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July 26, 2013 1:16 pm

Where is Jerusalem?

avatar by Jerold Auerbach

Israel's capital city Jerusalem.

As Mr. Bumble memorably said in Oliver Twist, “the law is a ass.” So it apparently remains, at least as recently revealed by the United States Court of Appeals for the District of Columbia.

The court unanimously voided a provision of the 2003 law signed by President George W. Bush, requiring the Secretary of State to record Israel as the place of birth on the passport of an American citizen born in Jerusalem if the citizen or his legal guardian so requests. But Bush also issued a signing statement stipulating that he would not comply with a law that “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs.”

Menachem Zivotofsky was born several weeks later in Jerusalem to parents who were American citizens. His mother applied for a U.S. passport for her son, listing his birthplace as “Jerusalem, Israel.” But the State Department, for which Israel (and Congress) seemingly did not exist, would only list “Jerusalem” as his place of birth. Such is reality in Foggy Bottom.

Menachem’s parents, proud that their son was born in Israel, where they had moved a decade earlier, sued the Secretary of State. That precipitated a litigation saga that may yet put Jarndyce v. Jarndyce (in Bleak House, another Dickens masterpiece) to shame. Although the Justice Department urged the judiciary to avoid involvement, the Supreme Court ruled that the dispute between congressional and presidential authority was indeed justiciable. And so it has been.

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In any other circumstances, listing the country of birth is not an issue. As Nathan Lewin, the renowned litigator of Jewish causes who argued the Zivotofsky case in court pointed out, if an American citizen is born in Paris the passport says “France”; if in Tel Aviv, “Israel.” Only Jerusalem is a city without a country.

If that seems like a double standard, it is. It is also as old as the State of Israel. Every president since Harry S. Truman has declined to recognize Israeli sovereignty over Jerusalem. In 1948, when the newborn Jewish state convened the inaugural meeting of its Knesset in Jerusalem, the American government would not even send a representative to the ceremonial occasion. As the State Department explained: “the United States cannot support any arrangement which would purport to authorize the establishment of Israeli . . . sovereignty over parts of the Jerusalem area.”

If there was anything worse than acknowledging Israeli sovereignty when it controlled only half of Jerusalem, it happened in 1967 when Israel, winning the war that Arab states waged against it, asserted sovereignty over all of it. Not only have American presidents not recognized Israel as the capital of Israel; they have not even been willing to recognize it as a city within the sovereign territory of the Jewish state.

As recently as 2010, President Obama bracketed the fate of Jerusalem and Palestinian refugees as “wrenching and emotional issues” that required “just and fair” resolution – as though Israeli sovereignty over the city was unjust and unfair. If anyone had suggested that the future status of Jerusalem was resolved millennia ago when King David made it the ancient Jewish capital, the president, like Captain Renault in Casablanca, would have been “shocked, shocked.”

The State Department has employed its familiar language of obfuscation in compliance with presidential policy. “As a general rule,” its instructions stipulate, “enter the country of the applicant’s birth in the passport.” Jerusalem is the solitary exception. For an applicant born there, it instructs: “Do not write Israel” on the passport because Israel “does not include Jerusalem.” For any applicant born there after 1948, the passport must read “Jerusalem,” not “Jerusalem, Israel” or, perish the thought, “Israel.”

The Court of Appeals opinion refers to “the Executive branch’s consistent policy of neutrality.” That is a preposterous description of its consistent policy of prejudice, as though Israel did not exist. The Constitution may vest the president with exclusive authority “to conduct the Nation’s diplomatic relations with other states.” But non-recognition of Jerusalem as Israel’s capital has always been political, not legal. As long ago as 1984, an appropriate year for such illogical – and ideological – gymnastics, Secretary of State George Shultz persuaded President Reagan that recognition was “potentially very damaging to the success of the peace process.” Thirty years later, the “peace process” continues to go nowhere while diplomatic double-talk persists.

Now that the Court of Appeals has spoken, the Zivotofsky case will wend its way back to the Supreme Court, which has already ruled that it does not present a political question. Rather, it held on the first round, courts should “enforce a specific statutory right” that Menachem, like 50,000 other Americans born in Jerusalem, possesses.

Attorney Lewin expressed the wish that Menachem will have a passport that recognizes Israel as his birthplace before his bar mitzvah.

Jerold S. Auerbach is the author, most recently, of Against the Grain: A Historian’s Journey (Quid Pro Books, 2012)

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