynx had been removed. It also established a kind of “black site” at Gitmo, where terrible things appear to have taken place.

So what happened to the man who is on my own conscience, the one who died when I was there, the man who knew where “all the bodies were buried” vis a vis who at Gitmo had been tortured, and who the torturers were? I knew that there was now a NCIS criminal investigation into the death; that the body had been returned to al Hanashi’s family in Yemen in July; and that everyone — including the Embassy of Yemen — was still, as of Christmas 2009, waiting for the official US report to explain what happened to this young man who had allegedly “killed himself” in a venue with 24-hour surveillance, after having been assigned a lawyer subsequent to having been held without charges for SEVEN YEARS.

In December 2009, I had submitted, under the guidance of brilliant attorney Charlotte Dennett — the woman who ran for Attorney General of Vermont on a prosecutions platform — a FOIA request to the Armed Forces Institute of Pathology to obtain documents relating to Mr Al Hanashi’s death.

The Department of Defense — under the name of Gloria Bryant-Williams, FOIA Officer at the Armed Forces Institute of Pathology — wrote to me today that they received my FOIA request for the autopsy report on “Muhammad Ahmad Abdallah Salih al Hanashi, Guantanamo Detainee.” They informed me that I had received a tracking number…my heart leapt! But then: “The request was received and processed in accordance with the Freedom of Information Act, 5 United States Code (USC) 552.”..and…

The conclusion, after a mere five weeks after my FOIA clock began to run? “That review has been completed and the potentially responsive are being withheld pursuant to the FOIA under the following Exemptions [check that capital E, as in Dickens, as in bleak house, but bleaker]: Exemptions (b) (2)(b) which is exempts [sic] from mandatory disclosure records relates solely to the internal personnel rules and practices of an agency. Exemption (b)(7)(a) which prohibits the disclosure of information whose release could reasonably be expected to interfere with an on-going law enforcement investigation. FOIA Exemption (b) (7)(c) also provides protection for law enforcement information the disclosure of which could reasonably be expected to result in an unwarranted invasion of personal privacy of individuals in being associated with criminal activities, including investigators.

“Because your request has been denied’, she continued…I can appeal it in 60 days….

Ok. I tried to process this. Then, as the reasoning sank in: “What? What?” The citizen’s head reels.

The first exemption — well, I can’t even understand the syntax. It seems to be saying another version of what the first person to whom I spoke at the Armed Forces Institute of Pathology said to me: “We don’t have to tell you anything.” It seems to be saying that because a department did something, that something is private.

The second exemption? Surely this lone citizen typing away at her kitchen table on a computer, by updating her fellow citizens on the status of what became of a man in US custody, is not going to, by doing so, be interfering with an ongoing law enforcement investigation? If that is actual legal reasoning, it suggests that any journalist anywhere, by writing about anything that could involve a criminal investigation, is, simply by reporting on it, “interfering” with it.

The last one? I am going to invade the “personal privacy” of the investigators? And (again that damned syntax) I am going to invade their privacy by associating them with criminal activities? The investigators? Their personal privacy is compromised by a journalist’s reporting?

Again, if this is the typical, longterm standard set by the US government vis a vis reporting on sensitive or embarrassing issues? Or is it a departure, a new Orwellian low, a recently erected bar that asserts that if anyone anywhere asks questions the US government does not want to answer, that citizen or reporter is interfering with a criminal investigation and invading the privacy of those who wish to remain unaccountable to their fellow citizens in the light of day?

Obama campaigned on transparency. When I was at Gitmo, the word “transparent” was in every soundbite — as was the word “humane”. (Tell that to Mr Al Hanashi’s family.)

I am turning over my FOIA request to another reporter and laying down the task. Heartier souls than I can go here. But I invite lawyers familiar with the FOIA process to comment — and I invite other journalists, and the citizens who depend upon their access to documents that may be embarrassing or even more problematic for a sitting administration — to consider: are these the narratives whereby a true democracy — rather than a secretive, unaccountable, heavy-handed State of another kind — chillingly redefines the act of journalism?

This article was originally published on the Huffington Post.

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