A view of the Old City of Jerusalem..
(photo credit: REUTERS)
According to the US State Department, our first grandson – born almost exactly 15 years ago in Jerusalem, is a young man without a country. I well remember taking him to the US consulate in east Jerusalem to get his US passport, so that he’d be able to travel with his American-born parents to visit the grandparents back home. All went smoothly until I asked the woman processing the forms why there was no country listed after “Jerusalem” on the application.
“If your grandson had been born elsewhere in Israel,” she said in an apparently well-rehearsed speech, “his passport would have named the state. But Jerusalem’s status is and always has been in dispute, and that’s why we don’t list the country.” At the time my mildly muted amazement at this otherworldly illogic was tempered by the knowledge that the absence of a national designation for this apolitical little boy would have no bearing on his passport’s validity. Moreover, I understood the circumstances at the root of this bizarre State Department policy: its heavy-handed reluctance to offend Arab populations in the region.
Bridling my cynicism, I stopped short of asking the woman at the desk why the listing on the passport doesn’t read “Occupied Jerusalem.” But I hadn’t fully checked my impertinence at the consulate door.
“What if I were to insert the word Israel next to Jerusalem on my grandson’s passport?” I asked the clerk.
“I’d strongly advise against it,” she replied sternly.
“The best that could happen is that you’d be cited for unlawfully tampering with an official government document. The worst would be that you could be stopped at the border and thrown in jail.”
Lo and behold, that policy has now been endorsed by the US Supreme Court, which recently ruled that the president has virtually exclusive authority to determine national policy on things like the status of Jerusalem. It was a split decision: justices Samuel Alito, John Roberts and Antonin Scalia strongly and (in my view rightly) dissented. Scalia took the rare step of voicing his opinion from the bench, declaring that the majority’s view that putting the words “Jerusalem, Israel” on individual passports was tantamount to recognition of Israeli claims over the city was a “leap worthy of the Mad Hatter.” He went on to draw the reasonable conclusion that the birthplace requirement “does not require the Secretary to make a formal declaration about Israel’s sovereignty over Jerusalem.”
Instead, he wrote, it is a perfectly proper exercise of Congress’s power over citizenship and naturalization; if it happens to complicate our foreign policy, that is precisely what the Framers of the Constitution meant it to do.
“The president will exercise his powers on the basis of his views, Congress its powers on the basis of its views,” he said, while on the other hand, giving the president such plenary authority will “erode the structure of separated powers that the People established for the protection of their liberty.”
Jerusalem’s Mayor Nir Barkat responded to the decision even more pointedly.
“Just as Washington is the capital of the US, London is the capital of England and Paris is the capital of France, Jerusalem was and will always be the capital of Israel. But more than that, it’s the heart and soul of the Jewish nation.”
The case concerned the Foreign Relations Authorization Act, passed overwhelmingly by Congress in 2002, which instructed the State Department to “record the place of birth as Israel” on the passports of American children born in Jerusalem if their parents so requested.
That measure came seven years after the Jerusalem Embassy Act of 1995, ordering that the US embassy in Israel be relocated from Tel Aviv to Jerusalem. But the law has never been implemented, because of opposition from presidents Clinton, Bush and Obama, all of whom have invoked a clause allowing the president authority to postpone the move for six-month periods “in the interest of US security.”
In 2003 a group of senators wrote to Clinton urging him not to invoke the waiver: “Non-fulfillment of the law does no good to the US-Israeli relationship or to prospects for Arab-Israel peace.” When Mr. Bush was the Republican nominee for president, he vowed to begin the process of moving the embassy on his first day in office. What made them change their minds? Even though Israel won all of Jerusalem in the 1967 war, even though no Israeli government nor popular referendum would ever allow another city to be designated its capital, even though the Israeli-Palestinian peace process countenances no other place for that purpose – according to the US State Department Jerusalem remains no-man’s land. At best, this is little more than bureaucratic bone-headedness, a delusional semantic preoccupation that flies in the face of Middle East realities. It smacks of the politically correct geography books that often leave Israel off the world map, some of them still insisting that this tiny speck of land surrounded by Arab countries be called “Palestine.”
The court’s view on separation of powers will undoubtedly have repercussions – probably as soon as the president’s proposed nuclear deal with Iran is announced later this month. Will this ruling allow Congress to weigh in, as it certainly expects to do? Even with presidential prerogatives in place, Congress (representing all of us) should not be precluded from debating sensitive national security and foreign policy issues. To this day I wonder how we are more secure by our embassy not being located in Israel’s capital city or by keeping the status of Jerusalem in doubt after almost seven decades. How could our exceptional country allow itself such a clear abdication of common sense? That was Harry Truman’s most endearing quality, perhaps most openly on display in 1948 when he ignored the strong objections of his State Department to enable the US to become one of the first countries to recognize Israel. He certainly would have been appalled at the current state of affairs, where every single American embassy is situated in the host country’s self-designated capital city with the lone exception of Israel.
Obama and his State Department can operate all they want out of their own misguided sense of Middle East realpolitik. I’m saying that, regardless of what our grandson’s censored American passport indicates, neither the president nor his executive bureaucratic yes-men can deny the reality that Ruvi Weissman (named after his mother’s grandfather, who was a GI wounded during the Second World War) was proudly born in Jerusalem, Israel.
The author is a law professor at the University of Baltimore.