November 10, 2011
by Daniel Halper
JINSA Visiting Fellow
Where is Jerusalem located? What seems like a simple matter of geography is actually a thorny diplomatic issue, one the U.S. State Department has aggressively avoided answering on official U.S. forms since the early 1990s. On passports and birth certificates, Americans born in Jerusalem are prohibited from adding "Israel" after the city name. Instead, Israel's capital is listed without a nation attached to it, a purposeful ambiguity meant to suggest that Foggy Bottom doesn't favor the Israelis or the Palestinians. Jerusalem's ultimate status will be resolved in a final peace agreement at some later date-or by the Supreme Court, which is hearing arguments today in the case of Menachem Binyamin Zivotofsky v. Hillary Rodham Clinton.
Menachem Binyamin Zivotofsky was born in Jerusalem on Oct. 17, 2002. Two months later, his mother, Naomi, an American citizen like her husband, went to the embassy in Tel Aviv to request a passport for her newborn. Where the form asks for place of birth-specifically, "City & Country as it is presently known"-Naomi wrote, "Jerusalem, Israel," and requested that the official document designate the birth place by the country. Naomi's request was not abnormal; it is standard operating procedure for Americans born in other foreign cities. Those born in Rome list Italy as their place of birth, just as those born in Tel Aviv list Israel.
But Naomi's request was denied. "This is the only group that is being denied the right to say, 'This is how I want to be described, this is where I was born,' " says Alyza Lewin, who, along with her father, Nathan Lewin, makes up the daughter-father legal duo representing the Zivotofskys.
The State Department's concern is political. "The status of the city of Jerusalem is one of the most sensitive and longstanding disputes in the Arab-Israeli conflict," the department's lawyers wrote in their brief to the Court. "For the last 60 years, the United States' consistent policy has been to recognize no state as having sovereignty over Jerusalem, leaving that issue to be decided in negotiations between the relevant parties with the peace process." More than 52,000 current U.S. passports list Jerusalem-no country-as the place of birth.
Congress tried to change this passport policy only months before the application for baby Menachem's passport was submitted. Tucked away in the Foreign Relations Authorization Act for Fiscal Year 2003, Congress included the following provision:
RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES - 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 language could not be clearer: If a passport applicant requests Israel on his passport, and he was born in Jerusalem, his wish must be granted.
And yet for the past nine years, the White House has argued that the decision isn't Congress' to make. President George W. Bush signed this piece of legislation-but after disavowing the passport provision with a signing statement arguing that it "impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch ... [to] speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states."
President Barack Obama's State Department seeks to continue Bush's policy on the matter. The department is arguing that enforcing the 2002 law will alter U.S. foreign policy in a way that the executive branch does not intend, sending a message to the Palestinians that the United States has sided with Israel over who gets Jerusalem in a future final-status agreement. The petitioner, on the other hand, contends that the issue at stake is far more limited: The Lewins argue that the congressional act is "an extremely narrow and limited correction of a discriminatory State Department practice."
It did not always apply only to Jerusalem. Alyza Lewin points to the precedent of Taiwan, toward which the United States has largely maintained a policy of "strategic ambiguity" about the island's relationship with China. "In 1994," she explained, "Congress passed a law that said that if individuals born in Taiwan want to put Taiwan down as their place of birth on their U.S. passport, then they should be allowed to put Taiwan." At the time, the State Department argued that the law would negatively interfere with the executive branch's foreign policy. Seventeen years later, the petitioners point out, there is "no apparent harm to relations with China" because of the law. The government contends that Zivotofsky is not a parallel case, since the Taiwan policy is "consistent with the United States' recognition that the People's Republic of China is the 'sole legal government of China' and 'Taiwan is a part of China.' "
So far, the case attracted the most public attention in August, when the White House was caught changing photo captions on its website so that "Jerusalem, Israel" would simply appear as "Jerusalem," an apparent attempt to conform with the State Department's position before today's case. The website scrubbing carried over to the State Department's own site and other government archives.
The only organization to file an amicus brief in support of the State Department is Americans for Peace Now, a left-wing advocacy group. The Zivotofskys, however, have attracted widespread support, including from the Anti-Defamation League, AIPAC, various religious groups of all denominations, members of Congress (at least 28 U.S. senators and 11 members of the House of Representatives), the Zionist Organization of America, and the American Association of Jewish Lawyers and Jurists, among others.
But despite the popularity of the petitioner's position, the government will likely win this case. The Court won't rule that Jerusalem is not in Israel. Rather, it will avoid getting involved in an intra-government squabble between Congress and the White House. And if that happens, then the only person capable of changing the rules to allow Menachem to put Israel on his passport is the president.
Daniel Halper, JINSA Visiting Fellow, is deputy online editor at The Weekly Standard. A version of this article appeared in Tablet Magazine.