(Carl) Rick Richman reminds us that Sunday is the 9th anniversary of the famous Bush letter that effectively promised Israel the ‘settlement blocs.’ At the time, the letter was overwhelmingly endorsed by both Houses of Congress, but in 2009, President Obama and his Secretary of State, Hillary Clinton, tried to pretend that it didn’t exist, and Obama has continued to behave as if the letter did not exist.
US Secretary of State John FN Kerry is unable to pretend the letter didn’t exist. But that doesn’t mean he’s going to back Israel’s position. Rick Richman explains.
At an April 9 press conference in Tel Aviv, Bow Shapira from Israeli TV (Channel 1) told Kerry he wanted to ask about “a guarantee from the past”–the 2004 Bush letter, which he described as “telling that blocs of settlements can stay, cannot [be] removed from the territory.” His question about the guarantee was straightforward: “well, does it exist?” Kerry responded in part as follows:
I remember that commitment very well because I was running for president then, and I personally have supported the notion that the situation on the ground has changed, and obviously, we’re talking about blocs that are in a very different status. I’m not going to get into telling you what ought to happen with respect to any particular piece of geography today because that’s for the parties to decide in their negotiation. But I have certainly supported the notion publicly myself that we need to deal with the ’67 lines, plus the swaps that reflect some of the changes that have taken place since then.
It is not surprising that Kerry remembered the commitment so well. He appeared on “Meet the Press” on April 18, 2004–four days after the Bush letter was issued–and was asked directly about it by Tim Russert:
MR. RUSSERT: On Thursday, President Bush … said that Israel can keep part of the land seized in the 1967 Middle East War and asserted the Palestinian refugees cannot go back to their particular homes. Do you support President Bush?
SEN. KERRY: Yes.
MR. RUSSERT: Completely?
SEN. KERRY: Yes.
Kerry’s response to the Israeli reporter last week is significant, because he recognized: (1) that the Bush letter was in fact a commitment, subsequently endorsed by both the Senate (95-3) and the House (407-9) in concurrent resolutions; and (2) that he supported it at the time, in unambiguous terms.
But it is indicative of the continuing problem President Obama created with his refusal in 2009 to endorse the Bush letter that an Israeli reporter felt it necessary to ask whether the U.S. commitment exists. The president has been attempting to assure Israelis with his have-your-back, all-options-on-the-table rhetorical commitments, but they remember that in the past he did not feel constrained to respect even a written commitment to Israel.
Given that Obama doesn’t live up to his commitments, why should Israel give up real assets to appease him?
One of the most refreshing pieces of news in a long time in the U.S. is that Mitt Romney clearly understands that a two-state solution between Israel and Palestine will never happen. Why? Because Palestine will not accept Israel’s right to exist. It’s that simple. George Bush would not acknowledge that fact. Condoleeza Rice wouldn’t acknowledge the fact. The Palestinian Authority and Hamas can fix the problem – not the U.S., not Russia, not the Arab League.
The website Mother Jones released a recording of Romney’s remarks made at a private fundraiser. Jimmy Carter’s grandson with the assistance of Mother Jones comumnist, David Corn, secretly recorded the event.
According to M-Jones, Romney said this:
“I look at the Palestinians not wanting to see peace anyway, for political purposes, committed to the destruction and elimination of Israel, and these thorny issues, and I say there’s just no way.”
[S]o what you do is, you say, you move things along the best way you can. You hope for some degree of stability, but you recognize that this is going to remain an unsolved problem…and we kick the ball down the field and hope that ultimately, somehow, something will happen and resolve it.”
Then the Leftist website went on to translate:
Romney was indicating he did not believe in the peace process and, as president, would aim to postpone significant action
If Mother Jones can translate, so can I. Romney didn’t “indicate,” he would postpone significant action, he acknowledged there would be no significant action for a two-state solution without the Palestinian Authority and Hamas accepting Israel’s right to exist. The U.S. cannot make it happen, nor Russia.
There would have been a two-state solution years ago, had the various governing Palestinian factions simply acknowledged Israel’s right to exist as a people. That’s what Israel has asked for to get final talks moving, and they have asked for it for years. Palestinian Charters and their versions of a Constitution call for the extermination of Israel. Israel wants the language removed, and Palestine has refused.
Jihad Watch May 31, 2011:
Whereas Hamas openly denies Israel’s right to exist in both English and Arabic, the PA professes in English before the international community to have recognized Israel’s right to exist. As documented by Palestinian Media Watch, when addressing its own people in Arabic, the PA – like Hamas – completely denies Israel’s right to exist.
In the same JihadWatch article linked above, long before the movie 2016: Obama’s America came out, Robert Spencer documents that the Palestinian Authority considers Jews and the Nation of Israel colonialists, and having no connection to the land. As D’Souza in 2016 clearly demonstrated: colonialism is at the bottom of Obama’s agenda. Remember Obama Senior’s close friend, saying during an interview with D’Souza, that Senior ‘hated’ colonialism and the friend still ‘hates’ it today – he spit the words out and you could feel the deep-seeded emotion behind his hate. 2016 shows the former colonized areas of the world and the help Obama has given them, specifically, while denying America’s own interests. Then there’s the Churchill bust that was out of the White House immediately upon Obama’s arrival there. I believe D’Souza was spot-on.
“The Zionists must acknowledge publicly, in front of the world, that the Jews have no connection to the Palestinian Arab land, upon whose ruins arose the colonialist settler Zionist plan that settles and expels, represented by the Israeli apartheid state. That which occurred two thousand years ago (i.e., the Jewish/Israeli presence in the land), assuming that it is true, represents in the book of history nothing more than invention and falsification and a coarse and crude form of colonialism.” [Al-Hayat Al-Jadida, May 27, 2011]A two-state solution will never happen until and unless Palestine acknowledges Israel’s right to exist. George W. Bush had to know this, yet he continued with his two-state talks that he surely knew would disappoint time after time. I don’t know what Condi Rice actually understood about the region and history, but her stern push for Israel to bow without being recognized is unforgivable.Benjamin Netanyahu, in 2009, stated again, he was open to a two-state solution:In “a very good meeting” that lasted 79 minutes, Netanyahu said, he and Obama discussed “our quest for peace with the Palestinians.” And during that meeting, he added, “I outlined my vision of a demilitarized Palestinian state” that would recognize “the Jewish state.”…“The problem we face is to make sure that doesn’t repeat itself,” he said. Israel’s withdrawal from Lebanon was “step one,” its evacuation from Gaza was “step two,” and the country “cannot afford step 3.”
In his remark about Jerusalem, made in response to a question from the audience, the Israeli leader said, “Everyone knows that there are Jewish neighborhoods in Jerusalem that under any peace plan will remain where they are.”
That implied that other neighborhoods of Jerusalem may not remain “where they are” and could become part of an eventual Palestinian state, Uriel Hellman of the JTA reported. The JTA interpreted the remark as “a hint that that his government’s insistence on Israeli sovereignty over all of Jerusalem might not be ironclad.” SourceIsrael Matzav March 2012:
The latest round of rocket fire from Gaza underscored just how ill-considered it would be to relinquish more land to the Palestinians in Judea and Samaria. The recent Harvard one-state conference demonstrated how clinging to an unfeasible formula has merely generated the opportunity to promote even more menacing alternatives.
For whatever the final contours of a putative Palestinian state, it would entail a frontier of at least 300 kilometers – approximately six times longer than the Gaza front – much of which would be adjacent to Israel’s most populous urban centers, from the environs of Haifa in the north to Beersheba and beyond in the south. (Significantly, Beersheba is much closer to the pre-1967 border of the “West Bank” than it is to the Gaza Strip).
Moreover, unlike in Gaza, a Palestinian state in Judea and Samaria would reduce Israel’s width in its most populous areas to a minuscule 11-25 km. – roughly the distance from Beverly Hills to Malibu along Sunset Boulevard.
Even more important than geographic expanse – or the lack thereof – is topographical structure. Unlike the flat Gaza Strip, the limestone hills that comprise the “West Bank” dominate the urbanized Coastal Plain, together with much of Israel’s vital infrastructure, its only international airport, vital centers of civilian government and military command – and 80 percent of its population and commercial activity. ~ Martin ShermanIn 2007, The Arab League endorsed recognizing Israel. Hamas did not.
The team of international peace brokers – the United States, United Nations, Russia and the European Union – has demanded that the PA government recognize Israel, renounce violence and abide by previously signed peace agreements in order to lift the sanctions imposed in the wake of the 2006 Hamas election victory.
“We are demanding that the government meet these three conditions,” Livni stressed.
The Arab initiative, drafted at a March 2002 meeting of the Arab League in Beirut, calls for the full normalization of ties between Israel and the Arab world in return for a complete Israeli withdrawal from all lands captured in the 1967 Six-Day War. Source
Israel has been willing to go back to 1967 borders, but must have the assurance of a true peace, otherwise their borders are not defensible, as has been proven over and over. How can you live side-by-side with those pledging to kill you when your borders allow no safety for the people? Read a reminder of how Israel gained territory in 1967 and why.Mother Jones says Romney spoke of “the Palestinians as a united bloc of one mindset,” and indeed he did, because he knows who rules, and it isn’t ordinary Palestinians trying to live a normal life. The issue is the acceptance of the right of Israel to exist.
LOL Bush Convicted of War Crimes in Malaysia …yeah not a bit hypocritical for a country known for Cruel PunishmentMay 13, 2012
Really it’s funny. They actually help Bush. Malaysia doesn’t sound biased at all… nah.
Obama is trying to mimic G W Bush in that he supports Islam, but not radical Islam… but the real radical departure was that he no longer shows any loyalty to Islamic allies who have no Democracy. The moral statement rings hollow, but it is going to scare the hell out of the Saudis… who Obama is trying to play nice with. This shows how incompetent Obama really is. He can’t even help the so called “Moderates” he believes exist.
…this was not a speech about Israeli-Palestinian issues. On the contrary, he was trying to find a framework for pushing that question onto a backburner. Here he failed completely…
President Barack Obama’s big Middle East speech is extraordinarily important. I think that it has been largely misinterpreted and deserves a very detailed examination. Forgive me then for analyzing it at length but that’s necessary to understand both Obama’s thinking and policy.
First and foremost, this could be called Obama’s George Bush speech.
The intention was to find some way to make the main priority of U.S. policy the support of democracy in the Arab world. This is precisely the theme that Obama’s supporters ridiculed when Bush did it. So Obama had to find some way to approach the issue without anyone realizing he had copied Bush. He succeeded! No one seems to have caught on yet.Continue reading: Obama’s Middle East Speech: The Opposite of Strategy Is Catastrophe
Barry Rubin is director of the Global Research in International Affairs (GLORIA) Center and editor of the Middle East Review of International Affairs (MERIA) Journal. His latest books are The Israel-Arab Reader (seventh edition), The Long War for Freedom: The Arab Struggle for Democracy in the Middle East (Wiley), and The Truth About Syria (Palgrave-Macmillan). His latest book is Israel: An Introduction, to be published by Yale University Press later this year. You can read more of Barry Rubin’s posts at Rubin Reports, and now on his new blog, Rubin Reports, on Pajamas Media
The U.S. Constitution Doesn’t Give the President the RIGHT to Overrule Congress on PASSPORTS.
…but this guy seems to think the argument is at an impasse. Nonsense. If neither party is designated powers then there is no framework to take the power away from Congress. Thus the Congress has the right to say a child born in Jerusalem is an Israeli
Richard A. Epstein (Peter and Kirsten Bedford Senior Fellow and member of the Property Rights, Freedom, and Prosperity Task Force)
Congress says yes. The State Department says no. So what’s U.S. policy?
In modern political life, symbolic issues are often the most difficult to resolve. Nowhere is that more true than in international relationships, where passions often run hot, as with the ongoing dispute between Israelis and Palestinians over the legal status of Jerusalem. This debate is now playing itself out within the three branches of U.S. government, provoking a serious constitutional debate over separation of powers that next term will land in the lap of the United States Supreme Court.
Young Menachem Binyamin Zivotofsky, an American, was born in Jerusalem in 2002. Shortly thereafter, his parents requested that the U.S. State Department list Israel as his birthplace on his passport. Under long-standing State Department policy, Jerusalem is not regarded as part of either Israel or Palestine, but is treated as a neutral city whose ultimate status will be determined by negotiations between the two parties. Hence State Department policy requires that only Jerusalem be listed as the place of birth, without mention of Israel. Congress, however, had other ideas. With scant attention to any of the constitutional niceties, in 2002 Congress adopted a statute that was on a collision course with State Department policy:
28 United States Code Section 214d RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES. — For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.
The explicit conflict between the congressional command and the State Department policy prompted then-President George W. Bush (like all previous presidents of both parties) to note in his presidential signing statement that this provision encroached on his presidential prerogative to be the sole organ of the American government in foreign relations.
Zivotofsky’s parents filed a lawsuit on their son’s behalf challenging that claim, which Hilary Clinton, as the current secretary of state in the Obama administration, continues to resist in good bipartisan fashion. The many conflicts that arise here are those between two branches of government, not two political parties.
First, there is the question of whether the statutory provision in question confers any “justiciable” right—i.e. one that can be decided in court—upon the individual applicant. In its defense of this suit, the United States government has argued that any disputes between Congress and the president should never end up in the lap of the courts, but should be handled by negotiations between the two branches of government.
Congress’ statute was on a collision course with State Department policy.
At one level, this argument is rooted in the concept of “standing,” which claims that young Zivotofsky has no protected interest in going to court. As a technical matter, the one clear place for the standing doctrine is as a bar to advisory opinions that either the president or Congress might seek from the courts.
Yet in this instance, advice is not what is sought. What is demanded is that the government issue Zivotofsky a passport stamped with Israel as his place of birth. No matter how narrow the definition of standing, Zivotofsky is in a unique position to demand that the government issue that document. Thus the case is far removed from those cases in which citizens or taxpayers seek to enjoin or compel government action; in such cases the Supreme Court has routinely denied standing. But as long as the State Department resists Zivotofsky’s demands, he has standing to challenge its action, just as if it had refused to issue him a passport at all.
Second, the Secretary of State is insisting that passing the statute in question is beyond the power of Congress because it deals with foreign affairs—an area that the Constitution entrusts exclusively to the president.
The Constitution actually does no such thing. For starters, it is clear that Congress has the power to “establish a uniform rule of naturalization” (of foreigners), to “regulate commerce with foreign nations”, to “declare war” (against presumably foreign nations), and to control appropriations for the armed forces of the United States.
Noticeably missing from this list, however, is an explicit congressional power to authorize, let alone regulate, the ability of the president and the executive branch to issue passports. That textual lacuna has never stopped anyone before and it will not stop anyone today. Thus, 28 U.S.C. § 211a confers on the secretary of state the “authority to grant, issue, and verify passports.”
So here is the ticklish position for the secretary of state: if Section 211a can authorize the secretary of state to issue passports, why can’t section 214d limit and direct how that power is exercised? To this fair question, the State Department offers two answers, one procedural and the other substantive.
Procedurally, the State Department claims that the federal courts do not have “subject matter jurisdiction” to hear the case because the entire matter ultimately dissolves into a bare-knuckle political dispute between Congress and the executive branch. By using the words “subject matter jurisdiction,” the secretary of state claims that the courts have no power over the executive branch to do what they always do—deal with individual grievances under the law.
At one level, that claim is downright scary. Does the president really believe, for instance, that the government can detain individuals without the judicial oversight normally supplied by the writ of habeas corpus? If Congress orders the president to bring the prisoners forward for a hearing, is the question of imprisonment beyond the power of the courts to hear? That cannot be.
Does the Constitution entrust foreign affairs exclusively to the president?
The political question doctrine—yet another facet of justiciability— resonates when the issue is whether the courts are asked to stop military activities in Vietnam because Congress did not “declare” a war for which it appropriated funds. Yet that large political debate catches no particular individual in the crossfire. Hence, courts are well-advised to steer clear of those disputes. But in this case, the secretary of state has chosen to defy an explicit statutory command that confers rights on discrete persons. Surely, on this issue, some judicial response is appropriate.
On the substantive issue, the secretary of state’s position is that Section 214d (dealing with Jerusalem) is unconstitutional insofar as it purports to tell the State Department how to run foreign policy.
The great irony here is that the presidential claim for control over all foreign affairs is, constitutionally, just as shaky as the congressional claim. As a general matter, setting the ground rules for issuing passports looks like the kind of legislative issue entrusted not to the president but to Congress.
The basic constitutional command requires that the president “take care that the laws be faithfully executed.” Inserting the little word “be” suggests that the president cannot escape his duty to implement legislation by letting subordinate officers in the executive branch flout the law.
At this point, the use of the word “shall” in section 214d seems to put a hammerlock on the secretary of state. Section 214d says, “For … a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” Yet the secretary of state argues, implausibly, that the word “shall” in this context really means “may,” so that she “may” (or “may not”) follow a statute that is now reduced to an empty set of words.
More dramatic is the secretary of state’s other claim, which is that Section 214d is unconstitutional because it intrudes into matters of foreign affairs that are exclusively reserved to the executive branch. But search as one may, there is no explicit authority granting the president power to issue passports in Article II of the Constitution, which deals with the executive branch. Issuing passports certainly does not fall to the president in his role as the commander-in-chief of the armed forces. After all, most passports are not war-related.
The Constitution is a fragile and imperfect document.
The secretary of state takes great store in the provision that allows the president of the United States to “receive ambassadors and other public ministers”—as if there were anyone else in Washington who could do that job. But the leap from that modest power to full control over foreign affairs rests on a chain of fanciful inferences with little to no textual backing.
To be sure, the Supreme Court has often said that the power to receive ambassadors necessarily entails the power to decide whether or not to recognize the government that purports to send them, which in turn requires the president to have full control over foreign policy. But by such logic, Congress’s control over foreign commerce and its power to declare war also gives it the power to decide who counts as friend or foe to the United States, and thus to set legislative ground rules telling the president which ambassadors to receive and which to turn away from our doors.
Neither of these attenuated chains of power is the slightest bit persuasive. Indeed, the best textual reading of the Constitution is that it contains a huge gap. Every nation has to have a system of passport control, and our Founding Fathers just forgot to give anyone explicit control over its organization and operation.
How then should the impasse be resolved? There are two organizing principles, neither of which is decisive.
The first says that once there is an essential federal function, the usual division of power between the president and Congress should apply. Congress sets the rules of the game, while the president carries them out.
The second approach cares little for abstract principle but holds instead that in the absence of clear textual authorization one way or the other, the current Supreme Court should stick to its earlier precedents, which in this case, without question, are weighted heavily in favor of the president. On that view, Congress upsets the presidential prerogative by forcing the secretary of state to issue passports marked Israel for American citizens born in Jerusalem.
That position has prevailed thus far in two lower courts, and the betting here is that it will prevail again in the Supreme Court. The likelihood of success is not rooted in the argument’s intrinsic merit, but rather in its historical pedigree, which the president defends ferociously while Congress moves on to other business.
But whatever the eventual outcome, this entire episode should serve as a sober reminder that the Constitution is a fragile and imperfect document that largely survives by the good will and mutual forbearance of our key institutional players. As such, historical practice necessarily counts as much as, and in some instances even more than, original meaning.
The point here is not to belittle, let alone reject, rigorous canons of interpretation—canons that the Supreme Court has violated on more than one occasion. Rather, it refers to the more humbling point that it is not possible to discern any original intention on a question that the framers of our Constitution simply forgot to address. The larger lesson is a plea for patience in the fervent hope that this dispute will quietly resolve itself before any real damage is done. Here, as in so many other cases, the Constitution is as much a matter of statecraft as it is of textual interpretation.
Richard Epstein is the Peter and Kirsten Bedford Senior Fellow at Hoover. He is also the Laurence A. Tisch Professor of Law at New York University. His areas of expertise include constitutional law, intellectual property, and property rights. His most recent books are The Case Against the Employee Free Choice Act (Hoover Press, 2009) and Supreme Neglect: How to Revive the Constitutional Protection for Private Property (Oxford Press, 2008).
Letters to the editor may be sent to firstname.lastname@example.org. Editors reserve the right to reject or publish (and edit) letters.
the president does not have the right to control legislation involving passports. Congress has that power. The president might have that same power, but it does not allow him to overrule the legislative power of Congress. The Constitution does not give the president that kind of frame, but a president might not listen to the Constitution.
the Bush administration said Congress may not tell the president what to do regarding this aspect of foreign relations.
The Obama administration agrees with its predecessor.
When the high court hears arguments in the fall, the issue will be whether the congressional directive impermissibly interferes with the president’s power.
The State Department’s longstanding policy has been to refrain from expressing a view about Jerusalem’s status, despite the congressional action as well as Israel’s assertion of sovereignty over all of Jerusalem and declaration of the city as its capital. Israel’s victory in the 1967 Six-Day War brought the entire city under Israeli control.
The U.S., which keeps its embassy in Tel Aviv, and most nations do not recognize Jerusalem as the capital and say the city’s status should be resolved in negotiations between Israel and the Palestinians.
Ari Zivotofsky, the boy’s father, said in an interview in Israel that he considers Jerusalem part of Israel.
“As a U.S. citizen and a resident of Israel, I find it a little bit strange that the U.S. doesn’t recognize Israeli sovereignty over Jerusalem, and certainly the western half, where the hospital is located,” he said.
“Jerusalem is subject to dispute as to its future status. Its current status seems to me pretty clear. When the U.S. government mails its consular officials mail, they mail it to Jerusalem, Israel,” he said.
Had Menachem been born in Tel Aviv, the State Department would have issued a passport listing his place of birth as Israel. The regular practice for recording the birth of a U.S. citizen abroad is to list the country where it occurred.
But the department’s guide tells consular officials, “For a person born in Jerusalem, write Jerusalem as the place of birth in the passport.”
Israel’s supporters in Congress have long objected to the official position on Jerusalem. In 1995, Congress essentially adopted the Israeli position, saying the U.S. should recognize a united Jerusalem as Israel’s capital. Then in 2002, lawmakers passed new provisions urging the president to take steps to move the embassy to Jerusalem and allowing Americans born in Jerusalem to have their place of birth listed as Israel.
The measures were part of a large foreign affairs bill that President George W. Bush signed into law. But even as he did so, Bush issued a signing statement in which he said that “U.S. policy regarding Jerusalem has not changed.” The president said Congress could not tell him what to do in this matter of foreign affairs.
Presidential signing statements, which have been used for centuries, became a point of controversy during Bush’s presidency. He issued them more often than any other president. Democrats in Congress complained that he used them to pick and choose parts of legislation he could ignore, overstepping his bounds as president.
After the Zivotofskys took their complaint to federal court in 2003, a judge refused to get in the middle of the dispute over Jerusalem’s status. It was a political question, the judge said, for Congress and the president to work out without the intervention of the courts.
U.S. District Judge Gladys Kessler said that if the courts were to get involved in a case about Jerusalem’s status, “a controversial reaction is virtually guaranteed. Such a reaction can only further complicate and undermine United States efforts to help resolve the Middle East conflict.”
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed that it had no authority to consider the claim.
One appellate judge, Harry Edwards, said he disagreed with his colleagues. But he would have ruled against the Zivotofskys. Edwards said the Constitution clearly gives the president exclusive power in this area and that it was important for the courts to say so.
That’s the question the court agreed on Monday to answer.