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Jerusalem: The City Without A Country

from the November 08, 2011 eNews issue

"Jerusalem will remain the capital of Israel and it must remain undivided," Barack Obama once told a pleased American Israel Public Affairs Council (AIPAC). "As president I will never compromise when it comes to Israel's security," he assured the powerful US-Israel lobby. That was June 3, 2008.

Less than three-and-a-half years later, the Obama administration has pushed a different position regarding Jerusalem. The administration's extreme reluctance to recognize Jerusalem as Israel's capital came to light in August, when the U.S. State Department issued a press release to say that United States citizens born in Jerusalem could not have "Israel" listed as their birth location. The White House even removed all references to "Jerusalem, Israel" from photo captions of Vice President Joe Biden's March 9, 2010 visit to the Holy Land, leaving just "Jerusalem" - a city bereft of a country.

Now, the U.S. Supreme Court has been asked to rule on a 2002 law that gives U.S. citizens born in Jerusalem the right to declare "Israel" as their birth country in contradiction of a U.S. State Department policy.  Foreign Affairs Manual Volume 7 on Consular Affairs (7 Fam 1300 Appendix D) states that "Jerusalem" alone will be listed as the birth place of American citizens born in the city after 1948.

When Ari and Naomi Zivotofsky, the American parents of eight-year-old Menachem Binyamin, tried to use the 2002 law to have their son's birth location listed as "Israel", the U.S. embassy in Tel Aviv refused.  The State Department's policy has been enforced, even though Menachem Binyamin was born in Shaare Zedek Hospital, which is in West Jerusalem.

"If a US citizen is born in Tel Aviv, his passport will designate his place of birth as Israel. But in the case of Jerusalem, the US Consular Department will not give the country of birth as Israel," Menachem's father told The Jerusalem Post in August. "And on his Consular Report of Birth, it's even more blatant – the document is supposed to list both the city and the country of birth, and in Menachem Binyamin's case, the country field has been left completely blank."

Before The Justices:
Arguments in Menachem Zivotofsky vs. Hilary Rodham Clinton were made before the U.S. Supreme Court on Monday, November 7, and the high court's decision could affect more than 50,000 Jerusalem-born Americans.

The court case is actually not so much about what the justices think of Israel as it is about which branch of government – the executive or the legislative – currently has the greatest say in this situation. Does the State Department's foreign policy have greater import than a law passed by both houses of Congress (and signed by a former president)?

In arguments on Monday, the Zivotofsky family's lawyer, Nathan Lewin, argued that Congress' long-held power to regulate passport content trumps the Executive Branch's foreign policy prerogatives. In response, the Obama administration's Solicitor General Donald Verrilli claimed that the president has had exclusive authority to recognize foreign nations since the time of Washington.

For their part, the Zivotofskys would like to avoid discrimination as supporters of Israel. According to the State Department, persons born before 1948 are free to designate "Palestine" as their place of birth in areas later annexed by Jerusalem, yet persons born in Jerusalem after 1948 have no freedom to designate "Israel" as their place of birth.

While the State Department has had a longstanding policy against declaring the national status of Jerusalem, previous administrations have not seriously enforced it. Elliot Abrams, Special Assistant to the President and Senior Director on the National Security Council for Near East and North African Affairs under George W. Bush, rejected the idea that the Bush Administration had refused to place Jerusalem in Israel. "The record will show that the Bush Administration did not have a hard and fast rule that prohibited referring to Jerusalem that way at all times and in all statements and press releases," Abrams told Jennifer Rubin at The Washington Post.  Rubin points out that the Bush administration did not use continued building in Jerusalem as a barrier to peace negotiations, either.

At the same time, the Zivotofskys were not able to get "Israel" on their son's passport and birth certificate even back in 2002 when Bush was president.

The Anti-Defamation League (ADL) has jumped into this fray on behalf of the Zivotofskys. ADL National Director Abraham H. Foxman has energetically attacked the State Department's policy, saying, "Unfortunately, it has been tolerated and defended for so many years regardless of what administration was in office. It's insulting that the State Department refuses to make this simple change to identify American citizens as having been born in Jerusalem, Israel. It borders on the irrational, and it's time it ended."

Perhaps the biggest question is whether the Supreme Court should be getting into the mess at all. Justice Antonin Scalia agreed that Congress "has an innumerable number of clubs with which to beat the executive." And if the other two branches have their own means to work through the issue then, Scalia asked, "Why is it any of our business which is the better foreign policy position?"


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