That's the issue in 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 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 Religion Clause for the pointer.