A City Without a Country

“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 U.S.-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. In November, the U.S. Supreme Court heard a case 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 birthplace 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 U.S. citizen is born in Tel Aviv, his passport will designate his place of birth as Israel. But in the case of Jerusalem, the U.S. 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. Hillary 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 his opening arguments, 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

Israel, 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 long-standing 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.

Jerusalem

While the United States might be confused, the Israel Ministry of Foreign Affairs has no qualms about stating up front that Jerusalem is Israel’s capital. The Knesset, the Supreme Court, the Government Village, and the Bank of Israel all are situated firmly in Jerusalem and not the smaller cities of Tel Aviv or Haifa. Israel considers Jerusalem its appropriate and historic capital, and Prime Minister Benjamin Netanyahu has firmly maintained the position that Jerusalem must remain a united city. Israel does not treat the division of Jerusalem as an option.

The current conflict was formalized with the birth of the Israeli state in 1948, when the United Nations—in a cliffhanger majority of one vote—partitioned Palestine into two states, one for Jews (Israel) and one for Arabs (Jordan). The Jewish suffering of the Holocaust was a tremendous impetus for the world to accommodate the Jews and give them a homeland to which they could return and flee persecution in other parts of the world. The Arabs rejected the partition plan and attacked the new Jewish state, initiating the 1948 Israeli War of Independence.

The 1948 war led to the division of Jerusalem into the eastern and western parts. Israel took East Jerusalem during the 1967 Six Day War, including the Old City and the Temple Mount. The city limits of Jerusalem were expanded over the years to include land from the West Bank, and those expanded parts of the city were annexed by Israel on July 30, 1980. On that day, the Knesset passed the Jerusalem Law, which declared that “Jerusalem, complete and united, is the capital of Israel.” In response, however, the United Nations Security Council passed Resolution 478 (with the U.S. abstaining), calling the Jerusalem Law “null and void.”

Jerusalem has remained a stumbling block to peace. The city is the heart and soul of the Jewish nation and religion, yet the Palestinians claim the city was theirs before the 1967 War. Jerusalem was the once-great capital of King David and the site of Solomon’s Temple, later rebuilt and expanded as Herod’s Temple. The Western Wall in East Jerusalem is all the Jews have left of the Temple (its retaining wall) that once stood with the Spirit of God dwelling between the cherubim in the Holy of Holies. Muslims also consider Jerusalem to be a holy site, building the Al-Aksa Mosque on the Temple Mount in A.D. 687 to commemorate the site from which Mohammed made his Miraaj or Night Journey into the heavens.

For 44 years, Jerusalem has remained a point of contention between Israelis and Arabs, since the side that rules Jerusalem will hold dominion over the other’s holy sites. Neither the Israelis nor the Palestinian Authority have been willing to give up any part of the Temple Mount, and those positions do not look likely to change anytime soon.

The Third Branch

Jerusalem remains the hub of Israel’s government. There is currently no Palestinian state, and Israel is the only existing country claiming Jerusalem. Congress has been willing to allow Americans born in Jerusalem to claim Israel as their birth country. Yet, the State Department has made an effort to remain “neutral” in the conflict by not referring to “Jerusalem, Israel.” Even a boy born in West Jerusalem may not legally claim Israel as his birth place, according to the State Department.

In November, the Supreme Court justices sought to approach the issue with caution as well. Justice Sonia Sotomayor asked, “What happens if there is a peace accord tomorrow, and Israel gives up any claim to sovereignty over Jerusalem?” There is more likelihood that the Jordan will flow uphill than that Israel will give up its claims to the city, but even that’s not the real issue as far as the U.S. Supreme Court goes. 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?” [A ruling is expected in mid-2012. Stay tuned.]