Part I: A personal story
One fundamental civil right that the US government bestows on any US citizen living outside the United States is the opportunity for any child of any US citizens who left America after the age of 18 to receive an American passport and American birth certificate.
And so it was when our first two children, born in Tzfat- Noam in 1982 and Rivka in 1983.
Before embarking on their first trip to the US to greet their eager grandparents in Philadelphia, we made the proverbial pilgrimage to the US embassy in Tel Aviv to process US birth certificates and passports for these foreign born yankees.
Place of birth listed on their US documents : Tfzat, Israel.
Fast forward.
Sara and I were blessed with Elchanan in 1986, followed by Leora in 1987. They were each born at the Misgav Ladach hospital on the western side of Jerusalem.
In 1988, getting ready to acquaint their Philadelphia grandparents with two more grandchildren, we filed applications for US citizens passports and birth certificates.at the US consulate in Jerusalem, because they were born in Jerusalem, and we made our new home in Efrat, a Jerusalem suburb.
We filled out forms for our two youngest children, while their big siblings patrolled the consulate courtyard with their bikes.
The service was efficient. One minor detail. Fresh passports of Elchanan and Leora printed their place of birth as Jerusalem, with no country.
Having opened up a news agency in 1987, I pulled out my press card and asked the clerk to explain this indiscretion.
With a stone face, she said: “This is a matter of policy”. Pressing her further, she said that the political officer would be ready to explain the policy.
Climbing two flights to the inner sanctum of the US consulate, donning the press card on my lapel, I saw the US press attache react with surprise to my question. “Your grandchildren got their birth certificates – what more do you want” This guy had apparently been a cast character in Oliver. (“Please sir. I want some more”…”You want more?”)
The conversation turned serious. The US press attache flipped through his files in the primordial era before Google search when officials had paper files.
He pulled out a US statute from 1949 which defined Jerusalem as an international zone, with no sovereignty for Israel. Upon writing to US Senator Daniel Moynihan from New York, I got the same answer.
Jerusalem Post “In Jerusalem” correspondent Suri Ackerman made a headline out of the story of US non recognition of Jerusalem as part of Jerusalem as part of Israel. I wrote to everyone possible.
We got the same answer from all US government officials.
Fast forward to 2018. The US moved the embassy to Jerusalem. Yet no change in policy. Since that event, we have been blessed with three more grandchildren born in Jerusalem: Yishai, David Yitzhak, and Tovia.
Their new birth certificates still proclaimed: JERUSALEM, with no nation mentioned. Perhaps the US move of the embassy to Jerusalem was not real, I wrote…until the last week of October, 2020, when, thanks to President Trump's straight thinking and the ZOA's battle (see below), US families whose children were born in Jerusalem were informed by the US embassy, that their passports and birth certificates would now be updated to read: “Jerusalem, Israel”.
In other words, the US move of the embassy to Jerusalem was not “fake news”. We call that a vindication and a victory, against all odds.
David Bedein is director of Israel Resource News Agency and heads the Center for Near East Policy Research, author of Genesis of the Palestinian Authority and Roadblock to Peace: How the UN Perpetuates the Arab-Israeli Conflict: UNRWA Policies Reconsidered.
Part II: Behind the scenes: The legal fight of the Zionist Organization of America
By Susan B. Tuchman, Esq. & Morton A. Klein
(JNS) U.S. Secretary of State Mike Pompeo announced on Oct. 29 that U.S. citizens born in Jerusalem will now have the right to have “Israel” listed as their birthplace on their passports. This is a right that the Zionist Organization of America began fighting for 17 years ago.
In 2002, Congress passed legislation permitting American citizens born in Jerusalem to have “Israel” recorded as their birthplace on their passports, and President George W. Bush signed it into law. The law was clear, mandating the State Department to list “Israel” if the request was made.
But after the State Department refused to enforce the law, the ZOA sued on behalf of an American citizen born in Jerusalem whose parents’ request to have “Israel” listed on his passport was denied. The ZOA was the only Jewish organization to take formal legal action to enforce the law. Separately, attorneys Nathan Lewin and Alyza Lewin brought suit on behalf of Menachem Zivotofsky, another American citizen born in Jerusalem whose legal right was violated. The two cases were consolidated in the federal district court in Washington, D.C.
The Zivotofsky case made its way to the U.S. Supreme Court—twice, with a stop in between at the U.S. Court of Appeals for the D.C. Circuit. The ZOA submitted amicus briefs in support of Zivotofsky in the Court of Appeals and the Supreme Court.
The main issue in the case was whether the 2002 federal law impermissibly infringed on the president’s power to recognize foreign sovereigns since the United States has never formally recognized Israel’s sovereignty over Jerusalem.
The ZOA’s briefs showed that this could not be a genuine concern. For years, many departments and agencies in the U.S. government, including the State Department, were routinely referring to Jerusalem as part of the State of Israel. Even the White House was doing it with no discernible impact on the president’s foreign-policy powers. It was thus hard to conclude that enforcing the 2002 law, which would simply allow “Israel” to be listed on a passport of someone born in Jerusalem, would have any such impact.
ZOA gave example after example of the numerous references to “Jerusalem, Israel” by the State Department, the Commerce Department, the Defense Department, the Department of Homeland Security, the Justice Department, the Treasury Department and others. Even the Executive Office of the president referred to Jerusalem as part of Israel.
ZOA’s argument must have been compelling because days after the ZOA filed its first brief with these “Jerusalem, Israel” citations, many of the references were changed to “Jerusalem” only. “Israel” was deleted. Scrubbing the record, however, didn’t change the fact that the U.S. government was routinely referring to Jerusalem as part of Israel with no negative consequences, and that there would surely be no such consequences if the 2002 law was enforced as written.
The ZOA’s amicus briefs also showed the double standard that the State Department was applying. It was refusing to enforce the 2002 law because the United States had not officially recognized Jerusalem as part of the State of Israel. But what the U.S. government officially recognized did not always govern the State Department’s actions. It would sometimes defer to the personal preferences of American citizens when it came to what would be listed on their passports, even if that meant ignoring which country had sovereignty over the area of the citizens’ birth.
American citizens born before 1948 in an area that became part of the sovereign State of Israel (not including Jerusalem and certain other areas) were not required by the State Department to list “Israel” as their birthplace. They could choose “Palestine” instead, even though Palestine is not and never has been a sovereign nation.
American citizens born before 1948 in an area that became part of the sovereign State of Israel (not including Jerusalem and certain other areas) were not required by the State Department to list “Israel” as their birthplace. They could choose “Palestine” instead, even though Palestine is not and never has been a sovereign nation.
The State Department also honored certain personal preferences of American citizens born in sovereign Israel in or after 1948. If they objected to listing “Israel,” they could choose their city or town—Tel Aviv or Haifa, for example—instead. If the personal preferences of those who did not want to identify with Israel could be honored, it was hard to justify why the State Department would not honor the preferences of those who did wish to identify Israel as their birthplace.
Disappointingly, the Supreme Court decided in 2015 that the 2002 law was unconstitutional because it infringed on the president’s sole authority to recognize foreign sovereigns. The majority opinion was delivered by Justice Anthony M. Kennedy and joined in by the three Jewish justices on the court.
What followed with the election of Donald Trump to the presidency changed everything for many Jews and Israel supporters. In December 2017, he recognized Jerusalem as Israel’s capital and ordered that the U.S. embassy be relocated from Tel Aviv to Jerusalem, where it sits today.
This latest decision by the Trump administration with regard to the passports of Americans born in Jerusalem is consistent with that recognition and is welcome news. President Trump has ended a long irrational injustice. After ZOA fought such a long legal battle, it is gratifying that these Americans can finally identify the fact that Jerusalem, Israel, is their birthplace.
Susan B. Tuchman is director of the Zionist Organization of America’s Center for Law and Justice. Morton A. Klein is the national president of the Zionist Organization of America.
