Defending Rights & Dissent Expresses Concern About Journalist Detained As “Material Witness”

Marzieh Hashemi, a journalist with the Iranian state-run Press TV, is currently being detained by the FBI. Hashemi is an American born journalist who lives in Iran. According to her family, she was in the US to both visit relatives and film a documentary on the Black Lives Matter movement. She was arrested by the FBI in St. Louis, Missouri and transferred to Washington, DC, where she is currently being held. Initially, the FBI refused to comment at all on her detention, but on Friday January 18, 2019 a judge unsealed an order revealing that she had been detained as a material witness. According to the order, Hashemi is not accused of any crime and will be released after her testimony.

The material witness statute allows the US government to detain someone who is not suspected of any crime, but who the government wishes to call before a grand jury and is feared to be a flight risk.

The material witness statute was enacted in 1984.  In the aftermath of 9/11, the material witness statute was frequently abused by the US government. Federal authorities used it as a loophole to get around the Fourth Amendment and detain people the government wished to investigate, but lacked probable cause of criminal wrongdoing. According to 2011 ACLU and Human Rights Watch report, in the period after 9/11 the US government detained 70 people as material witnesses. All but one of them were Muslim and at least 30 of them were never called to testify as a witness in any proceeding. Most of them were held in round the clock solitary confinement.

The Fourth Amendment requires probable cause to detain a US person. The material witness statute has repeatedly been used in bad faith by the US government to get around these constitutional protections. While it is disturbing for the US government to detain individuals not suspected of wrongdoing, to arrest and detain a journalist not suspected of any wrongdoing raises heightened concerns.

Defending Rights & Dissent is deeply concerned about the detention of Hashemi and will continue to monitor the situation.