Supreme Court defends Executive right to be wrong

No. 13–628. Argued November 3, 2014—Decided June 8, 2015 Petitioner Zivotofsky was born to United States citizens living in Jerusalem. Pursuant to §214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, his mother asked American Embassy officials to list his place of birth as “Israel” on, inter alia, his passport. Section 214(d) states for “purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” The Embassy officials refused to list Zivotofsky’s place of birth as “Israel” on his passport, citing the Executive Branch’s longstanding position that the United States does not recognize any country as having sovereignty over Jerusalem. Zivotofsky’s parents brought suit on his behalf in federal court, seeking to enforce §214(d). Ultimately, the D. C. Circuit held the statute unconstitutional, concluding that it contradicts the Executive Branch’s exclusive power to recognize foreign sovereigns. http://www.supremecourt.gov/opinions/14pdf/13-628_l5gm.pdf

NOT RECOGNIZING JEWISH SOVEREIGNTY IN JERUSALEM IS TRADITION!

While disappointing the case is not surprising as it has been the traditional role of the president to conduct foreign relations and only have them undermined by congress after the fact, I’m looking at you “League of Nations!” The tradition of not recognizing Jerusalem really goes back to happy go lucky days of the Young Turk Movement (CUP) of the Ottoman Empire. During that time, places like Jerusalem which enjoyed a Jewish majority were to have certain amount of rights under Hatt-ı Hümayu and would have one Jews a certain amount of autonomy in those cities were Jews were a majority such as Jerusalem in theory. In practice, the Turks cared very little about how the Middle East or anywhere else was ran so long as they got their taxes paid and were naturally predisposed to Arab tyranny so long as it did not interfere with Turkish tyranny.

 Later, under great pressure from the British during the mandate period Jerusalem was to become an “international” city under the League of Nations. This was in contravention of the Mandate but the separation of Palestine (Israel) from its capital was part of a second partition that would also intended to give away the West Bank. Of course the moment Palestine changed its name to Israel and declared independence, several armies attacked Israel, ending with Jordanian occupation of Jerusalem and the West Bank. Both of those territories were ceded for the sake of peace, Jerusalem, including “East Jerusalem” also known as the Jewish Quarter, was expected to remain a Jewish city albeit one under nominal UN rule.  Instead Jews were ethnically cleansed from the city, even Jewish Tombstones were used to pave roads, gutters and sewers and “Syrians” were brought in to replace these “Palestinians” who would be forced to go to Israel and become Israelis. Only Britain recognized the occupation of Jerusalem although the UN (successor to the League of Nations) would not lift a finger to defend Jerusalem (supposedly a city under the direct domain of the UN) or the religious rights of Jews but neither did it recognize the occupation of the Jewish capital nor did anyone but the British who wanted to reconstitute Mandate of Palestine as Transjordan.  There was no international support for the Jordanian occupation nor was there any belief that Jordan had any claim to dispute the Israeli one but Israel which was militarily unable to liberate the city and the population having been driven out was prepared to let sleeping dogs lie in exchange for peace. However, Israel’s neighbors were too bellicose for peace, Arab Nationalism threatened worse than ethnic cleansing on Israelis as Arab governments were blatant about committing genocide.  This led to a war, to the liberation of Israeli territories including the rest of Jerusalem.  In last two millennia only one nation has ever had a claim to Jerusalem and it is Israel, the Palestinian desire to build a capital merely represents an attempt at nest stealing. That doesn’t mean the US has to recognize Israeli sovereignty over its capital if doing so is inconvenient for the US. The US ignores far worse facts about its allies than the ownership of its capital city, especially in the Middle East. If we had a spreadsheet of how Middle Eastern States spend their money, I suspect Israel would be the only nation we would recognize. Perhaps it is poetic that was we turn a blind eye to the injustice and terrorism of our allies that we occasionally also ignore the injustice against our allies for political convenience.

TURN AWAY THE CHILD

If we are not going to recognize the capital of Israel as the birthplace for the Zivofsky child then why issue him a passport in the first place? It seems to me if we can’t recognize where he was born then we can’t recognize the child at all.  Who would we ask to substantiate the birth, the Israeli government? I suppose we could go the other way and simply allow anyone to claim their birth in Jerusalem so long as they do not have contradictory birth certificates and simply never question it as we don’t recognize the sovereignty of Israelis to issues birth certificates in their capital.  I can imagine the number of people who will claim to have been born to Americans in Jerusalem but to have been abandoned by their parents on a trip to Karachi. We accept them all as citizens. Why not? Only congress will be angered. Of course the whole issue is petty, we could easily issue a passport with Jerusalem, Israel as the place of birth and not recognize Israeli sovereignty.

THE US SHOULD NOT CLAIM TO BE AN HONEST BROKER

One thing we should not do, and the Obama administration is not the first to do this is use our lack or recognition of Jerusalem as the capital of Israel as proof of our being “honest brokers” in the disputes between Israelis and Arabs nor in anyway helpful to resolution of the disputes between Israelis and Arabs. We do this for own convenience, because our allies and especially our Arab allies expect us to but cutting the baby in half – at least in Jewish tradition --  is not justice.  Had the US taken the more difficult position dating back at least to the Johnson administration of recognizing Israeli’s sovereignty in the city of David, something The Torah, The Koran, the San Remo agreement and even the League of Nations (therefore the UN) recognize then the US could be honest brokers and simply tell the Palestinians they may have some right to pray in Al Aqsa but they do not have land claims or claims of sovereignty. If we do that, if we can take Jerusalem off the list of items impeding a final status agreement between Israelis and Arabs the world and the US would be far better off and the peace that has frustrated presidents from Carter through George H. Bush, Clinton and George W. Bush and now President Obama might have been a fact by now.   Only one case can be made for not recognizing Israel’s sovereignty of Jerusalem that is problem of the holy places but Israel has been the best guardian of the holy places in Jerusalem’s history. Israel has allowed the Waqf to run the Islamic holy sites often to the detriment of Jewish access to their holy sites.  Israel has followed Article VI of the Faisal–Weizmann agreement despite the Arab site completely violating both the rules and spirit of that agreement. The fact is that by dangling the injustice of Palestinians snatching a piece of Jerusalem by virtue of their constant chanting for it, we risk killing the babe to appease them. The Supreme Court was correct in its ruling, despite the fact that listing Jerusalem, Israel is in the interest of the State Department for both reasons of efficiency and security and cannot affect our foreign policy directly unless the Executive Branch makes an issue out of it as it has done in this case and frankly the injustice of not recognizing the Israeli capital is not relevant because had the Zivotofsky family won the case there would have been justice but no protection for the President from an unforeseen case where US diplomacy would have actually been jeopardized. Now that Presidential rights have been successfully defended, it is time to demand the Whitehouse help the Zivotofsky family, Jerusalem and contribute to resolving the Israeli-Arab conflict not by cutting Jerusalem in half but letting the Zivotofsky child have a passport that names the child’s place of birth.