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Denial of bail to Rubashkin fueling legal controversy

By Ben Harris · January 6, 2009

NEW YORK (JTA) -- Nearly from the moment federal immigration agents raided the Agriprocessors kosher meat plant in Postville, Iowa, on May 12, supporters of the company alleged that it was being unfairly singled out by the government and unjustly excoriated in the media.

Nearly eight months later, a judge's denial of bail to the plant's former manager, Sholom Rubashkin, has drawn the attention of several national Jewish organizations and provided those who see anti-Semitic motives in the government's behavior with their best ammunition.

At a hearing Nov. 19 in U.S. District Court for the Northern District of Iowa, federal prosecutors argued that Rubashkin was a flight risk in part because Israel grants automatic citizenship to Jews. In a subsequent filing with the court, the government claimed that Rubashkin has “de-facto dual citizenship.”

In two separate rulings, Magistrate Judge Jon Scoles sided with the prosecution and ordered that Rubashkin, who faces an array of charges related to his management of the packing plant, be detained until trial. An appeal is pending before the chief justice of the Iowa court, Linda Reade.

“It really boils down, if you are a Jew, special rules apply to you,” said Rubashkin attorney Guy Cook.

The prosecution's argument, and Scoles' endorsement of it, has prompted the Anti-Defamation League and Agudath Israel of America, a fervently Orthodox umbrella group, to appeal directly to the U.S. attorney general, Michael Mukasey, a practicing Orthodox Jew.

In letters last month, the groups argued that by invoking the Law of Return, prosecutors effectively claimed that all Jews are inherently a greater risk of flight. Both groups warned that Scoles, in ruling against Rubashkin, had set a dangerous precedent with profound implications for American Jews.

“The most troubling aspect here is that the government does not appear to have alleged, nor does the Detention Order conclude, that Defendant Rubashkin has any particular ties to Israel (he is alleged to have visited Israel in December 2007),” the ADL's national director, Abraham Foxman, wrote to Mukasey. “Instead, the government and the Detention Order appear to conclude that simply because Defendant Rubashkin is Jewish, and because Jews may have a claim on Israeli citizenship, his religion is relevant to a bail hearing.”

Though American Jews have long been sensitive to the charge of dual loyalty, invoking the Law of Return as grounds for detaining a Jewish defendant is believed to be unprecedented in the annals of American justice.

“Although prosecutors have, to my knowledge, occasionally skirted close to an argument singling out Jews and Israel in past cases in New York, I've never seen it expressed or applied as blatantly as in the Rubashkin case,” Nathan Lewin, a prominent Washington attorney and former counsel to Agriprocessors, told JTA.

Prosecutors had cited other evidence arguing against releasing Rubashkin, including the discovery of a travel bag with thousands of dollars of cash and travel documents for family members at Rubashkin's home at the time of his arrest. They also noted that two other former Agriprocessors workers suspected of crimes are believed to have fled to Israel.

Rubashkin's attorneys countered that he has deep ties to his family and community, several members of which agreed to put up the equity value of their homes as a guarantee that Rubashkin would not flee. Rubashkin told the court he was willing to put up millions of dollars in bail money and consent to round-the-clock security monitoring at his own expense.

Jonathan Edelstein, a New York lawyer who co-authored a 2002 legal journal article about Israeli extradition law, called the government's argument “98 percent bogus” and said Rubashkin would quickly be returned if he did end up in the Jewish state.

“[Rubashkin] is neither a citizen or a resident,” Edelstein said. “He would have no protection if he flees to Israel. They would send him right back."

In his first ruling in the case, Scoles cited the Law of Return in deciding that no combination of factors could reasonably guarantee Rubashkin's appearance at trial. In a subsequent ruling on Dec. 22, in which he denied Rubashkin's request for reconsideration of the original detention order, Scoles seemed to back away from the Law of Return argument.

“Much of the Defendant's argument is directed to the Court's reference to Israel's Law of Return,” Scoles wrote in denying the request. “Defendant attaches too much significance to that single reference. At the time of hearing, [Rubashkin attorney Baruch] 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.”

In the second of two letters to Mukasey, Agudah's executive vice president for government and public affairs, David Zwiebel, acknowledged that Scoles apparently had rejected the government's claim about the Law of Return. Nevertheless, the organization remained concerned that prosecutors had even resorted to such an argument. Zwiebel asked Mukasey for a meeting with Jewish leaders to address their concerns.

A Department of Justice spokesperson said the letters are being reviewed.

Meanwhile, two organizations affiliated with Chabad-Lubavitch, the Brooklyn-based Chasidic group with which Rubashkin is associated, have begun raising money for his legal defense. One of the organizations, the National Committee for the Furtherance of Jewish Education, is using money from its Pidyon Shevuyim Fund to help secure Rubashkin's release. Neither the ADL nor Agudath expressed a view on Rubashkin's guilt or innocence, or whether he ought to be released on bond.

“We are a group of guys who, No. 1, are looking to help Rubashkin get out on bail and, No. 2, to voice our concern because we believe that much of this attack is not just an attack on the Rubashkin family and Agriprocessors, but it's really an attack on kosher food.,” Rabbi Shea Hecht, the chairman of the National Committee and a member of a working group on the Rubashkin issue, told JTA. "And it's questionable if it's one step beyond that -- an attack on Jews.”

(Staff writer Eric Fingerhut in Washington contributed to this report.)

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