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Supreme Court Decides to Hear Case on Jerusalem Passport

May 4, 2011

The U.S. Supreme Court announced Monday that 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.

In October 2002, Menachem Zivotofsky was born in Jerusalem to parents who are US citizens, making him a citizen as well. In December 2002, Menachem's mother applied for a US passport for her son at the US Embassy in Tel Aviv, requesting that her son's place of birth be recorded as “Jerusalem, Israel.” But US diplomatic officials told Mrs. Zivotofsky that State Department policy forbade them from recording “Israel” as her son's birthplace, only simply "Jerusalem." This is because the US has never formally recognized Jerusalem as part of "Israel", since under the UN partition plan of 1947, the city was supposed to have become an international zone.

In September 2003, Menachem’s parents filed a lawsuit in the District of Columbia against the Secretary of State, ordering him to comply with the Foreign Relations Authorization Act of 2002, which requires the State Department to relocate the US embassy from Tel Aviv to Jerusalem and to issue passports to US citizens born in Jerusalem reading “Jerusalem, Israel." Former President George W. Bush had signed this bill, but declared in a signing statement that this part of the bill was not binding as it infringed on his executive powers to make foreign policy. The lawsuit was rejected by district and appeals courts, and now the Supreme Court has agreed to hear it.

The Supreme Court stated on Monday: "In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, impermissibly infringes the President's power to recognize foreign sovereigns."

For centuries, Jerusalem has been home to a community of pious Jews who lived in poverty and devoted their lives to studying and practicing the Torah. These Jews lived peacefully alongside their Arab neighbors and had no nationalistic aspirations. As the twentieth century dawned, the newly founded Zionist movement established agricultural settlements in Palestine and increased Jewish immigration. The new immigrants were very different from the old Jewish community. They came with a shovel in one hand and a gun in the other. Their goal was to establish a Jewish state, by force of arms if necessary.

The Jews of Jerusalem realized that this new movement would jeopardize the peace they had enjoyed for so many centuries. Furthermore, as religious Jews, they believed that only the messiah could reestablish the Jewish state, and they saw any attempt to establish a Jewish state before the messiah as blasphemous. Therefore, they asked of the British Mandate government that they be treated as an independent community with no connection to Zionism. On this issue, the Jews of Jerusalem were strongly backed by the vast majority of Orthodox rabbis throughout Europe, the center of the Jewish world at that time, who shared their opposition to Zionism and a Jewish state.

In the summer of 1947, when the United Nations Special Committee on Palestine was in Jerusalem compiling its report, Rabbi Yosef Tzvi Dushinsky, chief rabbi of the old religious community of Jerusalem, appeared before the committee to plead with them not to recommend a Jewish state, and if they did, at least not to include Jerusalem in that state.

Rav Dushinsky
Rabbi Dushinsky speaks before the UN commission.

And indeed, the UN’s Resolution 181 on Palestine, which passed in November 1947, recommended that Palestine be divided into two states, one Jewish and one Arab, with Jerusalem as an international zone administered by the UN.

It is important to realize that the UN resolution in no way affects or changes Jewish law, which prohibits any Jewish state during our era of exile. The Three Oaths prohibit "forcing the end of exile" i.e. establishing Jewish sovereignty at any time before G-d sends us the messiah. They also prohibit any armed takeover of the Holy Land, and the Zionists certainly fought a war to take over the land, despite the UN resolution. Furthermore, the Zionists took much more land than was allotted to them.

In the ensuing battle between the Zionists, the local Arab militias and the Jordanian Arab legion, Jerusalem was divided. The Zionists took the western half and the Jordanians took the eastern half, including the walled Old City. Since this episode in history is often misunderstood, with many people assuming that the Zionists were under attack in Jerusalem and were forced to fight back, let us take a moment to relate the events as they actually happened.

Ben-Gurion and his fellow Zionists accepted the UN's partition plan readily, but it was no secret that his plan was to take Jerusalem as soon as the British Mandate expired. In an attempt to prevent this, Abdel Khader Al-Husseini, a cousin of the Mufti of Jerusalem, organized a small militia of Palestinian Arabs to besiege Jerusalem by blocking the only western approach to the city. His purpose was to prevent the Haganah and Palmach, the Zionist armies, from bringing in ammunition and arms to their men in Jerusalem. In the last weeks before the end of the Mandate, the Haganah and Palmach tried to take the villages that lined the road to Jerusalem from Al-Husseini's men, especially Kastel and Latrun. Kastel fell to the Zionists on April 2, and the Zionist town Mevaseret Zion was later built on its ruins.

On April 9, the Zionist terror organizations Irgun and Lehi (the Stern Gang) carried out their infamous massacre in the village of Deir Yassin, near Jerusalem, next to the Jewish neighborhood of Givas Shaul. Deir Yassin was a defenseless, neutral Arab village with no ties to Al-Husseini's group. The Irgun's purpose was solely to scare the Arabs all over Palestine into fleeing for their lives before they met the same fate as the approximately 100 men, women and children killed in Deir Yassin.

One day earlier, on April 8, 1948, the Brisker Rav and the Chazon Ish encouraged all the religious Jews of Jerusalem to come out to the streets and wave the white flag to show the Arabs and the British that they were not Zionists and wanted no part in this war. The demonstration was led by Rabbi Yaakov Halperin, a close disciple of the Chazon Ish, and Rabbi Amram Blau, a close disciple of the Brisker Rav.

Several hundred Jews of the Old Yishuv gathered in the Meah Shearim Yeshiva to say Tehillim and hear speeches. Then they came out and began to march down Meah Shearim Street. Businesses closed and thousands of other residents joined the march. They held white banners reading, "We are for peace! We demand a ceasefire!" The leaflets they handed out read, "Do not blindly follow the leaders of the Zionist Agency, who refuse to listen to our holy Torah! Do not allow your sons and daughters to be killed for the sake of a state of emptiness! We are for peace! Jews, rise up against the policies of the leadership of the Agency, who are mafkir Jewish blood. The Zionist leadership does not represent us! We are Jews, and we will follow the Torah's guidance! We are for peace! We turn to the British Government to save us from our predicament!"

The demonstrators had planned to march to the British Mandate offices to deliver their message in person. But they had only reached Geulah Street when the Zionist Haganah met them with blows and shots. They beat the demonstrators mercilessly until they scattered and ran home. The Zionists also confiscated all films and pictures taken of the demonstration before they could reach the media. The Jews of the Old Yishuv submitted their plea to the British in writing.

After the demonstration, another leaflet was published explaining its purpose, and, following in the footsteps of Yishaya Hanavi, telling the impatient-hearted to wait for Hashem's redemption: "It is true that among the nations of the world the sword rules, and whoever is stronger wins. But the Jewish people is completely different. Its salvation and redemption will come from the Rock of Israel, and as fast as we repent and purify our minds of thoughts borrowed from the nations, that is how fast our redemption will come. Our land then will be much bigger than the strip they are fighting for now. But we will not get it through our power and not by the sword, but by Hashem's salvation. In the meantime, let us not force the end by killing, G-d forbid, the remainder of the Jews. Let us guard the coal of Israel from being extinguished, G-d forbid. Let us keep our young men, each of whom is worth an entire world... Let us gird ourselves with patience for that great and awesome day, when Hashem will gather us in... We knew we would be beaten for delivering this message. We knew we would be laughed at. But the feelings of Ahavas Yisroel that burn in our hearts did not allow us to stay home and keep our bodies and dignity intact. We exposed ourselves to blows in order to express our position, which is only for the good of the Jewish people."

The Chazon Ish later remarked, "When the state was established, there was a kitrug (accusation) in Heaven against Jews of Eretz Yisroel for not leaving the state. I myself was ready to leave. But when they marched in Jerusalem holding white banners demanding a ceasefire, the accusation was dropped and there was atonement."

The Palestinian Arabs hardly had any weapons to fight with, and the other Arab states (Egypt, Lebanon, Iraq and Syria) did not have strong armies. The only Arab state with a strong army was Jordan (then called Transjordan; it became Jordan after it annexed the West Bank in 1949). Jordan's army was under the command of experienced British officers, headed by John Glubb. But Abdullah, king of Jordan, had no intention of fighting a war against the Zionists. His only plan was to take over those sections of Palestine that had been allotted by the UN for an Arab state. He was opposed to the Palestinian leader, the Mufti of Jerusalem, and besides, he knew that if he did not take the West Bank, the Zionists certainly would.

Abdullah's prime minister, Tewfik Abu Hoda, went to Britain and asked permission from the British foreign minister, Ernest Bevin, to take the West Bank. Bevin said yes, with two conditions: Jordan must not take the land allotted to the Zionists, and Jordan must not take Jerusalem, which was supposed to become an international zone. Jordan agreed to both of these conditions.

On the first day of the war, May 15, 1948, Ben-Gurion immediately gave the order to the Haganah to capture Jerusalem, the Old and New City. David Shaltiel, commander of the Haganah in New Jerusalem, figured that would not be too hard, provided that the Jordanian army did not mix in. They would have to fight only the local, poorly armed Palestinian militias.

Furthermore, the Haganah would have a free hand to import arms to Jerusalem, because the Arab Liberation Army - a group of volunteers funded by the Arab states, under the leadership of Fawzi el-Kaukji - had abandoned their positions on the slopes of Latrun. These slopes overlooked the road to Jerusalem, and as long as an Arab army was there, it was impossible for the Zionists to bring any arms or food to Jerusalem. But now the ALA had received orders from the Arab Higher Committee to leave and make room for the regular Arab armies to invade.

Had the Zionists been smarter, they would have positioned their men on the Latrun slopes at this point, while they were still unoccupied.

In the Old City of Jerusalem, the local Palestinian militias fought against Haganah troops in the Jewish quarter. In a short time, the Palestinians captured a good part of the quarter. The religious Jewish inhabitants of the Old City, numbering about 1700 at that time, begged the Haganah to surrender, saying, "Save our lives and surrender. We have lived for many centuries in peace with the Arabs. If you surrender we can continue to live here and enjoy that peace." But the Haganah commander in the Old City, Moshe Russnak, only radioed Shaltiel for help.

Rabbi Yisroel Zev Mintzberg, Rabbi Ben Zion Chazan and Rabbi Mordechai Weingarten sent a surrender message to the Arabs. But the Haganah was not ready to surrender. Perhaps Shaltiel would help, and besides, the Arabs had run out of ammunition.

The Arabs of Jerusalem called King Abdullah in Amman for help, but Abdullah did not want to break his promise to the British, who were his mainstay. Finally, a few days into the battle, Abdullah relented and gave orders to Major Abdullah El-Tell to take Jerusalem. Glubb, who was higher in the chain of command, had not really wanted a war, but at this point he had no choice. He quickly stationed his men on the Latrun slopes to besiege Jerusalem.

El-Tell conquered the Jewish quarter of the Old City house by house, synagogue by synagogue. on Friday, May 28, Rabbi Ben Zion Chazan decided that he must surrender to the Jordanians, even at the risk of his life. He emerged from his synagogue holding a white flag. The Haganah immediately opened fire on him, wounding him in the leg. Eventually, however, Russnak told his forces not to kill the old rabbi. Rabbi Chazan, Rabbi Weingarten and a Haganah representative came to El-Tell to sign the surrender document. All men were taken prisoner, and women, children and elderly people were sent to the New City. Leaving Old Jerusalem for the last time, the Jews probably thought to themselves how different things would have been if the Zionists had accepted the UN plan and not tried to conquer the city.

Rav Dushinsky
Rabbi Weingarten and El-Tell at the surrender of Jerusalem

After their takeover of the Old City, Jordan's army began shelling the New City, with the goal of weakening its inhabitants in preparation for a ground takeover. On the western side, Jordan held the Latrun slopes and did not let any arms or food into Jerusalem. The situation grew more and more serious for the Jews of Jerusalem - there was only enough bread for four or five more days.

The Zionists brought in an experienced American Jewish general named David "Mickey" Marcus. He tried twice to take Latrun, but failed. However, he came up with a different plan - to build a new road through the mountains and break the siege of Jerusalem.

But there was not enough time to finish the road and bring in enough arms to hold the city. In two days, the Zionists realized that Jerusalem would fall into Jordanian hands.

At the same time, the UN had dispatched an emissary, Count Folke Bernadotte of Sweden, to broker a ceasefire. Ben-Gurion, knowing that his men could not hold Jerusalem much longer, agreed to the ceasefire. The ceasefire began on June 11, two days after the new road to Jerusalem opened. Throughout the four weeks of quiet, Ben-Gurion knew that Jerusalem could be reinforced with a limitless amount of arms and ammunition. True, the UN did not allow arms to be transported to Jerusalem during the ceasefire, but that was no problem - the UN checked only vehicles traveling on the main road, not the new, secret road. As Ben-Gurion and all Zionists after him say, "Oom, Shmoom" (UN, Shmu-N).

In the meantime, the British cut off all their aid to Jordan and pulled all British officers out of the Jordanian army (with the exception of John Glubb). Jordan, as well as all the other Arab countries, were left without arms, even as the Zionists' arms and manpower increased by a large factor. The Haganah and Palmach reorganized themselves during the ceasefire to become the "Israel Defense Force." The name "defense" was of course chosen deliberately to deceive the world into thinking that their entire purpose was to defend and protect Jewish lives. Actually, their purpose was to take over the land and found a state, to take more land than the UN had allotted them, and to drive 700,000 Palestinian Arabs out of their 500 ancestral villages throughout the Holy Land. In so doing the Zionist army lit the fires of conflict in the Middle East, and then presented themselves as a defense force, to put out the fire that they themselves started.

Not only were the Zionists superior to the Arabs in arms; they were overwhelmingly superior in numbers. All the Arab countries together contributed about 60,000 soldiers to the 1948 war, but the Zionists had 115,000. If any comparison is to be made with David and Goliath, it is the Zionists who were the Goliath.

When the ceasefire ended on July 9 and the war broke out again, the Zionists easily took the New City of Jerusalem and drove out the Jordanians. They could have taken the Old City too and perhaps the entire West Bank, but the UN and their mediator, Bernadotte, quickly made another ceasefire on July 17.

This new ceasefire lasted two months. During this time Bernadotte wrote up a long report containing the three points he held to be necessary in order to establish a lasting peace: 1) The borders must be the partition plan borders; any adjustments must be balanced for both sides. 2) Jerusalem must be an international zone under a UN trusteeship. 3) The Zionists must allow all Palestinian refugees to return to their homes.

All these points were, obviously, against everything Ben-Gurion and the other Zionist leaders wanted. On September 17, the Stern Gang terrorists assassinated Bernadotte as he was traveling by car in Jerusalem. Ben-Gurion, as usual, spoke empty words: "We will catch the murderers and punish them." He certainly knew who the Stern Gang leaders were. Their highest leader, who gave the orders to kill Bernadotte, was Yitzchak Shamir, who later became prime minister. But Ben-Gurion never punished them. He dissolved the Stern Gang and arrested a few people. Most of them were quickly released from jail, and one of the assassins, Nathan Friedman, became elected to the first Israeli Knesset in 1949.

Bernadotte
Count Folke Bernadotte, UN Mediator, assassinated by the Zionists

A statue of Bernadotte and a tribute to him is now in a special section of the UN building in New York City. However, no mention is made there of the fact that he was killed by Zionist terrorists.

One of the assassins, Yehoshua Zetler, said, "We killed Bernadotte because he put Jerusalem in danger, by saying that it should be an international zone."

One month later, the UN General Assembly adopted Resolution 194, calling for two of Bernadotte's points: that the Zionists allow back the refugees, and that Jerusalem should be an international zone. The Zionists announced their readiness to implement the resolution, but this was only a ploy to gain membership in the UN. Not only did they not allow the refugees back; right after that, in October 1948, they occupied the entire Galilee and drove out a few hundred thousand more Palestinians. When President Harry S. Truman demanded an explanation, the Zionists sent him a note: "The war has proved the indispensability to the survival of Israel of certain vital areas not comprised in the original share of the Jewish state. The Palestinian refugees are members of an aggressor group defeated in a war of its own making."

Consistent with the UN resolution, President Truman recognized the new State of Israel, but not its sovereignty over Jerusalem. To this day, the US embassy is located in Tel Aviv, not Jerusalem, despite the fact that Israel claims Jerusalem as its capital. The same is true of the embassies of almost all other countries. Only two countries have embassies in Jerusalem — Costa Rica and El Salvador.

Of the 184 nations with which America has diplomatic relations, "Israel" is the only one where the United States does not recognize the capital or have its embassy located in that city. The U.S. embassy, like most others, is in Tel Aviv, 40 miles from Jerusalem. The United States maintains a consulate in east Jerusalem that deals with Palestinians in the territories and works independently of the embassy, reporting directly to Washington.

In 1995, Congress passed the Jerusalem Embassy Act, under which the US must relocate its embassy to Jerusalem. However, a presidential waiver was included which left the enforcement of this act up to the president’s judgment. Presidents Clinton, George W. Bush and Obama have until now all exercised this right and postponed the moving of the embassy.

In 2002, another attempt was made to use the legislative branch to determine US policy on Jerusalem, in the form of the Foreign Relations Authorization Act. Aside from requiring the relocation of the embassy, this bill required the State Department to issue passports to US citizens born in Jerusalem reading “Jerusalem, Israel," instead of simply "Jerusalem" as has been the State Department's longtime policy. President George W. Bush signed the bill, but in a signing statement declared that this part of the bill was not binding as it infringed on his executive powers to make foreign policy. “The US policy regarding Jerusalem has not changed,” said the President.

Enactment of the law provoked confusion and criticism overseas. The US Consulate in Jerusalem informed the State Department that “despite best efforts to get the word out that US policy on Jerusalem has not changed, the reservations contained in the President's signing statement have been all but ignored, as Palestinians focus on what they consider the negative precedent and symbolism of an American law declaring that Israel's capital is Jerusalem.”

As Orthodox Jews, we identify with the centuries-old Jewish community of Jerusalem who never had any interest in Zionism or Israeli sovereignty over the Holy City. Whether US policy regarding Jerusalem changes or not, we fear that if American Jews are seen as those pushing for the change, it will give rise to hatred and violence against Jews both here and in Jerusalem itself.

Therefore, our message to the Supreme Court is as follows: We plead with you to declare unequivocally that in this case, Congress has no right to dictate foreign policy to the President. Former President Bush and President Obama know well that the United States must stay on the moral side of this issue and not reward thieves - thieves of both land and Jewish identity - for taking what the international community declared, and continues to declare, is not theirs.

To do otherwise would not only be an injustice; it would endanger us, American Jewish communities, because we would be seen, more than ever, as using our congressmen and the judicial system to push this country into blindly following the Zionist agenda.