Jerusalem Passport Case Could Yet Boomerang On Obama Administration

Supreme Court ‘Kicked Israelis in the Face’
Nitzana Darshan-Leitner, head of lawfare NGO Shurat Hadin, says SCOTUS decision on Jerusalem ‘truly damages every single Israeli.’

By RICK RICHMAN, NY SUN

Those disappointed in the Supreme Court’s decision yesterday in Zivotofsky v. Kerry, which struck down a law allowing Jerusalem-born Americans to have “Israel” listed in their passports as their the place of birth, are missing the long-term significance of the case, which will play out about three months from now.

The United Nations General Assembly is laying plans to opens its next session on September 15, and there have been rumors that France plans to submit to the Security Council a resolution to prescribe a Palestinian state in the disputed territories of Judea and Samaria, with a capital in Jerusalem, with a negotiating deadline of 18 months. The Obama administration is thought to be considering voting for the resolution, or allowing it to pass with a U.S. abstention.

If it takes either course, though, it will be violating multiple representations made multiple times to the Supreme Court in the Zivotofsky litigation. The first sentence of Secretary Kerry’s brief to the Supreme Court stated that “[t]he status of Jerusalem is one of the most sensitive flash points in the Arab-Israeli conflict,” and that “any” U.S. action that signaled it recognized Jerusalem as a city within the sovereignty of either Israel or the Palestinians would “critically compromise” the U.S. ability to further the peace process.

Just putting “Israel” in Zivotofsky’s passport, the administration said, could “cause irreversible damage” to negotiations, by “prejudging the final and permanent status of Jerusalem.” The same representations were made in an earlier brief filed by Secretary Clinton.

Having litigated for years, all the way to the Supreme Court, to prevent the mere mention of “Israel” in Zivotofsky’s passport, on grounds it might signal a U.S. position on the outcome of negotiations over Jerusalem and thereby possibly destroy the peace process, it would now be remarkable – to use the least loaded word – for the administration to turn around and support a United Nations resolution specifying a Palestinian state that includes Jerusalem.

To borrow another sentence from the administration’s Zivotofsky brief, the “consequences would be particularly severe in the extraordinarily sensitive context” of the longstanding U.S. position of strict neutrality, which the administration told the Court “undergird[s] U.S. foreign policy in the region.”

Having made those representations to the Court — which the majority opinion cited in noting how important it was to vest sole recognition authority in the President — the Obama administration cannot honorably turn around and violate that neutrality principle a few months later at the United Nations. A neutrality principle by definition applies equally with respect to both sides in a dispute.

The Zivotofsky case was never going to result in a litigated resolution of the status of Jerusalem. Master Zivotofsky’s counsel assured the Court that, if it ruled in Master Zivotofsky’s favor, the President would still be free to issue a statement that the passport designation did not in any way change the American position regarding Jerusalem, nor represent an expression of Israeli sovereignty.

Master Zivotofsky’s counsel argued that the case involved only the self-identification of a citizen on his own passport, not a case involving the President’s recognition authority. The administration, not Master Zivotofsky, argued strenuously that it was in fact a recognition case and that the critical American policy of neutrality with respect to sovereignty over Jerusalem was in jeopardy. Having prevailed over Congress on that basis, the President is now honor-bound to implement the policy at the United Nations, if and when France seeks to modify it.

In the end, a peaceful resolution of the Israeli-Arab conflict depends upon a solution that both sides accept. It requires negotiations without preconditions, not a prejudgment from an outside source, particularly one that seeks to be an “honest broker” in the negotiations. So it is not simply honor but wise policy that demands that the Obama administration, having protected its neutrality policy from the putative threat of a child’s passport, now protect it as well from the coming French resolution.

Mr. Richman is editor of Jewish Current Issues.