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September 2, 2015 / 18 Elul, 5775
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The United States And Menachem Zivotofsky


As is being widely reported, microphones accidentally left on at the G20 meeting last week picked up some rather interesting private remarks between President Barak Obama and French President Nicolas Sarkozy. After facing reporters in a formal press conference, the two presidents went to a private room to discuss other matters. Their conversation apparently began with President Obama’s rebuking Mr. Sarkozy for not having alerted him that France would be voting in favor of the Palestinians’ bid for membership in UNESCO, despite the U.S.’s well-known objection.

The conversation moved on to Israel and Benjamin Netanyahu. Sarkozy reportedly said of the Israeli prime minister, “I cannot stand him. He is a liar.” President Obama then said, according to the report, “You’re fed up with him – I have to deal with him every day!”

On its face, this is not all that remarkable. Especially in the post-WikiLeaks world we realize there are things uttered by world leaders in private they would be loath to say in public. President Ronald Reagan, for example, made less than complimentary private remarks about then-Israeli Prime Minister Menachem Begin while Mr. Begin’s successor, Yitzhak Shamir, had little positive to say in private about Mr. Reagan’s successor, George Herbert Walker Bush.

But those remarks typically came to light years after the principals had left office. There is something disturbing when one hears or reads about a sitting president of the United States making a disparaging remark about a sitting Israeli prime minister and sharing that sentiment with the leader of another country.

In recent months Mr. Obama has sought to present himself as a friend of Israel. This after attempting for nearly two years to shift America’s Mideast policy from one of perceived confrontation with the Muslim world to one of accommodation, even if that tilt would necessarily come at the expense of Israel, which has benefited from many years of pro-Israel policies pursued by the U.S.

But lately the president has supported Israel at the United Nations and has pledged to continue to do so. And according to Israeli officials, military and strategic cooperation between the U.S. and Israel has never been better. Much of the changed atmosphere in U.S.-Israel relations, however, can no doubt be attributed to the flack the president had been taking from many of his own party members and from the approach of the 2012 presidential election.

If the president really wished to put supporters of Israel at ease, he had a golden opportunity in the Zivotofsky case, but has thus far failed to direct the State Department to follow the law.

This past Monday the U.S. Supreme Court heard argument in a case involving a federal law directing the State Department to list the birthplace of American citizens born in Jerusalem as “ Israel.” The case arose when the parents of Menachem Zivotofsky, who was born in Jerusalem, requested that the place of birth on his U.S. passport be listed as “Israel” pursuant to the law. The State Department refused and instead listed “Jerusalem” as the place of birth.

The State Department maintains that the issue involves the conduct of American foreign policy, which is the exclusive jurisdiction of the Executive Branch, not Congress. Further, it is maintained that Israeli sovereignty over any part of Jerusalem has never been recognized by the United States. Rather, the State Department says, sovereignty over Jerusalem is a matter to be negotiated between Israel and the Palestinians.

The Zivotofskys are being represented by the Washington law firm of Lewin and Lewin and the case was argued on Monday by Nathan Lewin, a top constitutional lawyer who has guided the activities of countless Jewish activists for several decades. So there is hardly a need for us to opine on the merits of the Zivotofskys’ case.

We can appreciate that the Obama administration would be zealous in defending its perceived foreign policy prerogatives, however stretched in particular instances. But there is also another dimension in play.

This passport law case would seem tailor made for a president who wants to demonstrate that he really is a friend of Israel. To be sure, the foreign policy implications of the passport law, which really involve only ministerial issues, have been overblown by the State Department. So for Mr. Obama to signal a clear “tilt” toward our community, he need do nothing more than follow the law.

And there is, after all, precedent  – recent precedent – for taking just such an approach. When UNESCO granted the Palestinians full membership, the administration, citing federal law, promptly and without argument suspended funding to that UN agency despite any potential negative fallout for U.S. foreign policy.

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