US Supreme Court confirms State Department delusion: Jerusalem is a stand-alone city

Menachem Zivotofsky, left, and his father Ari posing in front of the Supreme Court with their attorney Alyza Lewin and Lewin’s father Nathan, November 3, 2014 (Photo credit: Rikki Gordon Lewin)

We have witnessed the ongoing surrealism (surreality?) of the US State Department insisting that Jerusalem is not the capital of Israel, and this week the US Supreme Court confirmed this stance when they issued their decision that Menachem Zivotofsky cannot write “Jerusalem, Israel” in his US passport as his birth-place, but can write only “Jerusalem” – as if it’s a stand-alone country or a city-state.

We could and should be outraged at this ridiculous attitude, and indeed President Ruby Rivlin takes the State Department to task:

But we can also take a small measure of comfort in that the Supreme Court didn’t take a stance on the status of Israeli sovereignty in Jerusalem itself as much as on the separation of powers in the American political system:

Competing claims to the Holy City were not the only timeworn and sensitive issue the justices contended with in their 6-3 decision on Monday, which upheld the State Department’s policy of not allowing Americans born in Jerusalem to list “Israel” as their birthplace. The Supreme Court in Zivotofsky v. Kerry waded into tensions dating to the founding of the United States over whether the executive or the legislative branch determines foreign policy.

The ruling effectively nullified a law passed by Congress in 2002 requiring the State Department to list “Israel” as a birth country for Jerusalem-born Americans, should the citizens request it. Like its predecessor, the administration of President George W. Bush, the Obama administration said recognition of another nation’s sovereignty over territory was a matter strictly for the executive branch.

Pro-Israel groups had hoped for a decision that would determine US recognition of Jerusalem as Israel’s capital. But after hearing judicial interjections during oral arguments on the case last year, some feared that that case was mutating into a broader issue over Congress’ role in determining foreign policy.

Marc Stern, who wrote the amicus brief filed by the American Jewish Committee arguing that recognition of another nation was a matter for Congress as well as the president, said the decision left intact the traditional American ambiguity over which branch determines foreign policy. “This issue has been unsettled for 200 years, and the court leaves much of it unsettled today,” he said.

Stern, the AJC’s general counsel, called the decision “as good a defeat as we could have suffered.”

That’s because Kennedy’s majority decision considered only the president’s right to recognize another nation’s sovereignty.

Yet the decision’s narrow cast drew expressions of relief from Alyza Lewin and her father Nathan Lewin, lawyers known for their pro-Israel and Jewish advocacy who represented Menachem Zivotofsky, the 12-year old Jerusalem-born American at the center of the case, as well as the array of Jewish groups that had backed Zivotofsky in friend of the court briefs.

“Justice Kennedy acknowledges that ‘the subject is quite narrow: The Executive’s exclusive power extends no further than his formal recognition determination,’” the Lewins said in a statement. “Congress’ broad powers to deal with foreign policy remain extensive and virtually unlimited.”

Jerusalem is Israel’s capital – it can’t be denied

In the light of this controversy, and especially taking into account the tensions between Congress and the Administration concerning Israel (e.g. Netanyahu’s speech to Congress), not to mention the cold neutrality if not outright hostility to Israel in much of the media, I was quite astonished to read this rebuke to the Administration about their stance on Israel – in CNN of all places!

Here’s Freda Ghitis delivering a short sharp cold shower of common sense in “Time to be honest about Israel’s capital“:

(CNN)Diplomacy sometimes creates moments of delusion, when learned men and women seem to lose touch with reality and speak in confusing sentences. That fact is on clear display when it comes to the issue of Israel’s capital.

Let’s be clear here: In every reasonable, logical way, the capital of Israel is Jerusalem. That is where the seat of government resides, where the country’s parliament stands and legislates and where the President, Prime Minister and Cabinet have their offices and meet. Whatever some governments or politicians might say to the contrary, this fact should be accepted by everyone.

Now, this should not preclude parts of Jerusalem becoming part of another country, say, a future Palestinian state. But when it comes to Jerusalem, as we were reminded Monday by a Supreme Court ruling, nothing is simple.


Sounds simple, doesn’t it?

Sadly, it isn’t. In reality, in many situations where the U.S. government talks of Jerusalem, it refuses to say in what country that city is actually located. Indeed, official U.S. policy says the status of Jerusalem is unresolved, subject to the outcome of Israeli-Palestinian negotiations. But while this position is based on the laudable wish to avoid harming the prospects for Israeli-Palestinian peace, there are surely better ways to achieve the same goal without denying reality.

If you want proof of how crazy this gets, I recommend watching a 2012 exchange at the State Department, when a journalist asked the U.S. spokesperson what the capital of Israel is. It happened after an awkward incident, when the itinerary for a U.S. official traveling to the Middle East reportedly listed cities and capitals, including Jerusalem, Israel. The State Department said the announcement was “issued in error,” then released a new one, in which the name Jerusalem floated by itself, unmoored to any country.

As a result, a reporter asked the spokesperson where Jerusalem is. The response sounds like an Abbott and Costello routine.

The court was right in saying the executive should have wide latitude on foreign policy. That, however, doesn’t mean the U.S. stance should remain unchanged. America looks foolish, tying itself in knots with a convoluted, illogical policy.

This is despite the fact that a better, more reasonable approach is available.

Jerusalem was under Ottoman rule until 1917; then British rule until 1948. In 1948, when the British left, the Jews kept the newer, western side of the city, and Jordan captured the east. In 1967, Israel captured the eastern section and reunified Jerusalem.

Fast forward to recent years, and Israeli-Palestinian negotiations have focused on whether eastern neighborhoods, taken by Israel during the 1967 Six Day War, would be placed under Palestinian sovereignty to become the capital of a new state.

But U.S. policy should reflect the fact that the western side of the city is not in play, because the only people who reject Israeli sovereignty over the west are those who reject Israel’s right to exist. Why, then, does Washington not acknowledge that western Jerusalem, at the very least, is Israel’s capital?

When Obama traveled to Jerusalem in 2013, Prime Minister Benjamin Netanyahu pointedly told him, “It’s a profound honor to host you in our ancient capital.” In response, Obama watched his language carefully to avoid acknowledging that Jerusalem is in Israel.

It’s hard not to feel a little bit sorry for him, having to visit a country’s capital, standing with the Prime Minister, trying to pretend that you’re not actually there — or that the city isn’t really where it is. Or whatever it is the U.S. is trying to pretend.

Ghitis admits that her solution, of recognizing at the very least Israel’s sovereignty over West Jerusalem, will not be popular with either the Israelis or the Palestinians, but it certainly would be a step in the right direction. it would enable the US Embassy – and all the other foreign embassies, let’s be honest – to relocate to Jerusalem, and to allow reality a corner seat inside the surreal (there’s that word again) existence that we call teh Middle East.

Let’s also not concentrate only on the US Administration. While they are the most obvious focus of international foreign policy, we must not forget, as I just mentioned above, that ALL foreign governments do not recognize Israeli sovereignty in ANY part of Jerusalem, West or East.

One can’t help feeling that the world does not really want to accept that – contrary to millennia of indoctrination that the fact that the Jews were evicted from Israel proves that they have been discarded  by G-d as the Chosen People – the Jews have indeed returned to Zion and Jerusalem. Not only did we return, but we returned victorious. We “returned to history” to take control of our own destiny, and much of the world does not like this one bit.

We can call it anti-Zionism, Realpolitik, or simply “political sensitivity”.  But I call it out as antisemitism. How else to explain that a mere 19 years of illegal occupation by Jordan (not the Palestinians, they hadn’t been invented until 1964) 19 years in which the Jordanians and their Arab cohorts destroyed all the synagogues in the Jewish quarter, expelled all the Jewish citizens in a mass ethnic cleansing, has “fixed” Jerusalem as the city which “the Palestinians would like to make their capital”. There are a lot of things that I would like but can’t have, like a pink pony.

The answer is no – to the pink pony and to Jerusalem being the capital of any other nation other than Israel.

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11 Responses to US Supreme Court confirms State Department delusion: Jerusalem is a stand-alone city

  1. ShimonZ says:

    I find it hard to understand why a Jew, born in Jerusalem would want to be an American citizen. That seems to me to be the original delusion… self delusion.

    • anneinpt says:

      I agree with you in principle, but there is a practical aspect to having a foreign passport, for ease of travel.

      I myself have dual British-Israeli citizenship because I was born in the UK, and my Israeli-born children have it too because they “inherited” it from me and my husband.. On the other hand none of us had to make any effort to get the British passports or to keep them.

      I just had a look at my kids’ (expired) UK passports, and the British get around the problem very neatly by not listing country of birth at all for anyone, merely the town. So my birthplace is “London” (which could just as easily be London, Ontario) and my children “Petach Tikva”. (There is only one PT in the world. 🙂 )

  2. Elise Ronan says:

    SCOTUS didn’t confirm the State Department idiocy on Jerusalem, they merely interpreted the Constitution. There is separation of powers. The Constitutions is specific where Congress has powers in foreign affairs, and recognizing other nations is not one of them. That is the purview of the Executive, not the legislative branch. That Jerusalem was the center of this debacle was the fault of the complainants. They should have known better than to bring this case and should have also recognized the fall out from any purposeful misinterpretation of the ruling. This was not thought through by any imagination. This case was hubris pure and simple.

    By the way, this is also not simply the attitude of the Obama administration. Every US administration since the law was passed has written “signing statements” saying that they will not comply with the law as it violates separation of powers and executive foreign policy authority. While Obama is virulently anti-Israel, no matter what nonsense he tires to peddle, neither Clinton nor Bush 43 would be considered an enemy of Israel. So for each POTUS you need to review who the men were and what they actually did for Israel in the longrun and not base it simply on one action or inaction.

    POTUS has more on his plate than simply what Israel wants. Their job is what’s best for the USA. They weigh and balance realpolitik in much the same way that the PM of Israel does. I don’t believe any of the candidates (republicans included) when they talk about Jerusalem or Israel, for that matter. If continuing the fiction on Jerusalem meets US interests then that is what will continue until it becomes a better deal to recognize the capital of Israel. When someone becomes POTUS it is very different than being a candidate and saying what someone needs to say in order to get elected.

    How and why will there be a policy change is anyone’s guess. Considering it is based upon the 1947 partition plan is more interesting and telling about the US State Department than anything else. Is there discrimination and antisemitism underlying the actions of the State Department? I would consider Foggy Bottom the last bastion of antisemitism in the US government. Absolutely, but that is not what SCOTUS ruled upon. Do I think the policy will change as long as the US needs its Gulf allies or has interest in the Arab world? No.

    • anneinpt says:

      Elise, thank you for your thoughtful and enlightening comment. We non-American have great difficulty understanding the Constitution and the separation of powers so your explanation is extremely useful.

      Indeed I had read elsewhere that bringing this court case was a bad move on the part of the plaintiffs and it was bound to fail for the very reasons that you cite, and which actually happened. I get the strong impression that they brought the case on purpose in order to bring the whole issue to the public eye.

      I agree with you about all the Presidents not recognizing Jerusalem, and in fact mentioned it in my post. And of course I understand about realpolitik all too well.

      It’s just that it’s outrageous that not recognizing Jerusalem as Israel’s capital is what is necessary for realpolitik. It’s about time this changed. Though again, as you said, who knows if it will ever happen.

  3. Brian Goldfarb says:

    That journalist is a hero. Despite the State Dept.’s spokeswoman refusing to answer his repeated question, he made it abundantly clear what the issue is, and it has nothing to do with “final status” or anything else. If a sovereign state declares that its capital is here, provided that the “here” in question is clearly within the accepted borders of that country, then any nay-sayers can go and whistle “Dixie”, as Americans would say.

    No-one doubts that West Jerusalem is within the accepted borders of Israel (again, as Anne notes, leaving aside those who Israel to vanish), which were established in 1948/49 as a result of cease-fire lines, defined by the UN. Where the border should be is altogether matter, but until that matter is solved, in whatever manner it is solved, then the capital of Israel is located in West Jerusalem. I assume that when foreign Heads of State (including de facto ones like the UK Prime Minister – because the Queen is the H.ofS) visit the PM of Israel and/or the President of ditto, and/or the Parliament of ditto, they go to West jerusalem.

    Which either doesn’t exist or is in some sort of limbo-land – which is just another way of saying it doesn’t exist, despite the people who live there.

    Anyone who wants to see how a writer deals with this sort of double vision should read “The City And The City” by China Mieville. I heartily dislike his personal politics (he’s a member of the Socialist Workers Party), but this book imagines two cities sharing the same physical location, not completely overlapping, and examines how the two sets of inhabitants deal with this, while avoiding “seeing” the other lot.

    • anneinpt says:

      Brian, that book sounds like how Jerusalem is imagined by those who wish it to be the capital of two states. It can’t possibly work in real life.

      And yes, I do like those brave reporters who tackle politicians and catch them out on their idiocies.

      • Brian Goldfarb says:

        “Brian, that book sounds like how Jerusalem is imagined by those who wish it to be the capital of two states. It can’t possibly work in real life.”

        Spot on, Anne. It can’t. But it does, because it has to (in the book, it is only criminals (including political subversives) who cross back and forth). Oh, and super-police.

        What it is, is an exercise in how to survive in an impossible situation.

        I think that Mieville was imagining the European Balkans, where all sorts of nationalities, ethnicities and religions are intertwined and the various groups have to learn to live with each other, however imperfectly. And even if they sometimes fail, with disastrous results.

        Incidentally, Mieville was one of the SWP adherents who refused to believe that the leaders were actually the sexually exploitive creatures they turned out to be.

        And I’ve not even touched on their take on the Middle East and all things Jewish and Israeli. See my comments on Colin Shindler’s book on this issue, here:

  4. Reality says:

    I’ve said for years that it’s partly our fault by not insisting on any country wanting to send emissaries here have to kowtow to our demands of having their embassies move to Jerusalem.The problem originally started ,I think when embassies were originally established in Tel Aviv &no one wanted to rock the boat ever since.Having said that however,how many times do we read in the papers that John Kerry or whoever,went to the Palestinian capital of Ramallah!Really? It’s definitely time for our prime minister& president to close down any embassy from any country which refuses to move to Jerusalem.Alternatively we can move Israeli embassies around the world to other towns which are not capitals!

  5. Pete says:

    Astonishing. Will Israel start treating Hawaii as if it is an independent country?
    Any US tourist who is from Honolulu can only write “Honolulu” on their visa application (for Israel), but not “Honolulu, USA”.

    The whole world is just getting to be a really strange place.

    Pete, USA

  6. Pingback: The Six Day War: myths, facts and legalities | Anne's Opinions

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