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