[Pnews] The Brazen Detention of Marzieh Hashemi, America’s Newest Political Prisoner

Prisoner News ppnews at freedomarchives.org
Tue Jan 22 10:58:00 EST 2019


  The Brazen Detention of Marzieh Hashemi, America’s Newest Political

by Stanley L. Cohen <https://www.counterpunch.org/author/slcohen0990/> - 
January 22, 2019

Any discussion of the detention of journalist Marzieh Hashemi must begin 
in the historical context that all presidents have used the Department 
of Justice for constitutionally prohibited personal ends. The calculated 
seizure and political intimidation of Mrs. Hashemi and her family in the 
United States is but the most recent flagrant instance.

Whether it’s the deportation of political enemies during the Palmer 
Raids of the early 1900’s, or the COINTELPRO attacks a half a century 
later upon dissidents of color through assassination, mock show trials 
and indefinite detention of political prisoners, or the post 9-11 
hysteria that drove hundreds of thousands of Muslims from the United 
States, or the targeted attack on whistle blowers and construct of the 
surveillance state by the last president, all have seen their executive 
power as essentially boundless, and their thirst to use it . . . 
  largely unrestrained.

Yet none before has been so public, indeed brazen, as is the current one 
in his utter contempt for the settled rule of law and procedure. Indeed 
in Trump’s view the Department of Justice exists as but a mere extension 
of his own political thirst and agenda and may be employed as a tool to 
implement personal and political reprisal. In this light, the lawless 
seizure of Marzieh Hashemi was as predictable as it is ominous in both 
process and substance.

The history of the Foreign Agent Registration Act (FARA) has largely 
lain dormant with few prosecutions, if any, for violations and none 
before that have triggered the seizure of an American journalist 
pursuant to the subterfuge of a material witness order, here employed as 
little more than political handcuffs.

As of now there has been no official comment by the Department of 
Justice as to the nature of the grand jury dodge that served for the 
illegal and unnecessary seizure of Mrs. Hashemi when she recently 
de-boarded a flight in St. Louis, Missouri.

Initial grounds for the unprecedented seizure of the highly respected 
anchor for Press TV swung wildly, ranging from leverage to obtain the 
release of other Americans “held” in Iran to a US investigation into 
possible violations of the recently re-imposed political sanctions 
against Iran to OFAC violations (Office of Financial Assets Control) 
arising from her unlicensed work for a designated foreign state.

If, as it turns out, the seizure of Mrs. Hashemi finds its genesis in an 
unprecedented criminal investigation of a news outlet pursuant to FARA, 
to understand just how calculated and arbitrary a step it is, one need 
only look at its very different  application against the Russian state 
owned media outlets Sputnik and RT.

Cast in the light of the hysteria over alleged Russian interference in 
the 2016 election, Congress and various government agencies turned their 
attention to both outlets. Claiming the need to provide listeners with 
notice as to their partisan bent, in point of fact FARA was used against 
Sputnik and RT as so much a legislative bully-pulpit in a readily 
transparent effort to “purify” if not control the message of these two 
foreign owned outlets.

Yet, if FARA triggered the stunning seizure of Marzieh Hashemi, that 
precipitous step bears no likeliness whatsoever to the procedural and 
substantive approach employed by the US government with regard to like 
violations by Sputnik and RT.

In neither case were journalists of the networks seized by the 
government for possible violation of FARA. In neither case were the 
networks targeted for grand jury investigation.  In fact, unlike here, 
both media outlets were given ample opportunity to raise objections to 
the applicability of FARA to their activity and when their arguments 
proved unavailing a chance to either register with it or to cease 
operations within the United States. Failing this, the government 
threatened but did not, at any time, undertake criminal prosecutions or 
arrests of employees, let alone journalists, who worked for the outlets.

That is not what has apparently happened here with Press TV. In this 
regard there is no evidence that Press was put on notice that it’s 
“presence” within the United States or acquiring and using information 
it received in and about controversial US issues for airing in Iran, and 
elsewhere, triggered FARA oversight let alone a criminal violation of 
its reach. Nor, does it appear, Press was given an opportunity to 
challenge a claim that its activity fell within the rubric of FARA. 
Finally, there is no evidence Press was given an option to either 
register with FARA or to cease its operation or a warning that failure 
to do so could result in the prosecution of the network or the arrest of 
its journalists.

In this light it is palpably clear that the Department of Justice has 
employed a double standard between its approach to the application of 
FARA to Sputnik and RT and to that applied as against Press TV.

Given a grand jury investigation into Press for an alleged criminal 
violation of FARA and the arrest of one of its most respected 
journalists, it is beyond cavil that the US government has chosen to 
selectively enforce and punish it for political reasons driven, no 
doubt, by an Oval Office agenda.

Can it be that this double standard is as much the result of the 
administration’s conscious effort to curry favor with the Russian 
government at the same time it seeks to punish Iran for the temerity of 
its political will and social independence?

Putting aside the government’s arbitrary application of FARA to Press, 
there can be no informed debate that the seizure and detention of Mrs. 
Hashemi pursuant to a material witness order is not just well beyond the 
norm, but here borders on political kidnapping.

As a rule subpoenas are served many thousands of times each year in the 
United States during the course of federal criminal or civil proceedings 
to ensure the availability of witnesses before grand juries or at trial 
who possess material and relevant information that is probative of a 
fact or an issue in controversy.

For those who, without legal challenge, simply refuse service of a 
subpoena or who seek to avoid or evade it the government or a private 
litigant may seek relief from the court to enforce compliance. Known as 
a material witness order, that relief compels the recalcitrant witness 
to appear before the court to determine for itself whether any further 
judicial intervention is necessary to ensure compliance with the subpoena.

A rare, by design, intimidating exception to the rule, a material 
witness order can only be issued pursuant to 18 U.S.C § 3144following a 
sworn fact based assertion that the necessary witness will not make 
herself available for testimony pursuant to normal process of law. 
Generally an affirmative showing must be made that the witness has by 
voice or conduct attempted, or will attempt, to flee or place herself 
beyond the reach of the court and thus unavailable to provide testimony 
in a given proceeding.

Once issued, a material witness order does not allow for indefinite 
detention of a witness but simply permits federal agents, in this case 
the FBI, to temporarily detain and present the witness to the court 
forthwith for a determination as to what steps, if any, must be taken to 
ensure the on-going availability and appearance of them as needed.

Although not charged with a crime, the court essentially considers the 
same factors for release or detention of a witness that it would weigh 
and balance if they had otherwise been arrested for an offense.  Among 
other things it must consider whether she is a flight risk or poses a 
danger to the broader community if released. It considers whether the 
witness is a citizen or lawful resident and if he or she has ties to the 
community such as family and employment. It may consider what 
affirmative acts if any have been taken by the witness to avoid process 
and appearance and what steps the government undertook before seeking 
judicial relief to obtain their availability before the grand jury or at 

Most important, the court must keep in mind that the witness has not 
been charged with an offense and should undertake such examination as is 
necessary to determine to the degree possible whether she will in fact 
appear for testimony of her own volition, thus militating against the 
need for imposition of any court imposed conditions.

Should the court remain unsettled over the willing availability of the 
witness to appear at a future proceeding, it has at its disposal a full 
range of coercive but non-custodial options ranging from bail or secured 
bond to home confinement or supervised release including reporting to 
pre-trial services and electronic monitoring such as an ankle bracelet. 
Typically, if released, the court will require that the witness 
surrender travel documents including any passport and restrict domestic 
transit during the pendency of the proceeding to the district where she 
is to reside and to that where her testimony is compelled.

Although the law varies from circuit to circuit there is generally a 
presumption that detention of a prospective witness especially long-term 
incarceration should be used sparingly and only as a last resort and 
where there is no less burdensome alternative. Nowhere is that more 
applicable, than here, where Marzieh Hashemi  is a US citizen with 
extensive family and life-long ties to the United States and who has 
made frequent travel to her home and community for family and 
professional reasons.  Indeed, there is nothing before us that indicates 
that she would willingly avoid or evade the jurisdiction of the court or 
has indicated any failure to comply with the lawful requirements of a 
duly issued subpoena.

To the contrary it beggars the imagination that Mrs. Hashemi would 
travel to the United States to visit with her children and grand 
children and to continue working on a documentary apparently long under 
way and, yet, without more, pose a risk of non-compliance with a 
subpoena for her testimony while here.

The voluntary arrival of Marzieh Hashemi in St. Louis Airport under her 
lawful name, with her duly issued passport and high profile persona puts 
the lie to any government claim that she is a fugitive, evasive or 
unwilling to voluntarily comply with lawful process of any court. Yet 
upon arrival, this prominent journalist and long standing critic of US 
policy at home and abroad was seized by the government and essentially 
disappeared as so much an unconstitutional domestic rendition. That she 
subsequently appeared before a court does little to salvage her 
abduction at the hands of government agents.

The public record with regard to the arrest and detention of Mrs. 
Hashemi is sparse indeed.  In this light it is, at this point, 
impossible to discern the basis for any claim that a material witness 
order was appropriate or necessary to assure her appearance before the 
grand jury.

Under the law, the government cannot seek nor can the court issue a 
material witness order on the basis of mere soothsay that non-compliance 
is expected at some future date on the part of a witness once served 
with a subpoena. Nor can it argue that it anticipates a potential 
witness will seek to avoid service or lawful obligation at some future 
date. To hold otherwise would be to empower the government to ignore 
long settled and basic procedure to obtain the testimony of a witness 
without resort to rank force and encourage its use as a systematic tool 
of coercion and intimidation.  Yet that is precisely what appears to 
have occurred with regard to Marzieh Hashemi.

Under the law it is not possible that the government could have been in 
possession of a material witness order for Mrs. Hashemi’s arrest upon 
arrival in St. Louis in the absence of any evidence that she had 
previously evaded service of a subpoena or fled the United States to 
avoid one only later to return. Nor is there any evidence that while 
living in Iran the US government attempted to serve a subpoena upon her 
or through counsel for some future appearance which she willfully ignored.

Under these circumstances it is well grounded to assume that as a Muslim 
and a popular Iranian employed journalist long critical of the United 
States, Mrs. Hashemi was, at some point, added to a list of political 
dissidents to be detained upon her return to the United States.  Once 
here, she was moved quickly by the government from dissident status to 
that of presumptive disobedient witness and arrested.

Marzieh Hashemi has appeared before a federal grand jury in the District 
of Columbia at least once, if not twice, yet remains detained in 
isolation under severe conditions that violate her fundamental religious 
rights and practices–a political prisoner, perhaps indefinitely.

There is simply no compelling reason that she remain in custody. As a 
United States citizen with no criminal history, and strong ties to her 
family and community here, there is no lawful basis upon which to 
conclude that she cannot and should not be released immediately under 
conditions that are routinely accorded to persons accused of federal 
crimes, at times even serious breaches of law.

Years ago in the shadow of 9-11 hundreds perhaps thousands of Muslims 
were rounded up and detained in political sweeps throughout the United 
States under the talisman and license of material witness orders as 
judges became blind gavels for government repression. Among them were 
citizens, resident aliens and lawful tourists. The one criterion that 
united all victims of the political frenzy was their faith and little 
else. I represented more than a few who sat frozen in federal detention 
facilities from coast to coast searching for truth and justice; for 
many, none was to be had for years to come. Others, upon release, fled 
the United States seeking refuge elsewhere from its mindless fear and 
blind hate.

Almost two decades later the political rage of this administration 
against Iran has once again unleashed its Justice Department as so much 
a partisan batter and little else.

Today Marzieh Hashemi sits alone.  Isolated and entombed deep in a 
government catacomb, she stands charged with no offense but in the eyes 
of this administration guilty as charged . . . a Muslim, a journalist, 
and a US ex-pat who has found shelter from its storm in Iran.

/*Stanley L. Cohen* is lawyer and activist in New York City./

Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 https://freedomarchives.org/
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