Video: Matt Lee owns new State Department spokesperson John Kirby on Jerusalem
John Kirby just became State Department spokesperson last month and I can already tell you that he's no better than Marie Harf.
Watch him squirm as he tries to figure out US policy on Jerusalem while under questioning from @APDiploWriter Matt Lee about Monday's Supreme Court decision that Congress overstepped its bounds in trying to require the State Department to register Jewish children born in Jerusalem (like four of mine) as having been born in Israel.
Let's go to the videotape.
Keep making them feel uncomfortable Matt! They'll find a policy one of these days.
The court ruled 6-3 that Congress overstepped its bounds when it
approved the law in 2002. It would have forced the State Department to
alter its long-standing policy of not listing Israel as the birthplace
for Jerusalem-born Americans and listing only "Jerusalem."
The policy is part of the government's refusal to recognize any
nation's sovereignty over Jerusalem, until Israelis and Palestinians
resolve its status through negotiations.
Justice Anthony Kennedy said in his majority opinion that the
president has the exclusive power to recognize foreign nations, and that
the power to determine what a passport says is part of this power.
"Recognition is a matter on which the nation must speak with one voice. That voice is the president's," Kennedy wrote.
The ruling ends a 12-year-old lawsuit by a Jerusalem-born American, Menachem Zivotofsky, and his U.S. citizen parents.
Justice Antonin Scalia read a summary of his dissent from the bench,
saying the Constitution "divides responsibility for foreign affairs
between Congress and the president." Chief Justice John Roberts and
Justice Samuel Alito joined the dissent.
Justice Clarence Thomas agreed with the outcome of the case, but on narrower grounds.
If the Republicans win the White House, we will have some hope that this opinion becomes solely academic. But while this ruling was expected, it is certainly disappointing.
The unbridled interference of Israel's Supreme Court in political and military issues of which it understands nothing has led to a situation in which Israel is about to place most of the land designated for the city of Gvaot outside the 'security fence' while still angering the fence's proponents and opponents.
In 2004, the International Court of Justice at the Hague issued a
non-binding advisory opinion, explaining that construction of the [security fence] over the pre-1967 lines was illegal.
Israel designed the
barrier to prevent the type of suicide bombings that killed around 1000
thousand people during the second intifada. It has refused to heed the
ICJ opinion, which it believes is legally flawed and the result of a
biased process.
But the pace of construction has been slow and
according to the United Nations, 12 years after the barrier's inception,
only 62% of its 712 kilometer route has been completed.
Among
the uncompleted sections is the route in the Gush Etzion region, just
outside Jerusalem, including a 45 kilometer stretch that was approved in
2006.
...
Palestinians,
settlers and environmentalists oppose the route and have appealed to
the High Court of Justice. Gush Etzion Regional Council head Davidi Perl
said that the planned route also places land outside the barrier which
is assumed to be part of Israel’s final borders in any permanent status
agreement.
This includes, he said, large portions of new project, Gevaot, where his council hopes to build a new West Bank city.
The
Defense Ministry last month reclassified the property as state land, to
pave the way for future building, but now the government intends to
approve barrier route that excludes the bulk of that project, he said.
...
In hopes
of blocking construction of the barrier near Battir, the Palestine
Liberation Organization sought help from the United Nations Educational,
Scientific and Cultural Organization, whose World Heritage Committee
registered the village's ancient terraces in June to the state of
Palestine. The Palestinians, the Gush Etzion Council and environmental
groups have also appeal to Israel’s High Court of Justice.
On
July 29th the HCJ ordered the government to review the issue by October
2nd, particularly in light of the diplomatic implications of Battir’s
new status as a World Heritage site. It noted a review was also needed
because in the last eight years the route has been altered for
environmental and quality of life reasons.
The status as a 'World Heritage' site - clearly a political move - has absolutely no effect on Israel's security needs, which should be the sole criterion in determining the fence's route.
The defense ministry’s legal expert Ahaz Ben-Ari advised the government that it could reauthorized the route.
“The
High Court of Justice’s orders to reauthorize the security barrier’s
route in the area of the village of Battir in light of UNESCO’s
decision, does not stem from legal issues resulting in the recognition
of the Battir terraces as a World Heritage site, but rather from the
diplomatic questions connected to the topic.”
And therefore the court has no place interfering. In a normal democracy, it's not up to the Supreme Court to determine the handling of diplomatic questions. Israel, however, is not a normal democracy.
“There is no legal
obstacle to authorizing [the barrier’s route], especially given that in
response to legal proceedings before the court the route has been
changed to lessen harm to the environmental and the landscape,” Ben-Ari
wrote. He added that the state has also promised to preserve the quality
of life of the Palestinians living in Battir.
The environmentalists are also whining about the route, but if the IDF was allowed to plan the route properly it probably wouldn't be anywhere near this area, but rather far deeper into the Judean desert.
In an article that is behind the JPost's paywall, Evelyn Gordon examines the Israeli Supreme Court's efforts to legislate a constitution. I got this one by email and will post most of it.
Former Supreme Court President Dorit Beinisch made a truly shocking comment last week. Speaking at the Interdisciplinary Center in Herzliya, she began, reasonably enough, by arguing that Israel needs a complete constitution to protect democracy and human rights. Then came the bombshell: “She said that the goal of completing a constitution could either be undertaken by the court itself through its decisions or by the Knesset through passing additional Basic Laws,” The Jerusalem Post reported.
In short, our former Supreme Court president thinks “democracy” is perfectly compatible with having unelected judges write a constitution and then impose it by fiat. In real democracies, constitutions require ratification by the people or their elected representatives. But Beinisch evidently prefers Soviet-style democracy, in which unelected officials makes the real decisions while the “elected legislature” is merely for show.
Nor is she unusual: Her predecessor, Aharon Barak, imposed Israel’s existing “constitution” by fiat. By asserting that two 1992 Basic Laws approved by a mere quarter of the Knesset (respectively, 23 and 32 out of 120 MKs) constituted a constitution even though most MKs hadn’t intended it as one, he enabled the court to overturn other legislation passed by much larger majorities.
But what made Beinisch’s comment particularly eerie was its juxtaposition with the very different conversation taking place just then in America. Discussing President Barack Obama’s newfound support for gay marriage, several commentators noted that despite comparing it to civil rights and women’s rights, Obama advocated leaving decisions on the issue to the individual states rather than having the courts impose it as a constitutional right. “Different communities are arriving at different conclusions, at different times,” he said. “And I think that’s a healthy process and a healthy debate.”
Yet why, if gay marriage is a right, should it be left to the whim of state legislatures? “What seems to loom here,” responded Anand Giridharadas in The New York Times, “is the specter of Roe v. Wade, the 1973 Supreme Court ruling that made abortion a federal constitutional right — but did so in a manner that interrupted an unresolved national conversation, as many supporters of abortion rights concede today, and thereby divided the country into two irreconcilable camps.”
In short, almost 40 years later, even supporters of Roe v. Wade have finally realized what Beinisch and her fellows still haven’t grasped: that imposing norms on an unwilling public by judicial fiat can do more harm than good.
...
Many Israelis similarly resent Israel’s Supreme Court for repeatedly nullifying their hard-won victories in the democratic arena. The court has asserted the right to overturn government decisions and/or legislation on virtually every important policy issue Israel faces: immigration and citizenship (from defining who is a Jew, and thereby entitled to automatic citizenship, to deciding whether Israel may deny entry to enemy nationals), budgetary priorities (it has, for instance, asserted the right to set minimum welfare payments and add treatments to the national health insurance plan), family matters (from recognizing gay couples to criminalizing spanking), even military tactics during wartime (such as targeted killings of terrorists). In its view, there’s no such thing as an issue that is properly left to the elected branches of government: “Everything is justiciable,” as Barak famously said.
Moreover, the court frequently nixes government policies not because they contradict any actual law, but because the justices deem them “unreasonable” – a decision most democracies leave to the voters – or because they violate a “right” of the court’s own invention.
Ironically, the court itself is the first victim of this overreach: Public confidence in it has been plummeting. The second victim, as Roe v. Wade shows, is social cohesion: Disputes that are resolved by judicial fiat instead of democratic give-and-take generally leave the loser angry and embittered, splitting the country “into two irreconcilable camps.”
The third victim, however, is the very democracy Beinisch claims to want to protect: When people feel they have no real influence over government policy, because most major decisions are ultimately made by a group of unelected justices, they lose faith in the democratic process. Indeed, this is already happening, as both falling voter turnout and polls measuring democratic sentiment show. And while judicial overreach isn’t the only cause of this decline (our flawed electoral system also plays a significant role), it’s a major contributing factor.
As I reported last week, the US Supreme Court has granted certiorari (the right to a hearing) to 9-year old Menachem Binyamin Zivotofsky, who would like his American birth certificate and passport to say that he was born in Jerusalem, Israel.
The facts in the case are well-known and are not - as far as I am aware - in dispute. Menachem was born in Jerusalem in 2002 seventeen days after the US Senate unanimously tacked a provision onto an appropriations bill that required the State Department to register Jerusalem births as "Jerusalem, Israel" if the parents so desired.
But when President George W. Bush signed the bill - passed by a Republican-controlled House and a Democratic-controlled Senate - he issued a signing statement saying that he would not abide by the Jerusalem provision, arguing that it impermissibly infringed upon the President's power to recognize foreign sovereigns, a power that he argued derives from the Constitution's granting the President power to "receive Ambassadors and other public Ministers."
Both the Bush and the Obama administrations have attempted to deny young Master Zivotofsky his day in court, arguing that the case presents a political question with respect to which the US Supreme Court (unlike the Israeli one) is required to stand down.
But what is the issue? Is it Jerusalem? Is it signing statements? Is it the President's constitutional prerogatives? Is it the political question doctrine? Or is it perhaps something else? The New York Sun reports that Zivotofsky's lawyer - Nathan Lewin - won cert (as lawyers call it) by minimizing the issue at hand.
One of the ironies in the case is that the lawyer for Master Zivotofsky, Nathan Lewin, a legendary practitioner at the constitutional bar, won certiorari in the case by arguing, in effect, that it was much less of a big deal than Mrs. Clinton is making it out to be. On its face his petition for a hearing doesn’t ask the Supreme Court to sort out who owns Jerusalem or who gets to decide the question or who runs foreign policy of the United States. Congress, after all, passes laws in respect of all kinds of things that affect foreign policy. What he does suggest is that the Congress has enough power to write the rules for issuing certificates of birth abroad and to require the government to accede to parents’ wishes on the matter.
That may have been Lewin's argument, but it's not how the Supreme Court saw it.
The justices of the Supreme Court, in their order saying they’d take the case, signaled that they see the standoff between the Congress and the presidency as a central issue. The editor of the Sun, writing about the case in the Wall Street Journal, quoted the Supreme Court’s order, as specifically instructing the lawyers to focus on whether the law “impermissibly infringes the President’s power to recognize foreign sovereigns.” The power to which the Court refers stems from language in Article II of the Constitution, which is the article that creates the presidency and states that the president “shall receive Ambassadors and other public Ministers.”
But which foreign sovereign is being recognized (or not) based on whether Menachem Zivotofsky's passport says "Jerusalem" or "Jerusalem, Israel"? Yisrael Medad made a comment at the Sun's website (reproduced here as part of a lengthy post on the case) that sheds some light on that question:
There is a flip side to this coin: at present State Dept. regulations instruct, as a first choice, that a child of an American citzen born outside of the Green Line but within the area currently administered by Israel, - for example, a Jewish woman in Shiloh or Efrat or an Arab woman in Ramallah or Bil'in - shall have his birth place registered as "_____, West Bank" (only if the parents object, then just the city will be noted, like in the case of Jerusalem).
In other words, State Dept. clerks have created a 'state' called the West Bank but refuse to recognize Israel viv a vis Jerusalem even though, it should be recalled, the geographical terms "Judea" and "Samaria" appear in the UN's 181 decision in the section delineating the borders. Why not Shiloh, Samaria or Bethlehem, Judea?
Obviously it is not law involved but diplomacy and political policy and despite my lack of professional constitutional law grounding, I would suggest that law (Congress) aslways takes primacy over policy (State Dept.).
So has the Supreme Court presented the issue as whether it is in the exclusive power of the President to determine what states to recognize, including an Arab 'Palestinian' state on the 'West Bank'? After all, Harry Truman decided by himself - against the advice of the State Department - to recognize Israel.
And on that note, let's turn for a minute to Seth Lipsky's Wall Street Journal article on the Zivotofsky case (for those who don't have a Wall Street Journal subscription, the full article is available here).
Former Israeli Prime Minister Menachem Begin used to warn against deciding the political status of Jerusalem in the U.S. Congress.
I'm kind of surprised at that quote, because for most of the last 63 years (and even before), Israel got a far more sympathetic hearing from Congress than it did from the Executive branch (and particularly from the State Department). In fact, Begin himself had an often tense relationship with Jimmy Carter during their overlapping terms in office.
Can a president, in signing a piece of legislation, announce that he doesn't agree with part of it and doesn't intend to enforce the law?
The answer to that question ought to be no. In the American system, Presidents for years have sought and have failed to receive a 'line item veto' in the government budgetary process. If they can't have such a veto when it comes to spending, why should they have it anyplace else? (Not to mention that the legislation that included the Jerusalem provision was an appropriations bill).
In the fight over whether the Supreme Court would take the case, Mrs. Clinton echoed Mr. Bush's concerns, citing her department's view that "any unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process."
Actually, one could argue that it shows nothing of the sort. All of the hospitals in Jerusalem in which Jewish children are born are located in 'west' Jerusalem with the exception of Hadassah Mount Scopus, which is located in an area that was nevertheless under Israeli control between 1949-67. By refusing to recognize Menachem's birth as being in Jerusalem, Israel, the Obama administration is saying that it doesn't recognize any part of Jerusalem as being part of Israel. Yes, I know, that has officially been the US position since before 1967, but most Americans don't understand that, and do at least - along with their elected representatives - recognize Israeli sovereignty in 'west' Jerusalem.
So far, lower courts have agreed with Mrs. Clinton that this matter is a "political question" and not justiciable. But the young Mr. Zivotofsky's lawyer, Nathan Lewin, was able to convince the Supreme Court to hear the case by arguing, in part, that this matter is no longer a "political question" precisely because Congress has already acted.
Given all the other foreign affairs and political disputes in which Congress does act—from foreign aid to the United Nations to the Senate's ratification of treaties—it's illogical to suggest that the terms for issuing certificates of birth abroad are beyond the reach of the elected legislature.
Actually, there's a tension built into American foreign relations by the contradictory grants of the power of the purse and the power to declare war to Congress, while the President is the Commander in Chief of the army and therefore is the ultimate framer of orders to the American military.
All in all it's a fascinating case, and one I hope that Menachem and his parents - Ari and Naomi - win (yes, we know them). But couldn't you guys at least have an easier to spell last name? I just discovered I've been spelling it wrong for years (Zivotovsky rather than Zivotofsky).
I am an Orthodox Jew - some would even call me 'ultra-Orthodox.' Born in Boston, I was a corporate and securities attorney in New York City for seven years before making aliya to Israel in 1991 (I don't look it but I really am that old :-). I have been happily married to the same woman for thirty-five years, and we have eight children (bli ayin hara) ranging in age from 13 to 33 years and nine grandchildren. Four of our children are married! Before I started blogging I was a heavy contributor on a number of email lists and ran an email list called the Matzav from 2000-2004. You can contact me at: IsraelMatzav at gmail dot com
