It is an understatement to say we are less than happy that President Trump followed the lead of his immediate three predecessors and declined to order the relocation of the American Embassy in Israel from Tel Aviv to Jerusalem as required by the Jerusalem Embassy Relocation Act of 1995, invoking, as they did, a purported national security interest “waiver” provision in the law.
The problem is that the provision in question allows the president to waive, on national security grounds, the penalties for not moving the embassy but not the law’s mandate to move the embassy.
In fact, conflating the two was a concoction of the Clinton administration, continued by Presidents Bush and Obama and now Trump – and readily bought into by a media anxious to promote the Palestinian narrative regarding Jerusalem.
Briefly, the Jerusalem Relocation Act of 1995 provides in Section 3(a)(3) that “the United states Embassy in Israel should be established in Jerusalem no later than May 31, 1999.”
The law, at Section 3(b) goes on to provide a penalty for non-compliance:
“Not more than 50 percent of the funds appropriated to the Department of State for fiscal 1999 for ‘Acquisition and Maintenance of Buildings Abroad’ may be obligated until the Secretary of State determines and reports to Congress that the United States Embassy in Jerusalem has officially opened.”
(Another provision of the law extends this penalty provision to each succeeding fiscal year if the embassy is not moved.)
However, Section 7, titled “PRESIDENTIAL WAIVER, “provides at (a)(2): “Beginning on October 1, 1998, the President may suspend the limitation set forth in Section 3(b) [i.e., the penalty provision] for a period of six months if he determines and reports to Congress in advance that such suspension is necessary to protect the national security interests of the United States.”
Plainly, the presidential national security interest “waiver” applies by its terms to the statutory penalty (i.e., whether enforcing the penalty would adversely impact on national security), not to the underlying mandate to move the embassy.
So on June 1, the six-month anniversary of President Obama’s final “waiver,” President Trump “waived” and voiced his desire to avoid undermining the possibility of making a deal. Yet in so doing he ignored the distinctions drawn in the law, as did his predecessors and the media.
What rankles is not only that Mr. Trump’s oft-repeated campaign promise to promptly move the embassy has proved to be misleading. The Arab countries now know the new American president is prepared to ignore U.S. law in order to avoid antagonizing them. This is not a healthy signal for them to receive and it does not bode well for any new negotiations.
While there is much to concern us, we also vividly recall President Trump’s statement, during his joint White House press conference with Prime Minister Netanyahu, that he was not wedded to a “two state solution” but would go along with any solution both sides agree to. We read in this formulation a clear indication that he, unlike President Obama, is not prepared to go to the mat to vindicate the defining demand of the Palestinians.
In any event, in six months the question of a presidential “waiver” will again be upon us. Let’s see what happens between now and then.