In a disturbing and apparently unprecedented move, the federal government has claimed that simply being Jewish adds to the flight risk of a defendant facing criminal charges. The prosecutors made the claim—that every American Jew has “de facto dual citizenship”—in their case against Rabbi Sholom Rubashkin, the former head of Agriprocessors, Inc., who has been charged with bank fraud concerning the Iowa kosher slaughterhouse. The Jewish Week reported the news last week, but, deplorably, it has received little attention so far. According to the newspaper:
a federal prosecutor has argued that Israel’s Law of Return makes American Jews a flight risk and therefore ineligible for bail. . . .
And the federal judge in the case, Magistrate Jon Stuart Scoles, cited the Law of Return in his Nov. 20 decision denying Rubashkin bail.
“Under Israel’s Law of Return, any Jew and members of his family who have expressed their desire to settle in Israel will be granted citizenship,” the judge wrote, adding that the government had claimed that at least one other Agriprocessors’ defendant had already fled to Israel.
I’ve since read the judge’s decision, and it turns out that that the other defendant who allegedly fled to Israel is a Muslim who already held Israeli citizenship. Analogous? I think not.
In their recently filed appeal, Rubashkin’s lawyers made the point that, even in the unlikely event that the defendant were to flee to Israel, Israel has a long-standing extradition treaty with the U.S. that would require Rubashkin to be extradited back to the U.S. Yet the judge did not even mention that treaty in his detention decision. The defense lawyers also noted that “to accelerate the extradition procedure, some courts have required as a condition of bail that defendants with strong ties to Israel (including citizenship) execute irrevocable waivers of extradition. . . . Sholom Rubashkin would execute such a waiver in this case.”
They further argued that by invoking the Law of Return, the government violated Rubashkin’s right to equal protection since Jews, as members of either a race or religion, are a “protected class” under the relevant constitutional and statutory law. And to treat Jews differently than non-Jews in determining the risk of flight clearly fails to pass the test of strict scrutiny.
Rubashkin’s appeal also highlighted the reductio ad absurdum in the government’s claim:
In the prosecutors’ view, anyone subject to the Law of Return is an increased flight risk. Consequently, under that view, “every Jew” is to be viewed for bail purposes as a greater risk of flight than a non-Jew. That means that 5,300,000 Americans would be viewed as heightened bail risks simply because they are Jews. . . . It would also extend to the ultimate superior of the prosecutors pressing the Law-of Return argument, i.e., the current Attorney General of the United States Michael B. Mukasey; the ultimate superior of the Homeland Security agents who have investigated this case, i.e., Secretary Michael Chertoff; and two sitting Justices of the Supreme Court, Justices Steven Breyer and Ruth Bader Ginsburg. It is ironic that a law designed to provide refuge to persecuted Jews has now become the basis for detaining a Jew who might otherwise have been released pending trial.
Thankfully, it’s hard to imagine that the court’s reliance on the Law of Return will stand up on appeal.