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Posts Tagged ‘Nathan Lewin’

America Can Prosecute Terrorists Freed By Israel

Saturday, November 12th, 2011

On August 9, 2001, Ahlam Tamimi, a member of Hamas, drove a suicide bomber to the Sbarro restaurant in the heart of Jerusalem, where the bomber blew himself up, killing 15 people including Judy Greenbaum, an American citizen from New Jersey.

On March 5, 2003, Abigail Leitel, a 14-year-old Baptist schoolgirl born in New Hampshire, was killed, along with 14 Israelis, by a suicide bomber who exploded a bomb on a Haifa bus. Three Hamas members – Fadi Muhammad al-Jabaa, Maedh Abu Sharakh, and Majdi Muhammad Amr – plotted that deadly attack.

On September 9, 2003, a Hamas suicide bomber slew seven people – including American citizens David (a doctor) and Nava Applebaum, who was his daughter and was to be married on that day – at Café Hillel in Jerusalem. Ibrahim Dar Musa helped plan that bombing.

The perpetrators of each of these murders of Americans violated American criminal law and could be prosecuted in American courts. Yet all of them are now free and living in Jordan or Gaza because Hamas demanded that they be released from Israeli prisons in exchange for Hamas’s freeing of Gilad Shalit, an Israeli soldier Hamas captured and held in captivity for more than five years.

Since the Antiterrorism Act of 1990, it has been a capital crime under American law, punishable by “death or imprisonment for any term of years or for life, or both,” to “kill a national of the United States, while such national is outside the United States.” A conspirator in such a crime can get up to 20 years imprisonment. No statute of limitations precludes prosecution of old offenses.

Another law, passed in 1994, made it a federal crime to use an explosive bomb “against a national of the United States while such national is outside of the United States.” In 2002 Congress authorized prosecution in American federal courts of anyone who, with criminal intent, injured “a national of the United States” outside the United States by detonating “an explosive or other legal device in, into or against a place of public use” or “a public transportation system.”

Prosecutions have been brought in American federal courts against individuals responsible for bombings that killed Americans in the Philippines, Colombia, Kenya, and Tanzania. Many of the individuals accused of these crimes were brought here for trial following their extradition, on the request of the United States, from foreign countries. American prosecutors have not, however, charged the Hamas perpetrators of bombings in Israel such as the 2001 and 2003 bombings in Jerusalem and Haifa, even though American citizens were murdered in these attacks. They have relied on the Israeli legal process to arrest and punish the perpetrators.

Tamimi, al-Jabaa, Sharakh, Amr, and Dar Musa were prosecuted and convicted in Israeli courts. They and other perpetrators of these murders received either multiple sentences of life imprisonment or long prison terms. Until they were released by Israel’s government under duress in order to bring Gilad Shalit home, they expected to spend the rest of their lives in Israeli prisons. They are now free in Jordan or Gaza.

The Department of Justice should now indict, extradite, and put to trial in United States courts, under American law, these killers of American citizens. Jordan has an extradition treaty with the United States that covers all offenses “punishable under the laws in both Contracting States by deprivation of liberty for a period of more than one year or by a more severe penalty.” A conspiracy to commit such an offense is also covered by Article 2(2) of the treaty.

No provision of any extradition treaty should preclude bringing these criminals to justice in the United States. The Jordan treaty bars extradition for “political offenses,” but it would be hard to claim the mass terrorist killings of civilians in Jerusalem and Haifa were only “political offenses.” At the least, Jordan should be put to that test.

Following The Law

Wednesday, August 17th, 2011

Last week The Jewish Press published the text of part of attorney Nathan Lewin’s compelling brief to the United States Supreme Court arguing that the State Department should be required to permit American citizens born in Jerusalem to record their place of birth on their passports as “Israel.”

 

Despite the unequivocal law requiring it, the State Department has been singularly intransigent on this matter, apparently as a sop to the authority of the president to “recognize foreign sovereigns” – i.e. control foreign affairs – on the grounds that Israeli sovereignty over Jerusalem is subject to negotiations with the Palestinians.

 

The U.S. government also continues to provide substantial funds to the Palestinian Authority – funds which, as is now being reported, are being diverted to the support of terrorist activity in direct violation of U.S. law.

 

It is time the U.S. followed its laws – if only to signal to the Palestinians that America will not bend the law in order to accommodate their demands.

 

In his brief to the Supreme Court, Mr. Lewin, said,

 

Congress overwhelmingly enacted a narrow law that gives approximately 50,000 American citizens born in Jerusalem the right to have their passports bear the same “place of birth” as American citizens born in Tel Aviv or Haifa .

 

To be sure, as the Obama administration contends, the Constitution invests the president with principal powers over the conduct of foreign policy. And the State Department has made note of the “strenuous objection” expressed by Palestinians over any recognition of Jerusalem as being part of Israel. Yet the law specifically says what it says, and crediting a different view, however artfully packaged, constitutes a violation of law.

 

U.S. law also provides, with respect to U.S. financial assistance to the PA and Gaza that

 

the Secretary of State shall take all appropriate steps to ensure that such assistance is not provided to or through any individual, private or governmental entity, or educational institution that the Secretary knows or has reason to believe advocates, plans, sponsors, engages in, or has engaged in, terrorist activity

 

According to a State Department announcement, the U.S. contributed a total of $600 million to the Palestinian Authority in 2010 with $225 million earmarked to a special fund from which regular payments to Palestinians prisoners in Israeli jails were made. Virtually all of these prisoners were jailed for terrorist crimes.

 

Palestinian Media Watch reports that the PA pays monthly salaries to 5,500 such prisoners which the PA defines in its official Palestinian Registry as “anyone imprisoned in [Israel's] prisons as a result of his participation in the struggle against the occupation.”

 

These are not hidden facts. How then does the State Department fail to condition any aid on the cessation of such encouragement of terror, which is in clear violation of American interests in the Middle East and, at least as important, of explicit American law?

 

What message does this lack of will send to the Palestinians about how serious we are in holding them to what we publicly demand?

 

At all events, the Palestinians are laughing at us. They continue to incite and encourage violence against Israel but maintain that they are partners for peace. They have never taken the steps necessary to prepare their people to accept Israel as a legitimate entity. And they have never been called to task by the U.S. for their duplicity. Why should they be anything but recalcitrant?

Jerusalem-Born U.S. Citizens Are Born In Israel

Wednesday, August 10th, 2011

Editor’s Note: On July 30, the firm of Lewin & Lewin, LLP, filed in the Supreme Court its brief in Zivotofsky v. Clinton, No. 10-699, on which the Supreme Court will hear oral argument in early November.

The constitutional issue in the case is whether Congress had the authority to enact a law in 2002 that directs the Secretary of State to permit U.S. citizens born in Jerusalem to record their place of birth in their passports as “Israel.”

Because the State Department has consistently refused to recognize any part of Jerusalem as being in Israel, the government has refused to implement the 2002 law, claiming it violates the President’s constitutional authority to “recognize foreign sovereigns.”

This is the Introduction to the Zivotofsky brief written by Nathan Lewin, followed by a Summary of Argument.

In our complex modern world, when the national interest often requires instantaneous response to dangers from abroad, Congress routinely assigns the lead in foreign relations to the president. Statutes give him great flexibility in dealing with international relations so that American interests in the world arena can be quickly and effectively implemented.

This is the unusual case in which, on a subject that calls for no emergency treatment, Congress decided that an Executive Branch policy implemented by Department of State bureaucrats for several decades was unjust and discriminatory.

Congress overwhelmingly enacted a narrow law that gives approximately 50,000 American citizens born in Jerusalem the right to have their passports bear the same “place of birth” as American citizens born in Tel Aviv or Haifa. To these Americans, personal dignity and conscientious conviction calls on them to identify themselves as born in “Israel.”

The Department of State policy prohibiting such an entry in the passports of Jerusalem-born American citizens is singularly arbitrary and discriminatory. The Foreign Affairs Manual repeatedly takes account of the “strenuous objection” expressed by Palestinian Americans born within the borders of Israel to having “Israel” recorded on their passports.

To accommodate these “objections,” State Department policy permits substitution of a city of birth so that “Israel” may be eradicated.

The State Department policy also authorizes entries such as “West Bank” or “Gaza Strip,” which are not recognized foreign nations. It bars only supporters of Israel – overwhelmingly Jews who have a religious attachment to the land – from identifying their birthplace in a manner that conforms with their convictions.

The government has chosen to litigate this case by ignoring the narrow and limited impact of the statute Congress enacted. Courts below and this Court have been intimidatingly told that the judiciary is being asked in this case to determine the “status of Jerusalem” – “one of the most sensitive and long-standing disputes in the Arab-Israeli conflict.” But the government will surely acknowledge that Jerusalem’s “status” for American foreign-policy purposes is not affected by whether Jerusalem-born citizens are allowed to record “Israel” as their place of birth. The “status” of Taiwan, which the United States officially determined in 1979 to be part of the People’s Republic of China, was not affected in 1994 when Congress, with a law paralleling Section 214(d), directed that American citizens born in Taiwan should be permitted to record “Taiwan” as their place of birth.

The government does not claim that the practical implementation of Section 214(d) will have any perceptible impact on American foreign policy. There are now approximately 100,000 U.S. passports that record their holders as having been born in Israel because they were born in cities like Tel Aviv and Haifa. If the 50,000 additional American citizens whose passports now read “Jerusalem” travel internationally with passports that say they are born in “Israel,” America’s foreign policy will not be impaired.

The government’s only claim is that the publicity that accompanies the change in practice will be misperceived by Palestinians and the Arab world as an official change in America’s position on the status of Jerusalem. The government cites public statements made when Congress enacted Section 214(d) as proof of this purported adverse foreign policy impact. This fear of unjustified and erroneous foreign misperception – apparently transitory when Congress enacted Section 214(d) – cannot be sufficient to nullify the considered judgment of Congress.

The government acknowledged in discovery that the designation of “place of birth” in a passport has no intrinsic foreign-policy significance. A citizen’s place of birth is recorded in his or her passport only to facilitate identification. It is, like the passport-holder’s name, date of birth, and photograph, a means of identifying the individual. Although the passport is issued under the direction of the Secretary of State, there are portions of the document – such as the individual identifying entries – that have absolutely no foreign-policy significance.

Summary Of Argument

1. Senior Circuit Judge Edwards correctly dismissed as “specious” the contention that this case presents a “political question” that is nonjusticiable and that requires dismissal of the complaint. The “political question doctrine” is a prudential rule that removes the judiciary (a) from controversies that are “beyond judicial competence” because they turn on “policy choices and value determinations” that judges are not empowered to make and (b) from matters (such as impeachment) that are exclusively committed for decision to other branches of government. The central issue in this case is a constitutional separation-of-powers question that is well within the competence and expertise of federal courts: Does Congress have the constitutional authority to enact a law that entitles Jerusalem-born citizens to record “Israel” as their place of birth on passports and CRBAs?

Stephen Solarz: The Jewish Constituent’s Best Friend

Wednesday, December 8th, 2010

Congress has never seen a better friend of the observant Jewish community than Stephen Solarz, who died of esophageal cancer on the 22nd of Kislev. Yonoson Rosenblum’s recently published biography of Rabbi Moshe Sherer describes Solarz as an “invaluable ally” for many Agudath Israel projects and there are 20 references to Solarz in the book’s index.

I repeatedly witnessed Solarz’s dedication to protecting religious observance for Orthodox Jews. In 1978 – when he was still a relatively junior congressman – he initiated a call to me to brainstorm over how observant Jewish postal workers in his district could avoid using up all their annual leave for early departures on winter Fridays and taking days off for the Yomim Tovim. We drafted a Religious Observance Compensatory Time law that Solarz introduced in Congress.

Jimmy Carter’s Department of Justice first objected to the bill, claiming it created an unconstitutional preference for religion because it did not authorize compensatory time for non-religious commitments. Solarz did not cave but demanded a meeting at which the merits of his bill could be aired and discussed before representatives of all interested federal agencies.

Solarz invited me to attend this huge meeting, held at what was then the Bureau of the Budget, with him. We managed, with a forceful presentation, to swing the administration into support for the Solarz bill. It is now federal law (5 U.S.C. 5550a) and enables hundreds, possibly thousands, of federal employees to enjoy some vacation time during the summer with their families.

In 1984, a federal court of appeals ruled that an Air Force psychologist had no constitutional right to wear his yarmulke while he was in uniform seeing patients. I filed an application to the Supreme Court for review of that bad decision but I honestly had little hope the court would agree to hear the case. Solarz leaped into the breach. He called me and suggested he would introduce a bill that, regardless of whether there was a constitutional right, would require the military – as a matter of Congressional statute – to permit the wearing of “unobtrusive” religiously-motivated articles of clothing.

The colloquy on the floor of the House in May 1984 between Solarz and Congressman Wilson of Texas is priceless. Wilson wanted to know whether Texas Indians who wear war bonnets would be covered by Solarz’s law. Solarz noted that bonnets, unlike yarmulkes, were pretty obtrusive. He agreed, however, that one unobtrusive feather might qualify if worn under a hat.

Much to our surprise, the Supreme Court agreed to hear the yarmulke case, and the Solarz legislation, which had run into much greater difficulty in the Senate than in the House, was put on the shelf while the Supreme Court was considering the issue.

The court ruled 5-to-4 against a constitutional right to wear a yarmulke. Solarz promptly revived his bill with some minor modifications. With Solarz’s encouragement a yarmulke of camouflage material was distributed to senators and congressmen to prove that a yarmulke would not reduce the will or ability to be a dedicated U.S. soldier. On September 25, 1987, the Senate voted 55-42 in favor of Solarz’s yarmulke bill. .

Justice William J. Brennan had ended his strong dissent to the Supreme Court’s ruling against the yarmulke with a powerful plea that Congress enact a law protecting the right, so when the bill became law Solarz sent a thank-you letter to Brennan. He enclosed a camouflage yarmulke with the letter, and Brennan acknowledged, in a letter to Solarz (and in conversation with me), that he had put the yarmulke on his head while working at his desk and had forgotten to remove it for the entire day – until he arrived home and his wife asked him what he had on his head.

Solarz’s yarmulke bill is current federal law (10 U.S.C. 774). Military personnel may not be denied the right to wear neat and conservative articles of clothing required by their religious faith while in uniform.

Solarz again led a legislative battle for religious liberty after the Supreme Court ruled in a 1990 case involving the ingestion of peyote by American Indians in a religious ceremony that the First Amendment did not protect religious observance that violated a neutral law. This decision effectively wiped away protection for religious practice that Supreme Court majorities had articulated in the preceding quarter century.

One Standard Of Justice?

Wednesday, July 21st, 2010

A front-page story in The New York Timesof July 10 reported that federal immigration authorities in the Obama administration have adopted a “new strategy” to replace the military-style raids that were conducted in the Bush years to find and arrest illegal aliens.

One such raid, carried out in May 2008, destroyed Agriprocessors, the country’s largest kosher meat-packing plant, and resulted in criminal charges that culminated in a 27-year sentence for Sholom Rubashkin, the principal manager of the Postville, Iowa, plant. The Rubashkin raid netted 389 Hispanics who had gotten their jobs with false documentation. They were arrested, quickly prosecuted, and then deported.

According to the Times, the “quieter enforcement strategy” is to have federal agents “scour companies’ records for illegal immigrant workers” and then tell the employers to fire those who are not properly documented. Three days before the 2008 Agriprocessors raid, a lawyer hired by Rubashkin asked in writing that the local prosecutors and immigration authorities do precisely what is now the “new strategy.” The request was immediately rejected, and the rejection was even acknowledged by a local immigration official in testimony during Rubashkin’s recent federal trial.

Apart from not being raided, have the employers of illegal aliens been treated by federal law-enforcement authorities differently from how Rubashkin was treated? The Times reports that a family-owned fruit-grower company in the State of Washington named Gebbers Farms was found in December 2009 to be employing more than 500 illegal Mexican aliens. Gebbers fired these employees just before Christmas.

Advertisement The federal prosecutors filed criminal charges against Sholom Rubashkin for allegedly knowingly harboring aliens. In the seven months since the Gebbers “audit,” no criminal charges have been filed against any member of the Gebbers family.

The federal prosecutors promptly added to the immigration charges they filed against Rubashkin the claim that he committed bank fraud because the loan agreement he signed with the bank that advanced a line of credit to Agriprocessors represented that he was “in compliance with the law.”

The prosecutors alleged that since he knew that illegal aliens were employed, this representation amounted to bank fraud. (As a result, the prosecutors were permitted to introduce evidence of immigration violations in a trial that was supposed to be limited to bank fraud charges.)

If the United States Attorney for Washington treats the Gebbers the same way Rubashkin was treated, one or more members of the Gebbers family should be arrested and charged not only with immigration violations but, if the Gebbers had any bank loan, with bank fraud as well. The representation that the borrowing company is complying with the law is standard “boilerplate” language in bank-loan documents. The Gebbers’ loan papers should be scrutinized to see if they contain a similar representation.

And, of course, if the Gebbers are treated on a par with Rubashkin, one or more members of the family should be released before trial on any criminal charges that may be filed only if they post a one-million-dollar bond and have their freedom to travel limited by an electronic ankle bracelet. If they plead guilty or a jury returns a guilty verdict, they should be immediately imprisoned, as Rubashkin was.

Any potential federal indictments against the Gebbers should, like Rubashkin’s, allege that a separate federal crime was committed with each illegal alien and with each draw on a line of credit. If the Gebbers are treated as Rubashkin was treated, their indictment will easily exceed the 163 counts in Rubashkin’s indictment.

If a member of the Gebbers family is found guilty of the federal charges, will the federal prosecutor for Washington demand that he or she receive a 25-year prison sentence? Will the sentencing judge add several years to the prosecutor’s recommendation, as Judge Linda Reade of the federal court in Iowa did in Rubashkin’s case?

Other recent illegal-immigration cases, some described in the Timesarticle, are worth comparing with Rubashkin’s. Several restaurant owners who paid their employees in cash and requested little or no documentation of legal status have recently pleaded guilty. George Anagnostou, the owner of two restaurants in Maryland, made a considerable profit from his restaurants, enabling him to purchase two cars, a Harley-Davidson motorcycle, and two homes. His illegal-alien employees were paid in cash and many worked up to 80 hours a week.

Nathan Lewin For The Court Of Appeals

Friday, August 17th, 2001

During the past presidential election, we endorsed George W. Bush even though the opposing ticket featured a Vice-Presidential candidate who is a Sabbath-observer. Thus, in addition to strong support for Israel, we were confident that Mr. Bush, if elected President, would also demonstrate his support for religious observance and for the needs of the Orthodox Jewish community.

President Bush now has an opportunity to prove that he esteems Jewish religious observance with a judicial appointment. The seat reserved for Maryland on the United States Court of Appeals is now vacant. The country's foremost Jewish constitutional litigator, Nathan Lewin, has lived in Maryland for more than 20 years and deserves to be appointed to fill this vacancy.

Mr. Lewin has argued all the important Jewish constitutional cases in the Supreme Court during the past 30 years. He represented the Williamsburg Jewish community in fighting against a race-based legislative reapportionment in 1976, and his arguments were accepted by the Supreme Court 20 years later. He fought for the right to wear a yarmulke in the Air Force, and even though he lost narrowly in the Supreme Court, Congress enacted a law he drafted to protect that right. He won in the Supreme Court the right to display a Chanuka menora in front of Pittsburgh's City Hall, and then carried that victory through the rest of the country in dozens of cases. He defended the law creating a public-school district in the Satmar village of Kiryas Joel, and the school for handicapped children that was established by the law has continued in operation, without missing one day, since it was formed.

And Lewin has not only fought for Jewish rights in courtrooms. He drafted New York's 1982 Get Law and was also the draftsman of the 1972 amendment to the federal Civil Rights Act that protects Sabbath-observing and yarmulke-wearing employees in the private sector. Because of Mr. Lewin's initiative and constitutional defense, federal government employees are now entitled by law to take compensatory time and not lose vacation time for Jewish religious holidays.

What Thurgood Marshall did for African-American civil rights, and what Ruth Bader Ginsburg did for the rights of women, Nathan Lewin has done for Jewish religious rights. He, like these other legal luminaries, deserves a high judicial appointment.

There is no Jewish judge among the 12 current judges of the Court of Appeals for the Fourth Circuit. The last time that court had a Jewish member was in the 1960's, when Simon Sobeloff was a judge. And there was no Jewish appointee among the 11 lawyers, law professors and judges whom President Bush recently nominated for Court of Appeals seats around the country.

There has never been an Orthodox Sabbath-observing Jew on a federal Court of Appeals. Mr. Lewin, who is the grandson of Rabbi Aaron Lewin, the famous ''Reisher Rav'' who was an elected member of Poland's parliament, and son of Dr. Isaac Lewin, the highly respected leader of Agudath Israel who represented Orthodox Jewish interests for many years at the United Nations, would be a fitting first occupant of such a post. He has all the professional qualifications one could possibly seek for this post because he has taught Constitutional Law at the leading law schools (Harvard, Columbia, University of Chicago, and Georgetown); has argued 27 cases in the Supreme Court of the United States; has written for leading newspapers and periodicals; and has served as a law clerk to Supreme Court Justice John M. Harlan and Court of Appeals Judge J. Edward Lumbard.

President Bush can show the regard and support he has for the Orthodox Jewish community and, at the same time, appoint a judge who will be one of the great judicial figures in the history of America's courts by nominating Nathan Lewin to the Court of Appeals for the Fourth Circuit.

Printed from: http://www.jewishpress.com/indepth/editorial/nathan-lewin-for-the-court-of-appeals/2001/08/17/

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