Zivotofsky decision recognizes Congress’ right to determine American foreign policy

The U.S. Supreme Court has ruled in Zivotofsky v. Kerry that Obama can decree that Jerusalem isn’t in Israel. But while friends of Israel lost this battle, they may have won, if not the war, at least a larger battle.

Jewish organizations have been expressing their disappointment with the decision. And they’re right: the refusal to recognize Israeli sovereignty over Jerusalem is a refusal to face facts. In addition, pretending that even western Jerusalem is not Israeli, even though Israel has controlled it since 1948, encourages the Palestinian fantasy that Israel is temporary.

Thus, the negative political significance of the judicial decision is clear. But most commentators have missed its larger constitutional significance. The decision did not say that the president has sole control over American foreign policy, as some commentators have stated. Quite the opposite, in fact.

The Court’s decision is a narrow one: A particular snippet of the Constitution, Article II’s “receive Ambassadors” clause, gives an exclusive recognition power to the executive branch. Thus, the president decides whether an entity has the attributes of statehood; which group or regime claiming to be the government of a country is actually its government; and what territory that government controls—for instance, whether Israel is the sovereign in Jerusalem.

That’s a significant power. But it’s just a small slice of foreign policy. And the Court said Congress has an important role to play in foreign affairs.

Many people (including many presidents) have believed that the president is the sole maker and authority in foreign affairs. The main justification for this view is that the United States must “speak with one voice” in dealing with foreign powers. And there are a few Supreme Court cases that can be read to support this view.

But in Zivotofsky v. Kerry the Court repudiated this commonly-held notion that the president is the sole architect of American foreign policy. On the contrary, the Court emphasized that constitutionally, Congress makes the laws—even in foreign policy; and the president must faithfully execute the laws—even in foreign policy.

As Justice Anthony Kennedy wrote for the Court: “Although the President alone effects the formal act of recognition, Congress’ powers, and its central role in making laws, give it substantial authority regarding many of the policy determinations that precede and follow the act of recognition itself. . . . All this, of course, underscores that Congress has an important role in other aspects of foreign policy, and the President may be bound by any number of laws Congress enacts.”

So, for example, Congress could designate the Palestinian Authority a terrorist organization; or declare that America does not recognize a Palestinian “right of return” to Israel, but only to a Palestinian state.

In the past, Congress may have been content to leave such matters to the president, when it was plausible to suppose foreign policy was his personal, particular preserve. But that is plausible no more. Whether Congress will stretch its limbs and exercise all the foreign policy power it has is an open question. (And whether Congress will always be the more pro-Israel branch of government is doubtful.) But now it has the Supreme Court’s permission, so to speak, to do so.

So President Obama is enjoying a political victory. But it is a limited one, and may be a pyrrhic one, as the Zivotofsky opinion has told him and all future presidents they can’t put a sign on the White House fence that says: “Foreign policy made here—Congress keep out.”

Attorney Paul Kujawsky wrote several amicus briefs in the Zivotofsky litigation.

Limited ruling on Jerusalem passports met with relief from pro-Israel community

Justice Anthony Kennedy, writing for the majority in the Supreme Court decision that will keep “Israel” off the passports of Jerusalem-born Americans, begins by calling Jerusalem a “delicate subject.”

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 U.S. 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. “A formulation broader than the rule that the president alone determines what nations to formally recognize as legitimate — and that he consequently controls his statements on matters of recognition — presents different issues and is unnecessary to the resolution of this case,” Kennedy wrote.

In its statement responding to the ruling, The American Israel Public Affairs Committee noted that Congress, where the lobby is most influential, retained its foreign policy clout.

“Clearly, we are disappointed by the ruling,” AIPAC’s spokesman, Marshall Wittmann, said in an email. “However, the court opinion, viewed in its totality, clearly recognizes the important role that Congress plays in U.S. foreign policy — a role that has been critical in strengthening the U.S.-Israel relationship.”

In addition to Kennedy, a conservative who sometimes swings liberal, the majority included the bench’s four liberals, Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor, as well as Clarence Thomas, a conservative. Breyer, Kagan and Ginsburg are the court’s three Jewish justices. The dissenters were all conservative: Chief Justice John Roberts, Samuel Alito and Antonin Scalia.

The constitution “does not give the president exclusive power to determine which claims to statehood and territory ‘are legitimate in the eyes of the United States’,” Scalia wrote in the dissent. “Congress may express its own views about these matters by declaring war, restricting trade, denying foreign aid, and much else besides.”

The decision was a defeat for much of the pro-Israel community on an issue close to its heart – the Israeli and Jewish claim to Jerusalem.

The Conference of Presidents of Major American Jewish Organizations said it was “deeply concerned” by the decision.

“We hope that a constitutionally acceptable path can be found to assure that Americans born in Jerusalem will be accorded their full rights, including the designation of their country of birth,” the Jewish community’s foreign policy umbrella said in a statement.

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.”

It appeared during oral arguments last November that the justices were considering whether to settle a constitutional argument on who controls foreign policy that has dogged relations between presidents and legislators going back to the time of George Washington.

“What you’re saying is that Congress can’t compel speech by the president with respect to foreign relations,” Sotomayor said to Donald Verrilli, the U.S. solicitor general who was arguing on behalf of the policy.

A wider decision limiting congressional influence might have had an immediate impact, AJC’s Stern said, on efforts in Congress to assert a role in determining whether the United States agrees to an emerging nuclear deal with Iran. Pro-Israel groups back an assertive role for Congress in overseeing any deal.

“This was a defeat, but a limited defeat,” Stern said. The decision “doesn’t determine the result regarding Congress’ powers regarding Iran.”

In Jerusalem passport case, justices consider congressional role in foreign policy

A lawyer for a boy born in Jerusalem whose parents want Israel listed as the birthplace on his U.S. passport tried mightily this week to make a Supreme Court hearing mainly about their wish, but the justices kept upping the ante.

That might mean bad news not just for 12-year-old Menachem Zivotofsky and his folks. It could also present a problem for the prospects of U.S. recognition of Jerusalem as Israel’s capital should the court defer to the Obama administration’s argument that a 2002 law allowing the Israel listing infringes on the president’s prerogative to set foreign policy.

Alyza Lewin, the lawyer who represented Zivotofsky in oral arguments at the court Monday, acknowledged that the tenor of questioning indicated support among the justices for the idea that the case hinges on the separation of powers between the executive and legislative branches.

But in gamely parrying some tough questions in her first appearance before the nation’s highest court, Lewin sought to downplay the significance of recognizing Zivotofsky’s birthplace as Israel, saying it was an issue of personal choice and not an attempt to interfere with the president’s right to recognize foreign governments.

“We gave the court alternative arguments, that what you put on a passport does not amount to recognition,” Lewin told JTA.

Monday marks the second time that the Supreme Court has heard arguments on the constitutionality of the 2002 law, which allows U.S. citizens born in Jerusalem to have Israel listed as their birthplace on their passports.

The measure was enacted by President George W. Bush, but both he and Obama have declined to enforce it. The Zivotofskys filed suit after the State Department refused their request to list Menachem’s birthplace as Israel.

In 2009, an appeals court ruled that the passport question was a political issue beyond the scope of the the judiciary to decide. Three years later, the Supreme Court overruled that finding and ordered the lower court to rehear the case. Last year, the appeals court ruled that the executive branch prevailed on matters of foreign policy, prompting Zivotofsky to appeal again.

The justices seemed skeptical of Lewin’s claim that the Zivotofskys’ bid did not challenge the presidential recognition prerogative.

“What is the effect of this statute other than something that goes to recognition?” Justice Elena Kagan asked.

“This statute is a statute that was created to give individuals the right to self-identify as they choose that they were born in Israel,” Lewin replied.

Kagan said that if that were true, “this is a very selective vanity plate law,” noting that Americans born in Northern Ireland could not identify as being born in Ireland. “And for that matter, Kagan said, “if you are an American born in Jerusalem today, you can’t get the right to say Palestine.”

Anthony Kennedy, often a swing justice on the nine-member court who more often than not sides with the conservative wing, also seemed skeptical of Lewin’s claim.

“Do you want us to say in our opinion that this is not a political declaration?” he asked.

Lewin answered in the affirmative.

“Well then,” Kennedy said. “I’m not sure why that Congress passed it then.”

Like Bush before him, Obama maintains that changing the wording on passports would damage the American role as a peace broker in the Middle East by favoring an Israeli claim to Jerusalem. Since Israel declared independence in 1948, the United States has maintained that no country has sovereignty over Jerusalem and that the city’s status must be determined by negotiations.

A win for the Obama administration would inhibit Congress’ ability to affect foreign policy, said Marc Stern, the general counsel for the American Jewish Committee, which filed an amicus brief on behalf of Zivotofsky. Such an outcome could have an immediate impact by, for example, limiting congressional ability to restrict the dimensions of a nuclear deal with Iran, Stern said.

“It won’t be just a decision on presidential power around the world, it will also be understood as undercutting Israeli claims to Jerusalem,” Stern told JTA. “In the real world it will have impact and we’ll have to figure out what to say at that point. What does that mean for what the administration says about a final settlement, and is west Jerusalem up for grabs?”

Lewin said she was not concerned that a decision, even one that goes against her client, would have such broad ramifications. The current court has been known for narrowly casting its decisions and avoiding far-reaching constitutional conclusions.

“I don’t see this court writing an opinion giving the executive branch such broad power in foreign policy that it cuts out Congress from that role,” said Lewin, the daughter of seasoned Supreme Court lawyer Nat Lewin.

Lewin did acknowledge, however, that the ruling could have far-reaching import for Jews and their attachment to Jerusalem.

“Getting this practice changed is very important psychologically, regardless of separation of powers,” she said. “And this case has raised awareness. Before this, many people were unaware that the formal position of the United States is not recognizing Israel’s capital as Jerusalem.”

Nathan Diament, the Washington director of the Orthodox Union, which filed an amicus brief on behalf of Zivotofsky, said that while Lewin was casting her case as the choice of an individual, it had broader meaning.

“There are many American Jews and other Americans who think it’s absurd that the United States and other world governments do not extend to Israel the courtesy they extend to other countries by recognizing where its government sits as its capital and has not located its embassy there,” he said.

Country of birth

Iranians in Canada caught using fake Israeli passports

Seven Iranians were caught using fake Israeli passports at Vancouver International Airport.

The Iranians, whose identity is unknown, were posing as the Solomons family from the central Israeli city of Rehovot, according to reports. They may have been trying to take advantage of Israelis’ ability to travel to Canada without a visa. Iranians need a visa to enter Canada.

The passports listed the Iranians’ names and ages as Mona, 48; Tomer, 40; Nadine, 15; Narin, 11; Binyamin, 9; Marin, 6; and Nermin, 5. The passports, however, contained several Hebrew errors and mismatched translations, enabling authorities to recognize them as forgeries. The passports were sent to Israel’s  Israeli Population and Immigration Authority.

Several Iranians in recent years have tried to enter various countries with fake Israeli passports.

Appeals court hears Jerusalem passport case

A U.S. appeals court panel heard arguments on whether Americans born in Jerusalem can list Israel as their place of birth on passports and birth certificates.

Attorney Nathan Lewin, representing a couple that had moved to Israel in 2000 from the United States and had a child born in a western Jerusalem hospital, argued before the U.S. Court of Appeals for the District of Columbia on Tuesday that listing one’s place of birth is simply a matter of self-identification — the same as listing height, or eye or hair color — and should carry no further weight.

Those born in Jerusalem now have the city listed rather than the country like other U.S. passports.

U.S. Department of Justice attorney Dana Kaersvang told the three-judge panel, however, that all information on a passport must be consistent with U.S. policy, and that because the State Department has refused since 1967 to recognize Jerusalem as being in Israel, one born in the city cannot list Israel as the place of birth.

Lewin called the State Department’s ruling “clearly discriminating” in that it allows one born in Tel Aviv to list Israel as the place of birth. Arabs living in Israel can request to have West Bank or Gaza listed on their passports.

He also said, “You can say Palestine, a country that doesn’t even exist, but God forbid, don’t put Israel if you were born in Jerusalem.”

Kaersvang explained that the government allows anyone to list a city or town as a place of birth. However, she said, it is up to the U.S. government to decide what is and what is not a sovereign state.

Lewin told the judges that a ruling to allow Israel to be listed on a passport by one born in Jerusalem “could not possibly affect foreign policy.” 

“It does not say Jerusalem is in Israel,” he said. “It does not say Jerusalem comma Israel.”

But Judge David Tatel said such a listing “can have recognition consequences.”

A decision on Tuesday's hearing is not expected for several months.

The U.S. Supreme Court returned the case to the appeals court one year ago, saying the appeals court must rule on the constitutionality of a law enacted by Congress in 2002 that said the State Department “shall” list Israel on a passport if it is requested.

The case began eight years ago when Ari and Naomi Siegman Zivotofsky went to court to be able to list Israel on their baby son's passport. The couple had moved from Silver Spring, Md., to Israel in 2000.

Spy suicide scandal focuses attention on Israel’s foreign Jews

The jailhouse suicide of an Australian immigrant who may have betrayed Israel's Mossad has focused attention on the agency's recruitment of foreign-born Jews who could spy under cover of their native passports.

After a three-year blackout was broken by an Australian TV expose, Israel on Wednesday acknowledged that a dual national had committed suicide in prison where he had been kept isolated in the name of state security.

Authorities made no effort to deny reports the man was 34-year-old Ben Zygier, a Melbourne Jew who moved to Israel, became a citizen, joined its military and Mossad, only to be arrested in early 2010 on suspicion of betraying secrets after Canberra began investigating trips he took to Middle East trouble-spots.

Such travel would be impossible for an Israeli but not for an Australian, especially if – according to one media account – Zygier used a passport reissued under a new, Anglicised name.

Israel has made little secret of seeing its influxes of foreign Jews, often from Muslim countries, as intelligence assets given their language skills and cultural savvy. Many immigrants recall being tapped by Mossad recruiters or asked to loan out their original passports, presumably a cover for spies.

But Israeli officials insist that Jews abroad are never used by Mossad against the interests of their countries – a lesson from the enlistment in the 1980s of U.S. Navy analyst Jonathan Pollard, whose discovery provoked lasting outrage in Washington.

While some intelligence veterans say employing foreign-born Jews is consistent with the universally elastic ethics of espionage, it has dangers. Vetting foreign volunteers is difficult, opening Israel up to security leaks less likely with homegrown spies. Some experts say Israel also needs to be wary of miring allies in its shadow wars and stirring suspicions about the allegiances of Jews abroad.


Warren Reed, a retired officer with Australia's overseas intelligence service ASIS, said the Zygier affair could endanger compatriots who might now be mistaken for Mossad spies while travelling in areas hostile to Israelis.

“This poses a threat to a lot of people, especially journalists who move around frequently,” Reed told Reuters.

While all intelligence agencies work with assumed or filched identities, Reed argued, Mossad creates a bigger probability of reprisals by “by being more severe in its actions, given Israel's security predicament”.

These actions are reputed to include assassinations, such as of a Palestinian weapons procurer in Dubai in 2010, in which the suspected Israeli hit-team used forged Australian and European passports.

The Kuwaiti newspaper Al Jarida quoted unidentified Western sources on Thursday as saying Zygier took part in the Dubai operation and offered information on the killing of Mahmoud al-Mahbouh in return for the emirate's protection.

In another twist, Australia's Fairfax Media said Australian security officials suspected Zygier may have been about to disclose Israeli intelligence operations, including the use of fraudulent Australian passports, either to the Canberra government or to the media before his arrest.


Israel has not confirmed publicly that Zygier was a Mossad operative. But Avigdor Feldman, a criminal attorney who met Zygier in his isolated jail cell a day or two before his death, appeared to let slip that he was indeed a spy.

“The Mossad liaison I was in touch with informed me that, unfortunately, my client was no longer alive,” Feldman told Israel's Kol Barama radio station.

Nick Pratt, a retired U.S. Marines colonel and CIA officer now with the George C. Marshall European Center for Security Studies, took a forgiving view of Mossad passport tactics.

“Israel is a unique country. They live in a bad neighbourhood and they will do anything they can to preserve and protect that country, and quite frankly I have absolutely no problem with that,” he said.

Citing his own experience of foreign nationals being brought in as CIA officers and then deployed to their areas of origin, Pratt said the priority was to ensure that their loyalty was exclusively to the recruiting country.

“Intelligence agencies break the law – but other people's laws,” he said.

Both Reed and Pratt said disclosures of Jewish diaspora involvement in Israeli espionage could stoke anti-Semitism and allegations of dual loyalty – an opinion shared by Gad Shimron, a former Mossad officer who writes on intelligence issues.

“This is a problem that has always been there, and will remain,” Shimron said. “I don't know what to say, other than that the rule is: Never turn a Jew against his host country.”

While Zygier's family declined all public comment on his case, friends of the dead man recalled his Zionist upbringing and pride in Israel, where he was married and had children.

The idea that someone like Zygier had violated Mossad's code of silence, perhaps even imperilling lives, provoked soul-searching in Israel. “Did the Mossad operative commit treason?” asked the biggest-selling daily Yedioth Ahronoth on its front page.

Shimron said this was a possibility, given Israel's past cases of double-agents and moles, among them Jewish immigrants.

“There's always the chance of bad apples in a batch of recruits. The trick is to weed them out in good time,” he said.

Reed suggested Mossad was likelier to miss warning signs in candidates from abroad, where Israel would find it harder to carry out comprehensive background checks and psychological screening, especially if there were a rush to find recruits to fend off proliferating Middle East menaces.

“If they don't have the time and inclination to carefully build up a picture of the person, including the first 20 years of his or her life, they never really find out what's in their heart,” Reed said.

“I would imagine that this paradox is a real problem for Israeli intelligence, and possibly people there are saying now, 'I warned you!'”

Writing by Dan Williams, Editing by Jeffrey Heller and Peter Graff

Members of Congress file brief to support Jerusalem passport case

A bipartisan slate of 58 members of Congress signed a friend of the court brief in a case involving a 9-year-old boy who was born in Jerusalem but was denied a request to have Israel listed on his passport as his place of birth.

Menachem Zivotofsky was born in western Jerusalem. Neither President Obama nor George W. Bush has allowed Israel to be listed as the child’s place of birth despite a 2002 federal statute that allows Americans born in Jerusalem to have Israel listed as their birthplace. Instead, the youngster’s passport lists Jerusalem as his birthplace.

Both his parents are United States citizens.

U.S. Rep. Howard L. Berman (Calif.), the top Democrat on the U.S. House of Representatives Foreign Affairs Committee, and Rep. Ileana Ros-Lehtinen (R-Fla.), the committee chairwoman, spearheaded the amicus brief that will be submitted to the U.S. Court of Appeals for the District of Columbia Circuit. The case is expected to be argued in November or December of this year.

The youngster was born shortly after legislation allowing the State Department to use Israel as the place of birth for those born in Jerusalem. Bush and Obama have both claimed that the law infringes upon a president’s authority to make foreign policy.

The case is going ahead after the Supreme Court in an 8-1 decision in March overruled lower court decisions that had contended that the judicial branch does not have authority over this area since it is not the courts’ place to determine foreign policy.

“This is a critical case, one that I am proud to be actively involved in for the sake of the Zivotofsky family and all American families with children born in Jerusalem, the capital of Israel,” Berman (D-Calif.) said Tuesday.

“Americans citizens born in Jerusalem should have the same right that citizens born anywhere else can enjoy – the right to have their birthplace accurately reflected on their passport,” he said.

Similar amicus briefs have been submitted by such groups as the Anti-Defamation League, the Zionist Organization of America and the American Association of Jewish Lawyers.

Suspected suicide bomber had fake U.S. I.D.; Surveillance camera captures image

A suicide bomber carried out an attack that killed seven people in a bus transporting Israeli tourists in Bulgaria, the interior minister said on Thursday, and Israel said Iranian-backed Hezbollah militants were to blame.

Iran denied it was behind Wednesday’s attack at Burgas airport, a popular gateway for tourists visiting the Black Sea coast.

Video surveillance footage showed the bomber was similar in appearance to tourists arriving at the airport, Interior Minister Tsvetan Tsvetanov said.

The bomber had been circling around a group of buses, which were about to take Israeli tourists to a resort near Burgas, for about an hour before the explosion, the footage showed.

“We have established there was a person who was a suicide bomber in this attack. This person had a fake driving license from the United States, from the state of Michigan,” Tsvetanov told reporters at the airport.

“He looked like anyone else – a normal person with Bermuda shorts and a backpack,” he said.

The bomber was said to be 36 years old and had been in the country for between four and seven days before the attack.

Special forces had managed to obtain DNA samples from the fingers of the bomber and were now checking databases in an attempt to identify him, Tsvetanov said.

The foreign ministry said seven people were killed in the attack, including the Bulgarian bus driver and the bomber. The Israeli foreign ministry confirmed that five Israelis were killed.

The tourists had arrived in Bulgaria on a charter flight from Israel and were on the bus in the airport car park when the blast tore through the vehicle. Body parts were strewn across the ground, mangled metal hung from the double-decker bus’s ripped roof and black smoke billowed over the airport.


On Thursday, the airport in Burgas – a city of 200,000 people at the center of a string of seaside resorts – remained closed and police prevented people from approaching.

Beyond the cordons, about 100 holidaymakers waited for their flights but had been told they would be there until midnight. Officials were setting up portable toilets and tents for stranded travelers and Bulgaria’s parliament opened with a one minute silence in memory of the bombing victims.

“It felt like an earthquake and then I saw flying pieces of meat,” said Georgi Stoev, an airport official. “It was horrible, just like in a horror movie.”

“Yesterday’s attack in Bulgaria was perpetrated by Hezbollah, Iran’s leading terrorist proxy,” Israeli Prime Minister Benjamin Netanyahu said. “We will continue to fight against Iranian terror. It will not defeat us. We will act against it with great force.”

Israel however indicated it would not hasten into any open conflict with Iran or Hezbollah.

Defence Minister Ehud Barak said Israel would “do everything possible in order to find those responsible, and those who dispatched them, and punish them” – language that appeared to suggest covert action against individuals.

Israeli government spokesman Mark Regev linked the arrest of a foreigner in Cyprus this month on suspicion of plotting an attack on Israeli tourists there with the Bulgaria bombing.

“The suspect who was arrested in Cyprus, in his interrogation, revealed an operational plan that is almost identical to what happened in Bulgaria. He is from Hezbollah … this is a further indication of Hezbollah and Iran’s direct responsibility,” he told Reuters.


Iran’s foreign ministry spokesman dismissed Israel’s “baseless accusations” that Tehran was involved in the bombing.

The blast occurred on the 18th anniversary of a bomb attack on Argentina’s main Jewish organization that killed 85 people. Argentina blamed Iran, which denied responsibility.

Medical officials said two badly injured Israeli tourists were taken to hospitals in Bulgaria’s capital Sofia. One woman was in intensive care with head and chest injuries and a man was in a critical state with burns covering 55 percent of his body.

About 70 Israeli tourists, including those lightly injured by the blast, left Burgas on a Bulgarian government airplane to Israel, the interior ministry said.

The European Commission and NATO condemned the attack, joining criticism from the United States, Britain, France and Germany, and the mayor of Burgas announced a day of mourning.

Israeli officials had previously said that Bulgaria, a popular destination for Israeli tourists, was vulnerable to attack by Islamist militants, who could infiltrate via Turkey.

Israeli diplomats have been targeted in several countries in recent months by bombers who Israel said struck on behalf of Iran.

Some analysts believe Iran is trying to avenge the assassinations of several scientists from its nuclear program, which Israel and Western powers fear is aimed at developing a nuclear bomb.

Iran insists its uranium enrichment work is strictly for peaceful ends. Both Israel and the United States have not ruled out military action against Iranian nuclear facilities.

Additional reporting by Tsvetelia Tsolova in Sofia, Maayan Lubell in Jerusalem and Madeline Chambers in Berlin; Writing by Sam Cage; Editing by Mark Heinrich and Giles Elgood

U.S. won’t budge on Jerusalem, but attorney calls passport ruling ‘full victory’

Nathan Lewin didn’t ask the Supreme Court to come out and say directly that Jerusalem is in Israel, or that it is the capital of Israel. He did, however, get the decision he was seeking for 9-year-old Menachem Zivotofsky.

The prominent constitutional law attorney represents Zivotofsky’s parents, who sued the U.S. government after the State Department refused to issue their son a passport listing “Jerusalem, Israel” as his birthplace, rather than only “Jerusalem.” Lewin said in an interview with JointMedia News Service that the Supreme Court’s March 26 decision, stipulating that federal courts of Jerusalem-born Americans can determine the consitutionality of listing “Israel” as their birthplace on U.S. passports, was a “full victory” for the Zivotofsky family.

That “victory” may not seem so obvious at first, given that the Supreme Court did not make a final decision on the constitutionality of a 2002 law the State Department cited when denying the Zivotofsky family’s passport request, instead sending the case back down to lower courts for rehearing on that matter. Thus, the decision “does not and did not decide whether Jerusalem is in Israel or is the capital of Israel,” Lewin said.

Lewin, however, noted that the Supreme Court’s decision was exactly what he was seeking—he had asked the court only to decide whether or not the lower court’s previous refusal to hear the Zivotofsky case had been correct. The lower court had said it deemed the matter “a political issue.” The Supreme Court, by an 8-1 vote, now ruled that it “would be assisted by opinions of the lower court” and said the question of birthplace designation in U.S. passports “was not political.”

“The court’s decision clarifies the political question doctrine used by courts to avoid cases they don’t want,” Lewin said.

Lewin said the Zivotofsky case demonstrated “that there is a lot to be said” with regard to the issue of Jerusalem being recognized as a city in Israel, despite not reaching a final resolution on the matter.

Similar legal shifts cannot be found these days in the State Department, where a recent press release said that Secretary for Public Diplomacy and Public Affairs Kathleen Stephens will visit the Middle East, specifically to “Algeria, Qatar, Jordan, Jerusalem, and Israel,” thus identifying Jerusalem and Israel as separate entities. The wording was eventually changed to “Jerusalem and Tel Aviv,” but when pressed for a clarification on Jerusalem’s status, State Department Spokesperson Victoria Nuland said the issue will “be resolved through negotiations” and that the U.S. will not “prejudge the outcome of those negotiations, including the final status of Jerusalem.”

U.S. passport. Photo by Robert Rexach

In a statement addressed to JointMedia News Service, a State Department spokesperson said regarding Zivotofsky’s passport that “we do not comment on ongoing legal proceedings,” then did comment on the U.S. government’s Jerusalem policy, saying: “U.S. citizens born in Jerusalem may not have ‘Israel’ listed in their passports as their place of birth, [a policy] consistent with our longstanding, clear policy on Jerusalem, which is the same approach taken by prior U.S. Administrations.”

“We believe that through good-faith, direct negotiations, the parties should agree on an outcome that realizes the aspirations of both parties for Jerusalem and safeguards its status for people around the world,” the spokesperson said.

Lewin—a Polish-born, Harvard-educated lawyer who has worked for the State Department and was deputy assistant attorney deneral in the Department of Justice—has been in practice over 45 years and has argued before the Supreme Court approximately 30 times. Several of his cases have focused on issues of freedom of religion or religious practice affecting the Jewish community.

In its decision on Zivotofsky, explained Lewin, the Supreme Court “raised a second question, asking whether it was constitutional for the ‘stateless person’ to have the option of listing ‘Israel’ in his passport.” Doing so, he said, “went back to precedent and power of recognition.” As a result of the decision, the matter has now been returned to the Court of Appeals for the District of Columbia Circuit for argument.

The initial question concerning the Zivotofsky case was whether the Supreme Court would consider it important enough for consideration. Once the court took the case, Lewin said he “felt confident on the political issues.” With regard to the constitutional question, “there is more to be said,” according to Lewin. “I cannot be as sure of the outcome,” he said.

It is Congress that has the power to tell the Secretary of State what the law is regarding Jerusalem’s status, said Lewin. The action of the court, he said, “will not cause conflagrations or upset foreign policy.”

“Menachem is very proud of being born in ‘Jerusalem, Israel’—not in ‘Jerusalem,’ which according to the State Department is not part of any country,” Lewin said. Recording “Jerusalem, Israel” in his passport is “a declaration of what they believe to be true,” the attorney said of Menachem’s family.

Lewin explained that, “the State Department says, while we allow a citizen to self-designate, we don’t agree and say Jerusalem is not a part of Israel.” He understands the need to “give the State Department enough leeway,” noting that there have been “sympathetic voices” agreeing that “Jerusalem, Israel” should be the designated birthplace listing.

“I am confident that by the time of his bar mitzvah, Menachem will have a passport that says Israel,” Lewin said.

The Supreme Court’s March 26 decision “should not lead either side to be overconfident,” attorney Floyd Abrams, a well-known constitutional law expert, told JointMedia News Service.

There is “no doubt” that important barriers to Lewin’s ability to achieve the victory of legalizing “Jerusalem, Israel” on Zivotofsky’s passport were “wiped away by the [Supreme] Court’s ruling,” according to Abrams.

However, Abrams said, the question of whether Congress has the right to make a law that opposes the position of both the executive branch and the State Department remains.

Supreme Court rules federal courts can consider Jerusalem passport issue

American parents of a boy born in Jerusalem can go to court to argue that their son’s U.S. passport can list Israel as his birthplace, the U.S. Supreme Court ruled on Monday in a setback for the U.S. government.

Since the founding of Israel in 1948, successive American governments have declined to recognize any country as having sovereignty over Jerusalem, which is home to the holiest sites in Judaism and Christianity and to the third holiest site in Islam.

The State Department, applying long-standing U.S. policy, insisted that nine-year-old Menachem Zivotofsky’s birth certificate, and thus his passport, show Jerusalem – with no country specified – as the place of birth.

It rejected his mother’s request that it also list Israel.

The parents, Naomi and Ari Zivotofsky, filed a lawsuit in 2003 challenging this in federal court in Washington, D.C., basing their argument on a 2002 American law, passed just before Menachem was born.

This law included a provision allowing Israel to be listed as the place of birth on the passport of any American born in Jerusalem.

A Federal judge and then an appeals court dismissed the lawsuit on the grounds that judges have no authority to order the federal government to change U.S. foreign policy.


However on Monday, the Supreme Court ruled that lower courts had misunderstood the issue and said the case was merely whether Zivotofsky could have the right “to have Israel recorded on his passport as his place of birth.”

“Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel,” Chief Justice John Roberts said in an opinion. Justice Stephen Breyer dissented.

Previous U.S. Presidents George W. Bush and and current President Barack Obama both refused to follow the 2002 law on the grounds that the U.S. Congress unconstitutionally infringed on the president’s power to formulate foreign policy.

Nathan Lewin, a Washington D.C.-based attorney who represented the Zivotofsky family before the Supreme Court, said Congress had the power to control a passport’s contents.

The ruling could affect approximately 50,000 American citizens who have been born in Jerusalem, giving them the option of listing Israel as their birthplace.

Zivotofsky was born on Oct. 17, 2002, in a hospital in west Jerusalem. His U.S.-born parents moved to Israel in 2000. Because his parents are U.S. citizens, Menachem is also a U.S. citizen.

While Israel calls Jerusalem its eternal and indivisible capital, few other countries accept that status. Most, including the United States, maintain their embassies to Israel in Tel Aviv.

Palestinians want East Jerusalem, captured by Israel in 1967, as capital of the state they aim to establish in the West Bank and Gaza Strip, alongside Israel.

The Supreme Court case is Zivotofsky v. Clinton, No. 10-699.

Additional reporting by Jeremy Pelofsky; Editing by Howard Goller and David Brunnstrom

Opinion: Supreme Court decides Zivotofsky suit remains viable

On Monday, 9-year-old Menachem Zivotofsky won a resounding, if partial, victory from the Supreme Court in his litigation against the U.S. government. On an 8-1 vote, the Court decided that the courts can decide whether the President must obey a Congressional command to enter “Israel” in the identity papers of Americans born in Jerusalem.

The case stretches back to 2002, when Congress passed section 214(d) of the 2003 Foreign Relations Authorization Act. It states that when a U.S. citizen is born in Jerusalem, “the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” This was intended to change the practice of the Department of State, which simply records “Jerusalem” as the birthplace, as though the city were floating in the sky, unconnected to any country.

Then-President George W. Bush did two contradictory things. He signed the bill. And he simultaneously wrote in a “signing statement” that he wouldn’t enforce it, because Section 214(d) would “impermissibly interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.” In other words, only the President, not Congress, can decide whether the United States recognizes Jerusalem as being part of Israel. With his signing statement Bush in effect signed the law with one hand while vetoing it with the other.

Shortly thereafter, Menachem was born in Jerusalem to American citizens Rabbi Ari and Naomi Zivotofsky. (Note—Menachem was born in western Jerusalem, which has been Israeli since 1948.) American Consulate officials refused the parents’ request to enter “Israel” on Menachem’s consular report of birth abroad and U.S. passport. “Jerusalem” it must be, the bureaucrats insisted.

The Zivotofskys turned to Naomi’s high school friend, lawyer Alyza Lewin, and her father, constitutional scholar Nat Lewin. (Actually, it was Alyza who had nudged Naomi to test section 214(d).) The Lewins filed suit against the Secretary of State—currently Hillary Clinton, who, ironically, voted for section 214(d) when she was a New York senator.

The District Court dismissed the action on the ground that it presented a “political question.” This somewhat esoteric legal doctrine refers to a quarrel involving the two political branches into which the judiciary won’t intrude. The trial court reasoned that the Constitution commits the conduct of foreign policy, including the recognition of foreign sovereigns, to the executive branch. The court concluded that deciding the case would require it to decide the political status of Jerusalem, which it could not do.

This method of handling the case meant that the court could avoid the fundamental constitutional question at the heart of the case: Does the President or the Congress control American foreign policy? When they disagree, who wins?

On appeal, the Court of Appeals approved of the resolution based on the political question doctrine. But the Supreme Court disagreed.  Writing for the Court, Chief Justice Roberts held that “[t]he courts are fully capable of determining whether this statute may be given effect, or instead must be struck down in light of authority conferred on the Executive by the Constitution.”

The Court found that the lower courts got the wrong answer because they misconstrued the question: “Zivo¬tofsky does not ask the courts to determine whether Jeru¬salem is the capital of Israel. He instead seeks to deter¬mine whether he may vindicate his statutory right, under section 214(d), to choose to have Israel recorded on his passport as his place of birth. . . . To resolve his claim, the Judiciary must decide if Zivotofsky’s interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise.”

Section 214(d) implicates serious constitutional issues. But working out whether a statute is constitutional has long been part of the job description of judges, and does not become a “political question” just because it may have political repercussions.

Justices Sotomayor and Alito wrote concurring opinions in which they agreed with the result but not all of the reasoning in the Roberts opinion. Only Justice Breyer dissented. In his view, the political question doctrine includes prudential reasons to abstain from deciding, and it is imprudent to decide this case, based on “a judicial hesitancy to make decisions that have significant foreign policy implications.”

So is section 214(d) constitutional? Can Congress regulate passports? Does the President have the exclusive recognition power? In the end, which branch of the federal government holds the foreign policy steering wheel? It’s a cliff-hanger—the Court remanded the case back to the Court of Appeals for a further work-up. The Supreme Court doesn’t consider an issue “ripe” until the lower courts have chewed on it first. As Chief Justice Roberts remarked, “Ours is a court of final review and not first view.”

Some conclusions. Those who wanted—or feared—headlines like “Supreme Court decides Jerusalem is part of Israel” are no doubt disappointed—or relieved. But there’s no surprise here. The political question of the status of Jerusalem really was never before the Court.

Those who wanted the constitutional questions of separation of powers determined were also disappointed, but not surprised. It’s standard judicial practice to decide cases on narrow grounds and avoid constitutional issues when practicable. Those issues will now be considered by the Court of Appeals, and may return to the Supreme Court. “May,” not “will,” because the high court decides which cases it wants to hear, and the Justices won’t necessarily choose to finally sort out which branch controls foreign policy. It is, after all, a very difficult constitutional question.

The signing statement issue disappeared from view early on. This is too bad, since using a signing statement as a covert veto is surely unconstitutional. Constitutional law professor Barack Obama came to the White House criticizing Bush’s use of signing statements, but he has taken the same position on Section 214(d) and also refuses to enforce it.

Still, the case will have little to no impact on the 2012 presidential race. If Obama wanted to make a pro-Israel gesture, nothing would be easier than to reject the Bush signing statement, stop fighting the Zivotofskys and enforce Section 214(d). But we can predict that his failure to do so will not harm him politically, since it hasn’t yet.

In the meantime, the Zivotofskys are heading back to court. The end is not in sight. As Alyza Lewin dryly commented, “Menachem Zivotofsky has been our firm’s youngest client for the past nine years—since shortly after he was born. We hope that he will witness a successful conclusion to this litigation by the time he celebrates his Bar-Mitzvah.”

Attorney Paul Kujawsky wrote an amicus curiae brief for members of Congress supporting Zivotofsky in the Supreme Court.

Toulouse killer visited Israel, other countries in the region

The passport of Toulouse killer Mohammed Merah showed that he visited Israel, Syria, Iraq and Jordan, a French newspaper reported.

Police found Merah’s passport in his apartment following the raid Thursday that led to his death, LeMonde reported. It is believed that he tried to visit the West Bank.

Merah jumped to his death from his apartment window during a police raid on his Toulouse home. He was also shot in his head by police as he jumped firing at the officers.

A man riding a motorbike opened fire Monday outside the Ozar Hatorah school where students were waiting to enter the building at the start of the school day. During the more than 30-hour standoff in his apartment with police, Merah said he was the attacker, according to French officials.

Rabbi Jonathan Sandler, 30, and his two young sons, as well as the 7-year-old daughter of the school’s principal, were killed in the attack. They were buried Wednesday in Jerusalem.

Merah told French police he killed the Jewish students at the Ozar Hatorah school Monday in revenge for Palestinian children killed in Gaza, and had killed three French soldiers for serving in Afghanistan. Police found videos he took of the killings with a camera hung around his neck, according to reports.

Merah, a French national of Algerian origin, had claimed ties to al-Qaida in France and reportedly had been known to French intelligence for many years.

Also Thursday, an extremist group known as the Soldiers of Caliphate claimed responsibility for the shootings in France, calling it a response to Israel’s crimes against the Palestinians, according to Haaretz.

“The jihadists everywhere are keen to avenge every drop of blood unfairly shed in Palestine, Afghanistan and elsewhere in Muslim countries,” said the group in a statement posted on an extremist website, according to the newspaper.

Report: Mossad continues to use foreign passports

Agents of Israel’s Mossad intelligence agency reportedly are still using foreign passports to conduct undercover operations in other countries.

According to a report Sunday in The Times of London, new evidence shows that foreign nationals residing in Israel are willingly allowing the Mossad to use their passports.

Several Israelis interviewed by The Times revealed details of how they were approached by Mossad officials about the possibility of volunteering their passports for the Mossad.

In January 2010, it was suspected that Israeli agents used foreign passports to travel undercover into Dubai in order to assassinate Hamas leader Mahmoud al-Mabhouh.

Following the assassination, Dubai police officials revealed that British, French, German and Australian passports were used by the assassination team.

Is Jerusalem in Israel? Supreme Court takes up passport case

The U.S. Supreme Court convened Monday to ponder the implications of a single word that is conspicuously missing from the passport of a 9-year-old boy who was born in Jerusalem.

His name is Menachem Binyamin Zivotofsky, the son of Ari and Naomi Siegman Zivotofsky, Americans who made aliyah in 2000.

Menachem was born at Shaare Zedek Hospital in western Jerusalem, but due to a controversial State Department policy, his U.S. passport does not designate “Israel” as his place of birth—despite a federal statute enacted in October 2002 that says Americans born in Jerusalem are entitled to have Israel listed on their official papers as their birth country.

The Zivotofskys want that law enforced so their son can claim what they feel is his birthright—the inclusion of the word “Israel” on his passport, a statement “that the land of Israel has centrality for the Jewish people,” the boy’s father, Ari Zivotofsky, told reporters after Monday’s court session.

“It’s a very personal issue,” he said.

A decision on the case is not expected for several months.

The arguments and counterarguments presented Monday before the high court focused on several key issues, including which branch of government has the authority to conduct foreign policy and whether or not the appearance of the word “Israel” on a passport is in fact tantamount to an expression of foreign policy.

It is not, argued attorney Nathan Lewin, representing the Zivotofskys. “It is purely a means of identification,” he explained in response to a question from Justice Elena Kagan.

The petitioners maintain that Menachem Zivotofsky is one of an estimated 50,000 Jerusalem-born American citizens who have been unfairly barred from listing their place of birth as “Jerusalem, Israel,” rather than simply “Jerusalem.”

The federal statute that grants those passport holders the right to essentially identify their place of birth as they see fit has been ignored by the administrations of both George W. Bush and Barack Obama, with Bush claiming that it infringes on the president’s authority to formulate foreign policy positions, such as the administration’s stance on the status of Jerusalem.

Secretary of State Hillary Rodham Clinton, the named respondent in the Zivotofskys’ litigation, heads the chief foreign policy arm of the executive branch. She has argued that the State Department’s regulations governing the passport designation of Jerusalem-born American citizens have rightly served to maintain U.S. neutrality on the sensitive issue of sovereignty over Jerusalem. The Zivotofskys contend that the policy is biased against Israel and against Jews who have a religious attachment to the land.

“Congress recognized that with regard to the 50,000 people who have a passport that says ‘Jerusalem,’ they are being denied a certain sense of self-respect that they feel they should be able to have in terms of their own identification,” Lewin told the court in reponse to a question from Justice Samuel Alito. “This is not a statute that is designed to create some political brouhaha or make a foreign policy statement.”

Arguing on behalf of Clinton, Solicitor General Donald Verrilli acknowledged that the position of the administration is that the status of Jerusalem is disputed, and he added: “A passport is not a communication by the passport holder. It’s an official United States document that communicates the position of the United States.”

In response to a challenge from Chief Justice John Roberts, Verrilli added: “I do think that this is an area in which the executive’s got to make the judgment because it’s of paramount importance that the nation speak with one voice.”

The executive’s handling of the Jerusalem issue, Verrilli told the justices, “is a very sensitive and delicate matter. This position was arrived at after very careful thought and it is enforced very carefully.”

The State Department has contended, according to the petitioners, that if American citizens who are natives of Jerusalem are permitted to self-identify as being born in “Israel,” that would create the misperception among Arab states that official U.S. policy on the sovereignty of Jerusalem had changed, which in turn could have serious foreign policy repercussions. The Zivotofskys, however, maintain there is no evidence that would happen.

Further exploring that issue, Kagan posed a hypothetical in an exchange with Verrilli. Suppose, she said, the law governing passports included a disclaimer that stated: “The recording of Israel as a place of birth on a passport shall not constitute recognition of Israel’s sovereignty over Jerusalem.”

“Would that be constitutional?” she asked.

Probably not, Verrilli responded.

Yesterday’s oral-argument session, which lasted for about an hour, was witnessed by a capacity crowd that included a sizeable contingent of spectators with head coverings.

Among them was David Poltorak, a 27-year-old law school graduate who lives in Washington.

“This is about the very essence of separation of powers,” he said prior to the start of the hearing “I’m not convinced that the president has the right to just not heed a law that’s been passed.”

Although Poltorak conceded that there are compelling legal arguments on both sides of the issue, “as a Jew,” he said, he was pulling for the Zivotofskys.

Following the hearing, Poltorak was spotted in a corridor not far from the courtroom. “Nat’s performance was fantastic,” he said, referring to Lewin. “It was a slam dunk.”

“I think it’s still up for grabs,” countered his friend, Pesach Klein, a 24-year-old Washington resident.

Outside on the sun-drenched courthouse plaza, Ari Zivotofsky, 48, a bearded and kippah-wearing neuroscience instructor at an Israeli university, was answering reporters’ questions. His son, Menachem, was busy trying to shun the limelight, his face nearly buried in his father’s side so that little more than his knit kippah was visible.

It was his first visit to the United States. Asked about his impressions of America, Menachem said quietly: “It’s bigger than I thought … but it’s not as fun as I thought it would be.”

U.S. Supreme Court to hear arguments in Jerusalem passport case

The U.S. Supreme Court was scheduled to hear arguments in a case that would allow American citizens born in Jerusalem to have their birthplace listed as Israel on their passports.

Arguments in the case of Zivotofsky v. Clinton were set to be heard Monday. The case involves 9-year-old Menachem Zivotofsky, whose American-Israeli parents, Ari and Naomi, want the birth country on his passport listed as Israel. They cite a law passed by Congress in 2002 that directs the secretary of state, “upon the request of the citizen or the citizen’s legal guardian, [to] record the place of birth as Israel.”

The George W. Bush and Obama administrations have ignored the law and the State Department manual allows that the passports of American citizens born in Jerusalem must say “Jerusalem” as the place of birth and not include Israel, reflecting official U.S. government policy regarding the unresolved status of Jerusalem.

Eleven major Jewish American groups in August filed a friend-of-the-court brief in support of the Zivotofsky’s request. Last month, Americans for Peace Now filed a brief supporting the secretary of state.

The American Jewish Committee has opted not to weigh in, in part because it does not regard the Supreme Court as the appropriate forum to decide foreign policy.

U.S. Supreme Court will hear appeal on Jerusalem passport

The U.S. Supreme Court said it will hear the appeal of a U.S. citizen born in Jerusalem whose parents want Israel listed as his country of birth on his passport.

The court agreed Monday to review a decision by the U.S. Court of Appeals for the District of Columbia Circuit in the case of 9-year-old Menachem Zivotofsky and his parents, Ari and Naomi. A three-judge panel of the appeals court had ruled that it did not have jurisdiction in the case, which was brought under a 2002 law passed shortly before Menachem was born that allows Americans born in Jerusalem to list the city as in “Israel.”

President Bush signed the law but reserved the right to ignore it. Presidents traditionally have resisted efforts to recognize Jerusalem as Israeli, saying that such recognition would pre-empt Israeli-Palestinian negotiations.

State Department officials refused to list Menachem as being born in Israel when his parents, who were both born in America and are U.S. citizens, appeared at the U.S. Embassy in Israel to obtain a passport for their son.

U.S. District Judge Gladys Kessler in 2007 threw out the case, saying the court did not have jurisdiction over the matter because resolving the “claim on the merits would necessarily require the court to decide the political status of Jerusalem. The case law makes clear that the Constitution commits that decision to the executive branch.” The case then went to the appeals court.