Posted by Eugene Volokh:
May a Court Consider, in Denying Bail, That Any Jewish Defendant Is Therefore
Entitled to Israeli Citizenship and May Therefore More Easily Flee?
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1228839181
That's the issue in [1]U.S. v. Rubashkin, a magistrate judge's bail
decision that relies partly on the statement that,
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.
Nor does the opinion point to other factors that closely link
Rubashkin to Israel, the way that any defendant could be closely
linked to a foreign country in which he has lived a long time; the
focus is on Rubashkin's ethnicity and the legal consequence that it
has in Israeli law, not on his citizenship or his past life history.
The court does point out that "It is believed that [someone else who
might have been in on the same crime,] Hosam Amara, a Muslim with
Israeli citizenship, fled to Israel, possibly through Canada," that
defendant had traveled to Canada recently, and that there was other
evidence suggestive of a possible desire to flee. But it's pretty
clear that the Israel link in the opinion was based not on the
person's actual connections to Israel but rather his being Jewish and
thus being eligible for Israeli citizenship.
I'm inclined to agree with the [2]memorandum in support of the defense
motion challenging this on constitutional grounds. Whatever might be
the proper consideration of race or religion in investigation, or even
in brief stops, it seems to me that it can't be considered in deciding
on a defendant's presumptive constitutional right to bail. And, as the
memorandum argues,
[T]here are clearly narrower, tailored measures, that would be
effective rather than subjecting Jews to a different set of
standards. Rather than locking Jews up with greater frequency, the
United States could rely on the 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 occasion be forced to resort to this streamlined
extradition treaty than to brand over five million Americans as
bail risks. The government should not be permitted to invoke the
Law or Return in the case of every Jewish defendant, including
defendants who may not be aware of it, or have no interest in
moving to Israel. 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.
Naturally, it would be interesting to see any government documents in
the case, especially if they suggest some backstory that would cast
the magistrate judge's detention order in a different light. My quick
search through the docket, though, revealed no such government
documents, and the government response to the defense motion is not
due for some time yet. If any readers have more on this story, please
let me know. And if you yourself want to know more about the details
of the case, check out the documents I linked to above. (If you're
curious, the defendant is accused of various charges related to bank
fraud and to immigration violations -- and related immigration fraud
-- by the employees of the kosher meat packing and food processing
company that he ran.)
Thanks to [3]Religion Clause for the pointer.
References
1. http://volokh.com/files/rubashkin1.pdf
2. http://volokh.com/files/rubashkin2.pdf
3. http://religionclause.blogspot.com/
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