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 trial.
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.
[Marzieh was released January 23, 2019]