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July 26, 2013 1:16 pm

Where is Jerusalem?

avatar by Jerold Auerbach

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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.

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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  • I’d like to know why a person born in Taiwan is born in Taiwan not china.

    The bottom line is this…. What claim do the Muslims have to Jerusalem? Or even Israel? The word Jerusalem nor Palestinian is mentioned even once in the Koran… Yet Muhammad claims that Israel is the home of the people of the book.

    I think it’s also important to note that Jews were known as Palestinians until 1948 when overnight they became Israelis. Just sk the Jerusalem Post which was known as the Palestinian post until… You guessed it… 1948.

  • Jacobite

    Israel was a name first given to Jacob a son of Abraham, In short means to contend with G-D, The land of Israel formed part of the Covenant by G-D made with Abraham Isaac and Jacob, with Jerusalem its capitol, Since being gathered back in to that land it has been the centre of contention. The warning from G-D is to all those that trouble themselves with it will be will be to cut down. How many county’s of this world today demand the right to control what belongs to God? War will come to many over the dividing of Jerusalem. The Contention of Zion will soon be revealed, a new Leader will pronounce his Rule from his temple built in Jerusalem, Try as we may, we can make as many accords as we deem necessary but G-D’s word will be done, the times of the Gentiles will be completed.

  • pinchas

    where are our Jewish defenders of this matter: first and foremost Netanyahu and his Coalition? then AIPAC, ADL, AJC, the rabbis (feh)?

    goyim in general have a sense of pride and honor. they would not abide by this travesty, that their capital is divorced from their country. Jews in general DON’T have much pride and certainly not much of a sense of honor.

  • Efram Paul

    Do not forget, the president sets the rules in this matter, and the president is an anti-Israel pro-terrorist bigot. He worships at the altar of politically-coerced censorship. G-d himself could come down to tell him the truth, and our terrorist-in-chief would rebuff him. Politically-coerced censorship trumps religion, US interests, common decency, really any concept other than the venal politically-coerced censorship.

  • I believe the US should abide by its treaty obligations.
    In 1924, the US and Britain signed the Anglo-American Covention, a bilateral treaty which President Coolidge proclaimed in 1925.

    This Convention reproduces word by word the text of the Mandate for Palestine, which recognizes all the land west of the Jordan River as part of the Jewish National Home, which later turned into the State of Israel.

    As all international treaties, the Anglo-American Convention is considered “the supreme law of the land” in Art. 6 of the US Constitution.

    Even if the Convention expired in 1948 at the time the Mandate expired, the rights acquired by the Jewish people, as spelled out in that document, are valid do this day (see Vienna Convention on the Law of Treaties, 1969).

    Therefore, the Zivotofsky case is bound to expand into a much broader issue dealing with the Jewish People’s Rights to the Land of Israel. Not a minute too soon!

  • Yale

    I am curious: Is the EU willing to make grants to institutions based in the part of Jerusalem captured by Israel in 1948-9?

  • carpe diem 36

    when i was born in the city of Ramat Gan, my birth certificate indicates I was born in Palestine. when I became an american citizen my passport indicates i was born in Israel. my husband was born in Czecoslovakia but since there is no such country any more he was assigned Ukraine as is place of birth, even though he was not born in any part of Russia but that part of what was czechoslovakia was conquered by Russia during WWII so he became a russian citizen. only Jerualem is a State, as this child’ passport indicates. there is no state Jerusalem, so the honorable justices just created a new state out of thin air. it gets, in the words of Alice, curiouser and curiouser

  • Michael Segal

    What would an American passport say for someone born in Nablus in 1950, under the Jordanian occupation? How about between 1988, when Jordan ceded claims to the territory, and the 1993 Oslo accords?