In a legal argument called “astounding and very troublesome,” a federal prosecutor has argued that Israel’s Law of Return makes American Jews a flight risk and therefore ineligible for bail.
The claim, believed to be unprecedented, came in the bank fraud case of Sholom Rubashkin, the former Jewish head of the embattled Iowa kosher slaughterhouse, Agriprocessors, Inc.
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.
Rubashkin’s lawyers wrote in their appeal filed last Friday: “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.”
Deborah Lauter, director of the civil rights office of the Anti-Defamation League, said the prosecution’s “referencing the Law of Return is highly unusual.”
Marc Stern, acting co-executive director of the American Jewish Congress, called the move “very troublesome.”
“All Jews are suspect because of the Law of Return?” he asked. “It’s a very astounding and troubling argument. It’s different from saying he might run to Israel — whether or not there is a Law of Return.”
Stern said the government’s argument is “probably impermissible, but it’s hard to say without being more closely involved. … I think it’s an argument that’s too aggressive and I think they need to justify it by evidence that I can’t imagine them producing.”
In last Friday’s legal papers, defense attorneys for Rubashkin asked Scoles to reconsider his decision. And, in order to preserve their right to appeal, they also filed papers with federal District Court Judge Linda Reade in the event Scoles does not grant Rubashkin bail.
Defense attorneys F. Montgomery Brown and Guy Cook argued in their papers that the U.S. has an extradition treaty with Israel and that therefore “the Law of Return should have played no role whatsoever in the analysis.”
They noted that when they argued that position in court, the office of U.S. Attorney Matt M. Dummermuth countered by insisting that the extradition process “could take years.” And the prosecutor also introduced a copy of the Law of Return.
The defense attorneys said their research “has not uncovered a single instance involving a Jewish criminal defendant where the prosecution invoked the Law of Return in support of detention.”
And they quoted an attorney with years of experience in the Brooklyn and Manhattan federal district courts as saying he too could “recall no instance where the prosecutor invoked the Law of Return in arguing that an American Jew is a bail risk.”
Bob Teig, a spokesman for Dummermuth’s office, said the defense papers were filed last Friday and that “we have had no chance to file a response.”
Asked if the defense’s characterization of the government’s argument was correct, he replied: “The judge’s order speaks for itself.”
Laura Sweeney, a Justice Department spokesperson, said when asked about the prosecutor’s argument, “This is an ongoing matter and therefore the department declines comment.”
In their request to deny bail after his second arrest in November — he had been arrested in October on charges alleging that he hired illegal workers for his plant — prosecutors noted that Rubashkin had $20,000 in his home, much of it in a travel bag that also contained his birth certificate and his children’s passports; he has 10 children. He and his wife surrendered their passports after Rubashkin’s first arrest.
One of Rubashkin’s lawyers, Baruch Weiss of New York, acknowledged the cash was in the house but said that much of it was in one-dollar bills that had been collected for charity. And he said the rest was used to pay expense. He noted that a $1,700 car bill had recently been paid in cash.
Rubaskin’s Iowa defense team contended in their papers that 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 5.3 million Americans would be viewed as heightened bail risks simply because they are Jews.”
They pointed out that would include Attorney General Michael Mukasey, Homeland Security head Michael Chertoff and two U.S. Supreme Court Justices, Steven Breyer and Ruth Bader Ginsburg.
In their papers, the defense lawyers said the extradition treaty the U.S. has with Israel “has always been workable,” and that after recent amendments it is “now better than workable.”
“It applies to everyone, Jews and non-Jews,” they said. “It even applies to Israelis. This treaty will ensure that Rubashkin — even if he were to become a citizen of Israel under the Law of Return — will be returned to the United States, tried in the United States and if convicted, that he will serve any sentence in the United States. Were he to flee to Israel, he would be detained pending extradition. Because of this treaty, the Law of Return is irrelevant.”
In addition, the defense lawyers said that by denying Rubashkin bail, the court was denying him the constitutional right to equal protection.
“Jews are a protected class for Equal Protection purposes,” they wrote. “Thus, singling Jews out in any way when determining bail is unconstitutional…
“The government has failed to demonstrate a compelling government interest in a rule that implicates all Jews, and has failed to demonstrate that its interest here cannot be met with a more narrowly tailored approach. … The government introduced no evidence that Jews are more likely to flee because of the Law of Return than non-Jews.”
The defense lawyers concluded that “rather than locking Jews up with greater frequency, the United States could rely on a general array of bail conditions, and then utilize the valid, streamlined, regularly-invoked extradition treaty with Israel in those few cases where the defendant actually flees. Certainly it is better to have the government on rare occasions be forced to resort to this streamlined extradition than to brand over 5 million Americans a bail risks. … Otherwise, the government slurs Americans because of a law passed by a foreign country over which these Americans have no control and which they may have no desire to invoke.”