Rubashkin Associate Says American Jews "Beware"

Details:

Citing Israeli law in rejecting bail denies equal protection
By RASHI RAICES

American Jews, beware. If you run afoul of the Justice Department, your chances for bail are slim to none. That's the new legal concept created by the office of U.S. Attorney Matt Dummermuth in northern Iowa. The policy singles out Jews as a special category to be denied bail due to Israel's "Law of Return."

The Israeli law provides citizenship to any Jew immigrating to the country. It's much like the asylum clause in U.S. immigration law, designed to offer refuge to Jews fleeing oppressive regimes. It's never been used to give haven to American criminals. The United States and Israel have an active extradition treaty. Routinely, accused criminals are sent from one country to another.

We have yet to see whether this policy of singling out Jews will apply only in this part of Iowa or whether it will spread across the country. Dummermuth constructed this legal theory to prevent bail for Sholom Rubashkin, who is accused of nonviolent crimes related to the meat plant in Postville. The U.S. Attorney argued in front of Federal Magistrate Jon Stuart Scoles that the Law of Return could provide a safe haven to Rubashkin.

French can run to France, Mexicans to Mexico. If you have a Russian heritage, there is little fear that you would be barred from returning to your ancestral homeland. Yet Jews in the eyes of the U.S. Attorney are a special category under the law when it comes to bail, posing a flight risk and meriting treatment different from all other citizens of the United States.

It wasn't so long ago that the American legal system singled out Japanese Americans for special treatment under the law, when those American citizens were imprisoned during World War II based on their heritage. That episode is considered one the blackest moments of American jurisprudence.

The issues between the U.S. Attorney and Shalom Rubashkin have been brewing for a long time. If he wanted to run, he would have done it already. This is his second arrest and indictment. He already was wearing an ankle bracelet from the first arrest. Dummermuth knew where Rubashkin was and could have allowed him to surrender, as is common in such cases. Instead, Dummermuth chose shock and awe, rolling into Postville on Friday, ensuring Rubashkin would be held over the weekend and on the Jewish Sabbath.

The people of Postville know Rubashkin well. It's clear to us he has no intention of evading prosecution. He wants his day in court so he can defend his reputation. He feels maligned, singled out for prosecution. What other case of illegal workers has prompted such aggressive prosecution?

That's why more than 30 of us, including me, pledged our homes as bail. We're willing to put our families' security on the line for him.

Rubashkin and his wife surrendered their passports to the court some time ago. Still, the U.S. Attorney claims that Rubashkin is a flight risk. His evidence: He found a bag in Rubashkin's bedroom with his kids' passports and some cash. The Rubashkins have an autistic child who opens drawers and closets indiscriminately. They placed these documents in a secure place, away from his reach. Does Dummermuth think that Rubashkin could have traveled to Israel, which has the tightest airline security in the world, on the passport of a 10-year-old?

The fear of fleeing to Israel is a theory that's not based on any legal precedent or evidence from the investigation. As a kid, I studied the Constitution and the Bill of Rights. It promised equal protection under the law. How can we be sure of this in America today, and particularly in Iowa?

RASHI RAICES, WHO HAS LIVED IN IOWA FOR 13 YEARS, IS A PRINCIPAL OF AN ELEMENTARY SCHOOL IN POSTVILLE.

First of all, the school Raices heads is Chabad-affiliated, as is Raices, as is Rubashkin. Her school's bank account was allegedly used by Rubashkin to commit bank fraud.

Now, on to Raices' op-ed, which is so poorly argued it almost appears to be a caricature rather than a serious article meant to defend Rabbi Sholom M. Rubashkin.

This paragraph forms the heart of what passes for Raices' argument:

French can run to France, Mexicans to Mexico. If you have a Russian heritage, there is little fear that you would be barred from returning to your ancestral homeland. Yet Jews in the eyes of the U.S. Attorney are a special category under the law when it comes to bail, posing a flight risk and meriting treatment different from all other citizens of the United States.

Raices' claim is false, as this extended excerpt from a court filing by the US Attorney shows:

For the first time in his motion for reconsideration, defendant asks the Court to find an equal protection violation based upon the government’s evidence that defendant is entitled to de facto Israeli citizenship.1 The evidence was presented as a part of the government’s overall showing, by a preponderance of the evidence, that no “condition or combination of conditions ... will reasonably assure the appearance of [defendant] as required.” 18 U.S.C. § 3142(f). 

At the detention hearing, the government proffered evidence that defendant had the motivation to flee, the inclination to flee, and ties to at least one foreign country where he would be accepted as a citizen. Regarding defendant’s motivation, the government proffered facts showing defendant was facing years in prison and that the evidence against defendant was strong. Regarding defendant’s inclination, the government proffered evidence of a bag of money and identification documents at the ready in defendant’s closet. Also of significance was the government’s evidence that defendant had attempted to obstruct justice while on pretrial release and, thus, had violated the previous order of the Court. Regarding defendant’s ties to a foreign country, the government offered a travel itinerary and a hotel receipt showing defendant and his wife had traveled to Israel in December 2007 – within a year of the detention and revocation hearing. The government also proffered evidence that two other Agriprocessors’ managers (both believed to be Israeli citizens) had fled to Israel in the wake of the government’s investigation. These were defendant’s managers; and would constitute contacts for defendant in Israel in the event he were to flee. They would also be sources of information for defendant regarding how to flee to Israel. Finally, the government offered the evidence at issue – that defendant has de facto duel citizenship in Israel by virtue of Israel’s Right of Return law. The government’s argument that defendant is incrementally more likely to flee because of his de facto citizenship in a foreign country is hardly unusual. A defendant’s foreign ties - including foreign citizenship - are routinely relied upon as evidence of flight risk. See, e.g. United States v. Maull, 773 F.2d 1479, 1488 (8th Cir. 1985) (that defendant “had numerous connections with people living abroad who might be willing to assist him and was fluent in Spanish and capable of traveling with ease through many countries in South America” was a factor justifying defendant’s pre-trial detention); United States v. Cantu, 935 F.2d 950, 951-52 (8th Cir. 1991) (upholding order of detention where defendant had previous drug conviction, the evidence against defendant was strong, defendant faced substantial prison time if convicted, and defendant lived near the border and worked in Mexico); United States v. Amirnazmi, No. 08-429-01, 2008 WL 4925015 at *2 (E.D.Pa. Nov. 18, 2008) (unpublished) (ordering detention and stating, "[t]his Court also found that Defendant is not without financial and practical means by which to flee the jurisdiction, even though the Government holds his passport. Defendant is a dual citizen of both the United States and Iran and ‘any one that has dual passports, dual citizenship with passports even though they are now retained by the federal government, is always suspect of having an available avenue to flee'"); United States v. Arvanitis, 667 F.Supp. 593, 597-598 (N.D.Ill. 1987) (ordering detention of a naturalized United States citizen, born in Greece, and finding that, despite an extradition treaty with Greece, defendant could "easily" obtain a Greek passport on "relatively short notice"); United States v. Zarger, No. 00-CR-773-S-1 JG, 2000 WL 1134364 at *1-2 (E.D.N.Y. Aug. 4, 2000) (unpublished) (ordering detention of Israeli citizen who had lived in the United States since he was seven years old based on defendant’s ties to Israel and recent trips there); United States v. Saani, 557 F.Supp.2d 97, 99 (D.D.C. 2008) (ordering detention and stating, "Defendant is a citizen of both Ghana and the United States, and until recently held passports from both countries. While Defendant's various passports have now apparently been seized by the Government, Defendant may still be able to effect reissuance of his Ghanian passport") United States v. Arndt, 329 F.Supp.2d 182, 198-99 (D.Mass. 2004) (ordering detention of United States citizen, stating, "[t]he defendant is a highly educated individual who appears to have traveled frequently in the past" and noting the defendant's business partner was a Venezuelan national). 

That defendant’s right to foreign citizenship is based upon defendant’s cultural heritage is solely a matter of foreign law. It simply makes no difference, for the purposes of the government’s argument, how that right is derived. Accordingly, it is a mischaracterization to say that the government’s argument improperly accounts for defendant’s race or religion. Indeed, the opposite is true. If the government were to forego its argument regarding defendant’s right to foreign citizenship, it would be treating defendant differently based upon defendant’s cultural heritage. Defendant should not be treated differently than other defendants because his right to foreign citizenship – and corresponding incentive to flee – is based upon what would be considered a suspect classification under the law of the United States.

If Canada had a program that granted automatic citizenship to any American who chose to move to Canada, would all Americans then be judged as flight risks?

Of course not.

A person's risk of flight would continue to be determined by many factors. The possibility of obtaining Canadian citizenship would only enter in if the person already had strong ties to Canada, had the motivation and means to flee and had other clear risks of flight.

Let's look at Rubashkin's case:

1. He has strong ties to Israel, including many friends and some family who live there. That includes a large network of Chabad-Lubavitch institutions more than willing to take him in.
2. Two of his managers fled indictment. One has been spotted in Israel; the other is believed to be there, as well. The fact that both are Israeli citizens only strengthens the government's case because presumably these men and their families will be willing and able to help Rubashkin.
3. A large amount of cash was found in Rubashkin's closet packed together with travel documents in a carry-on-sized bag.
4. Rubashkin is potentially facing more than 50 years in prison, and more charges are expected.

As far as I know, the government did not cite the Law of Return during Rubashkin's bail hearing after his first federal arrest. Indeed, he was granted bail at that time and was not deemed a flight risk.

But the additional charges and the many added years of potential prison time that come with them, the bag of money and travel documents, and the escape of his two managers changed the equation.

Added to that is his alleged destruction of evidence after being released on bail.

Based on the evidence so far presented, the US Attorney was correct in viewing Rubashkin as a flight risk. (By this I mean he was correctly doing his job by making that claim. I do not necessarily mean that Rubashkin is an actual flight risk.)

Rubashkin has every right to fight that claim. But he should have done so in the courts, not in the media. And he should not have used the government's use of the Law of Return to try his case in the media.

I think there is an actual difference between being a dual citizen and having the potential to be a dual citizen.

An American who carries Israeli citizenship is a potentially greater risk of flight, just as a an American citizen  who is also a French citizen or an American citizen who is also a Polish citizen is also a potentially greater flight risk.

An American Jew without Israeli citizenship is, I think, in a different category. His ability to gain nearly automatic Israeli citizenship should be of lesser concern than someone who already is a dual citizen.

This lesser concern should only be raised when other factors first create a possible flight risk. Then, if the person has close ties both to Israel and Israelis that can be clearly demonstrated, it may be correct to raise the Law of Return as an issue. But, again, this should only be possible when other factors – like a "tote bag" filled with $20,000 in cash and travel documents found on the floor of one's closet, and the potential to spend 52 years in federal prison – are first demonstrated.

If Israel had a better track record of extradition – which would need to include a much better track record of arresting people whose extradition is pending – a signed waiver of extradition would be useful for removing the Law of Return as a factor. (Just as this type of waiver be useful for removing those yearly family vacations to Warsaw to visit Cousin Jaroslow as a factor - as long as the person in question was not a dual citizen of the US and Poland.)

But Israel has a spotty record, both in finding people the US wants to extradite and in extraditing them once found.

For those of us in the Jewish community concerned with potential misuse of the Law of Return by unscrupulous or over eager prosecutors, perhaps the best thing we could possibly do is to tell Israel loudly and clearly that it must honor its extradition treaty with the US fully, completely and in a timely fashion – and that must include quickly arresting those wanted for extradition.

If Israel – which has taken real steps in past two years to improve its compliance with its extradition treaty with the US – can fully bring that compliance up to where it should be, then prosecutors should have no objection to a defendant proffering a waiver of extradition to obtain bail.

In Rubashkin's case, the other factors might outweigh such a waiver.

And that is, in effect, what the magistrate judge ruled:

Much of the Defendant's argument is directed to the court's reference to Israel's Law of Return. Defendant attaches too much significance to that single reference. At the time of hearing, Mr. Weiss made it clear that if Defendant attempted to seek refuge in Israel, he would be subject to extradition. Mr. Weiss served as an assistant United States Attorney for 18 years, and the Court accepted his representation. 

The judge went on to deny bail.

Again, the proper way to handle this situation was to appeal the magistrate judge's ruling.

Rubashkin did not want to do so because he is trying to move his case to another jurisdiction or at the very least to have someone other than Judge Linda Reade, the court's chief judge, hear his case.

Reade is a no nonsense judge who is unlikely to be taken in by Rubashkin's claims of religious piety and charity, and has already ruled against agriprocessors in another case.

The magistrate's ruling must be appealed to the court's chief judge – Linda Reade. Rubashkin's legal team feared that making this appeal would destroy their chances of moving the case.

So, instead they chose to try the case in the media. In doing so, Rubashkin and his lawyers along with the rabbis who enabled them took the Law of Return and elevated it from a minor part of his case to a major international issue.

That is not good for the Jewish community or for Israel.

And it was completely unnecessary.

The documents: Part 1, Part 2, Part 3.