WASHINGTON - Menachem Binyamin Zivotofsky of Jerusalem, just 3 years old, emerged victorious last week in his battle with the U.S. administration - a small and perhaps temporary victory, but sweet nevertheless. The U.S. Court of Appeals upheld his arguments and decided to send his case back to the U.S. District Court for the District of Columbia, so that "both sides may develop a more complete record relating to these and other subjects of dispute." The two parties are the child (and his parents, Ari and Naomi) and U.S. Secretary of State Condoleezza Rice.
All said, the ruling is a technical one: Zivotofsky has an argument worthy of deliberation, the judges decided. Via his parents, Zivotofsky is making a simple request: He wants his U.S. passport to record him as born in "Israel," and not, as the U.S. Consulate decided, in "Jerusalem."
The U.S. administration, as a matter of policy, is not willing to confirm that U.S. citizens who were born in Jerusalem were indeed born in Israel because, as was argued by the state's representative in court, the issue is "the subject of profound dispute" and Israel's claim to sovereignty over the city has never been decided.
Two facts bear mentioning: One, the U.S. Embassy is located in Tel Aviv; and two, the passport of a U.S. citizen who is born in Jerusalem will not include the word "Israel," according to State Department regulations behind the actions of the consular officials.
Zivotofsky petitioned the court based on a law passed by Congress in 2002. Among the law's requirements, Zivotofsky is arguing, is that the secretary of state list Israel as the country of origin for U.S. citizens born in Jerusalem on passports, birth certificates and certificates of nationality. But the U.S. administration refuses to recognize this.
During the State Department authorization signing ceremony, President Bush said, "U.S. policy regarding Jerusalem has not changed," and that the Jerusalem provisions "would, if construed as mandatory rather than advisory, 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."
The U.S. District Court rejected Zivotofsky's original petition, ruling that the administration had exclusive jurisdiction when it came to the question of political recognition. The Federal Appeals Court, however, believes the debate over the issue has yet to be exhausted.
According to Zivotofsky's lawyer, Nathan Lewin, the child's right to have his passport bear the name of the country in which he was born has been violated by the state. Contrary to the original petition, in which Zivotofsky had asked for his passport to list him as born in "Jerusalem, Israel," the parties have agreed that the upcoming debate will focus on the question of whether the word "Israel" alone should be written in the document.
The judges heard the oral arguments of the parties in November, with a significant portion of the debate dedicated to the question of whether Zivotofsky had the right to sue at all. Lewin convinced the judges that his client did have the right to sue, and that the State Department's regulations had caused him "damage."
However, the Federal Appeals Court did not rule on the essential issue - the political question.
The judges and the state's representative spent a long time arguing over the meaning of the word "shall" that appears in the Congressional law. Is it sufficient for the law to stipulate that the administration "shall" write "Israel?" The state argued that such a stipulation was insufficient; the judges weren't convinced.
The crux of the issue at stake is not Jerusalem's political status, but the power of Congress versus the power of the president. Under the U.S. Constitution, the president is authorized "to receive ambassadors and other state officials" from foreign countries - hence the interpretation that the president has the power to recognize (or not) other states. And this lies behind the administration's disregard for the Congressional law.
"Are you aware of precedents in which the Supreme Court ruled in favor of the president contrary to the position of Congress?" the Federal Appeals Court asked the state's representative.
"I am not aware" of such cases, the state's representative admitted.
This question will now come up for discussion again before the District Court.