Category Archives: Israel

How often does a United States Supreme Court decision affect you personally? The decisions of the Supremes certainly touch our lives, but usually without the immediacy of one case now awaiting decision.

Here in Israel, we have been blessed with the birth of a grandson, and his arrival brings not only great joy but also the confusion that has engendered the case of Zivitofsky v. Kerry. Our grandson was born in Jerusalem, and, under current US consular practice, his place of birth will be recorded on his American passport as “Jerusalem,” and not as is done elsewhere in the world, with the country name rather than the city name. Indeed, if he had been born in Tel Aviv or Ramat Gan, his place of birth would be recorded as “Israel.” Not so in Jerusalem, capital of Israel for, oh, going on 3000 years and the focal point of the impending holiday of Chanuka.

This discrepancy exists because, as is well known, official US policy does not recognize Jerusalem as the capital of Israel, notwithstanding repeated promises and Congressional legislation to move the American embassy to Jerusalem. What is less known, and outrageous, is that official US policy does not even recognize Jerusalem as a city in Israel. That is a remarkable incongruity. Jerusalem is considered to be a disputed city whose ultimate fate is yet to be negotiated, and those born there, apparently, are stateless.

A number of years ago, the Zivitofsky family (Rabbi Dr. Ari Zivitofsky, the father, is a tremendous resource to the Jewish people in the realms of halacha, minhag, science and now law) sued to have their Jerusalem-born son’s place of birth on his US passport be recorded as “Israel.” Their appeal was first denied by the Consulate, and a sympathetic Congress then passed a law mandating that any American child who is born in Jerusalem shall have his passport state that he was born in Israel. (That happened in 2002; the child in question is already Bar Mitzvah age, so long has the matter been meandering through the legal and political system.)  The bill was signed into law by President Bush, who nonetheless attached a signing statement arguing that this Congressional act was an unconstitutional violation of the president’s right to conduct foreign policy. The State Department, on those grounds, refused to implement the law. The Zivitofsky’s sued in US federal court, and the denial of their right to sue was upheld until the Supreme Court in 2011 ordered that the matter be decided on the merits.

When it was finally heard, their claim was systematically rejected on the grounds that this was a political/diplomatic question, and therefore solely the purview of the President. The appeal of that ruling is now pending before the Supremes.

How will the case be decided? The lamentable rule of thumb has usually been that “the Jews lose.” Most cases in memory of parochial Jewish interest have been decided against what could be called “the Jewish side.” It certainly does not help that the three Jewish justices who currently sit on the Court (Ginsburg, Breyer and Kagan) were notably hostile to the appellant’s case. When one adds to that number the clear opposition to the law of Justice Sotomayor, it means that the Zivitofsky’s have to run the table – gain the support of all five other justices – in order to prevail.

It is certainly possible, although, as is frequently the case, Justice Kennedy might again prove to be the swing vote. Three other justices (Roberts, Scalia, and Alito) appeared to be favorably disposed to the law and appellant’s arguments (with Justice Thomas reticent as always). How is this for irony? If the Zivotovsky’s prevail, it will be because five Catholic jurists outvoted three Jews and upheld the Jewish connection to Jerusalem!

At first glance, the case appears to be unwinnable. The recognition of foreign governments and their territories is a presidential prerogative. The president is the official who is primarily responsible for the conduct of foreign policy, with Congress playing a subordinate role. Here, too, the government argued that registering the birth of an American citizen in Jerusalem as “Israel” would negate one of the norms of US foreign policy since 1948: that the status of Jerusalem is to be determined through negotiations between the parties and not unilaterally by either side. Recording in a passport that, in effect, Jerusalem is Israel (even so-called West Jerusalem), would undermine that, and presumably ignite the tinderbox that is the Middle East.

What are the counter-arguments? (The oral argument before the Court can be read and even heard in full; it makes for fascinating reading and listening.) Issues were raised by some of the justices in support of the law that even appellant’s attorney did not mention in oral argument. For example, the passport would simply record “Israel” (not Jerusalem, Israel), same as for a child born in Tel Aviv. There is nothing on the face of the passport that makes any kind of political statement; a reader would not even know that the child was born in Jerusalem.

Justice Kennedy suggested attaching a disclaimer to the passport to avert the political problem – to the effect that nothing recorded on the passport should be perceived as tantamount to recognition by the United States of Jerusalem as the capital of Israel. Such is done with Taiwan, which is not recognized as a country by the US but whose US citizens born there are listed as having been born in Taiwan, not, if appropriate, Taipei the capital.

Appellant argued in the alternative – that the information on an individual’s passport is a personal choice and therefore does not at all imply any formal diplomatic recognition, and that even if it does imply recognition, Congress has the right to override the president’s view, as was done more than a century ago when the Congress recognized Cuba over President McKinley’s opposition. (He later came around.)

Justice Scalia, logical as always, questioned whether recording a geographical fact in an official document amounted to formal diplomatic recognition, and asserted that Congress had the right to pass a law even if it angered the Palestinians or anyone else.

Indeed, Justice Alito underscored the farcical nature of this diplomatic dance by asking, rhetorically, does the United States recognize a birth certificate issued by Israel for those born in Jerusalem? Of course. Does the United States maintain that Israel is not sovereign in Jerusalem, such that Israel would have no right to prosecute a crime committed by an American in Jerusalem? Of course not. Additionally, diplomats and presidents who wish to visit with Israeli leaders and speak before its Parliament all go to Israel’s capital.

It emerges then that obviously some – in fact, many – attributes of sovereignty are exercised by Israel in Jerusalem and accepted by the United States – despite the State Department’s refusal to recognize the births of Americans there as occurring in Israel. As such, it falls under the purview of a congressional statute that should be enforced, regardless of the diplomatic consequences.

Appellant further claimed, slightly less persuasively, that individuals have the right to self-identify on their passports. The point was to negate the argument that recording “Israel” was the equivalent of recognition, but it leaves open the possibility of “Palestine” someday appearing on American passports as well.

Clearly, if the Court wished to do so, there are ample legal grounds to uphold the statute. There are also compelling logical grounds: for how long will the United States tap dance around the reality that Jerusalem is a city in Israel, much less its capital? Even farce should have its limits. We are no longer in1948. We are 47 years past the reunification of Jerusalem as one city under the sovereignty of Israel. If Barack Obama or John Kerry faced a Final Jeopardy question with their fortunes at stake that asked for the capital of Israel, they would both know what to answer. So,  why not stop the charade already?

In a week or so, hundreds of Jewish bigwigs will descend on the White House for the annual Chanukah party. Rather than making small talk with the President, half of the VIPs should ask him to free the ailing Jonathan Pollard and the other half should ask him to recognize Jerusalem as a city in the State of Israel. That would be an effective and intelligent use of their face time, perhaps accomplish some good, and vitiate the need for the Court to decide.

It would also justify the party itself, for Chanuka without Jerusalem is lame – just as Israel without Jerusalem is missing its soul. Let us hope that the people who attend and the Jewish organizations they represent can save one soul and redeem one holy city.

(NOTE: I again announce the publication in Israel of my new book, entitled “Tzadka Mimeni: The Jewish Ethic of Personal Responsibility.” It is written in English, available now in Israel and should arrive in the United States in a little over a month. Then, it will be available at fine Jewish bookstores. Even now, it can be pre-ordered at Amazon.com or Bn.com. Enjoy!)

My new book (have you heard??) is entitled “Tzadka Mimeni” to recall a specific incident in the Bible that had enormous and historic ramifications. It was the phrase Yehuda (son of Yaakov) used to admit his complicity in the affair with Tamar, who refused to publicly identify him as the father of her child but subtly indicated so to Yehuda. Rather than deny, obfuscate, change the topic or blame someone else, Yehuda admitted his role: “Tzadka Mimeni.” She is more righteous than I am. She is right. I am wrong. It is my fault.

That confession not only saved Tamar’s life and was an act of moral courage; it also qualified Yehuda, in the opinion of our Sages, to become the progenitor of the royal house of Israel. It was the response of a real leader, who knows how to take responsibility for misdeeds and failures and not pass the buck to others.

Those days are long gone, at least here in the United States.

Barack Obama’s inability to take responsibility for anything has become a running joke, albeit one without humor and incapable of inducing laughter. These cannot even be considered gaffes, as they are second (or first?) nature to him. The most recent example is almost run-of-the-mill. Asked whether he was surprised by the rise of ISIL, Obama shifted responsibility for being surprised to the equally hapless James Clapper, even if the intelligence services had, indeed, warned of ISIL’s rise more than a half-year ago. “It wasn’t me! It was him! He didn’t tell me!”

It is actually worse than that. I receive a daily briefing on the military situation in Iraq and environs (you can too!) from the Institute for the Study of War, complete with maps and analysis. Note this:

       “ISW’s Jessica Lewis assessed in July 2013 that the group’s leader Abu Bakr al Baghdadi literally aimed to declare an Islamic State: “When al Qaeda in Iraq last enjoyed this operational advantage, it chose to announce the birth of the Islamic State of Iraq and to appoint emirs and Shura councils in every province. This historical parallel places Abu Bakr al-Baghdadi’s recent announcements of his envisioned Islamic State of Iraq and the Levant in the literal context of a deliberate campaign to establish governance over areas in Iraq and Syria.”

Check the date: July 2013. That was 15 months ago, at least six months before ISIL became better known in America, and 12 months before they started beheading American journalists.

In August 2013 (that’s over a year ago), ISW reported on ISIL’s territorial gains in Iraq and in Syria, a period that by pure chance coincided with the President’s annual Martha’s Vineyard location. What does ISW know that Obama doesn’t? Perhaps their analysts pay more attention to the intelligence coming their way than the President does to his. Perhaps the President should subscribe to ISW’s daily reports, although he would still have to read them.

But that is only the latest example. The hallmark of this administration has been a headlong flight from personal responsibility – on Putin’s military advances, the botched rollout of Obamacare, the corruption and dirty-dealing at the IRS, the Benghazi attack, the failures at the Veterans Administration, etc., and etc. to the etc. Events seem to swirl around this President and he is often, apparently, the last to know what is happening on his watch and the least able to influence the course of events. He will look dutifully somber, and promise justice, getting to the bottom, etc., but without much passion, engagement, or real acceptance of responsibility. That the White House admitted this week that they learned at the same time the press did that an armed felon rode in an elevator with the President and an unsuspecting Secret Service along for the ride is par for the course (pardon the golf reference). All agencies take their lead from the chief; it stands to reason that the Secret Service is as detached as the man they are sworn to protect.

Indeed, judging by customary reactions from this White House, George W. Bush is more responsible for the events of the last six years than Barack Obama.

This diffidence has had the effect of reducing Obama and the United States on the world scene. Part of this is intentional: Obama believes the dispatch of the American military across the world to be an “evil,” which he will not do absent an attack on the homeland, and perhaps not even then. He does not perceive the US military as a positive, virtuous force (witness the “coffee salute”) but rather as a symptom of the “bad America” that he was elected to transform. And part of this is simply the natural effect of the way Obama is perceived by other world leaders, especially American allies who are counting the days and holding their collective breaths until January 20, 2017.

This week, and once again, Obama was rebuked in private by PM Netanyahu, admonished to “study the facts and details” before reflexively criticizing Israel’s municipal building plans. Foreign leaders have the advantage of piercing the cordon sanitaire that Valerie Jarrett has erected around Obama to shield him from criticism. In private, they tell him exactly how they feel, even if in public, they pay him deference, out of respect to his office and especially to the historic role of the US in world affairs which will outlive even Obama’s efforts to strangle it. Obama, after six years, is unaccustomed to hearing criticism or even dissenting voices and is visibly uncomfortable with it. But it exists.

Netanyahu, who is a serious man and proved it again this week (he also remains Israel’s most effective spokesman when he is overseas), knows that Obama will do nothing about Iran’s nuclear program. The American president lacks both the will and a plan, and, like with ISIS, will offer desultory demonstrations of resolve and might, however ineffectual they are. (In the case of ISIS, an air show that will change nothing on the ground, and in the case of Iran, an empty agreement that will also change nothing.) Personally, I found Obama’s repeated references to the PM as “Bibi” to be disparaging attempts to belittle him; Netanyahu, presumably, had the grace not to refer to Obama as “Barry.” (But did Israel’s PM have to traipse from one treif restaurant to the next in NYC, of all places, and during the Aseret Yemei Teshuva, of all times? There was a time when Israeli leaders had a little more Jewish pride, or at least, self-awareness.)

Incidentally, as noted here not long ago, Obama takes liberties with his conduct of “war” that he doesn’t allow Israel – e.g., bombing from the air (which he insisted that Israel not do in Gaza; for the most part, they ignored him). It is also fascinating how there seem to be no casualties from any US bombing run – neither terrorist nor civilian. Those really are smart bombs.

Leadership requires, first and foremost, the capacity to accept responsibility in a serious and sincere way. So does atonement. At the very heart of Yom Kippur is the recognition, stated again and again, that “I am responsible” for my sins. No one else is responsible. I cannot pound the chest of the person standing next to me, as tempting as that sounds. I cannot shift blame to others for my failures. I cannot hang my mistakes on the fellow who preceded me in my seat in shul.

If anything, the contrast between the modern world and G-d’s expectations for us is so stunning that it should force us to take a deeper, more introspective look at our deeds and misdeeds, our ambitions and objectives in life. Fortunately, Yom Kippur provides us the opportunity to do that.

Politics aside (this too shall pass), our inner world is the real world in which our moral perfection is sought and measured, and where it has true substance and makes an eternal difference. May we take such messages to heart, merit      G-d’s grace and forgiveness, and be inscribed for a year of life, good health, prosperity and peace.