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August 4, 2015 / 19 Av, 5775
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Doctoring Documents: Postscript

Last week we called attention to the extraordinary reports that the Obama administration had taken to scrubbing references in official documents to Jerusalem as part of Israel.

We noted that these alterations occurred in the course of litigation over the right of Congress to require the State Department to list Israel as the place of birth of American citizens born in Jerusalem if they so requested.

The Obama administration has maintained that any such references would be tantamount to recognition of Jerusalem as part of Israel, which is contrary to U.S. policy and therefore beyond congressional purview as a matter of constitutional law.

We don’t believe the litigation has anything to do with U.S. recognition of Jerusalem as part of Israel but rather is a question of the powers Congress has over what appears on U.S. passports. But it was our assertion of possible criminality involved in the scrubbing that drew some interesting comments.

The New York Sun, though supportive of our general theme, was not persuaded that a crime may have been committed. And our citation of the case of President Clinton’s national security adviser Sandy Berger, who was convicted of pilfering archived documents, as support for our suggestion that criminal acts may have been committed, was pooh-poohed by a reader because Berger’s action took place after he left government (see Letters, this issue).

The relevant federal statute here, 18 USC Sec. 2071, is titled “Concealment, Removal, or Mutilation Generally” and provides as follows:

Whoever willfully and unlawfully conceals, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceedings, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.Whoever, having the custody of any such record, proceedings, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.

On their face, then, the Obama administration’s actions would seem be covered by the federal criminal statute.

The Sun reminded readers that it ran a story by Rick Richman, just after the Supreme Court agreed to hear the case, which first reported “the existence of a series of pictures on the White House website from Vice President Biden’s 2010 trip to Israel, describing him as being in ‘Jerusalem, Israel.’ ” Indeed, Richman’s piece was headlined by The Sun as “Jerusalem Case at Supreme Court May Pit White House Web Site Against the President.”

The Sun also noted that “the case involves the constitutionality of a law that regulates how the State Department refers to place of birth in passports of Americans born in Jerusalem. Normally the State Department just lists ‘Jerusalem,’ with no country. In 2002 Congress required that if an American born in Jerusalem requested, the State Department must list the birth place as ‘Israel.’ Both Presidents Bush and Obama have declined to follow the law, claiming it interferes with presidential prerogatives – and would complicate the peace process. The Sun’s dispatch queried whether the required designation of ‘Israel’ on an individual’s passport really presented an issue of constitutional proportions, since the White House acknowledged on its own website (as did the CIA and State Department on theirs) that Jerusalem is in Israel.”

And The Sun went on to note:

Five days after Mr. Richman’s report, the Weekly Standard put one of the photos of Mr. Biden, and its cutline, up on its website. Within two hours, the White House had scrubbed from the pictures the references to Jerusalem being in Israel. Omri Ceren, a blogger at Commentary Magazine’s “Contentions” site, discovered an even broader pattern suggesting that documents from the Bush era that had referenced Jerusalem, Israel had been scrubbed as well. In the May issue of Commentary, Mr. Ceren writes that, “while some administration officials were telling reporters and the public that there were no Bush-era documents referencing ‘Jerusalem, Israel,’ other administration officials were busy scrubbing Bush-era documents referencing ‘Jerusalem, Israel.’ ”

Kudos to The Sun and, of course, Commentary, for focusing on this story. We wonder at the failure of the media generally to pick up on it.

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