A Reopened Jerusalem Consulate Will Again Proclaim that Jerusalem Is Not in Israel
By Alyza Lewin and Nathan Lewin | 14 Oct 2021

Many consider the Biden administration’s oft-expressed intent to open a US consulate-general in Jerusalem a minor administrative change. In fact, it is a dangerous resurrection of a fiction that dominated American attitudes and policy toward Israel for decades.

It is nothing less than a devious scheme to reverse US recognition that Jerusalem is in Israel by pressuring Israeli Prime Minister Naftali Bennett to abandon Israel’s claim to sovereignty over its own capital city. If Bennett acquiesces to US pressure, he will go down in history as the Israeli leader who gave away Jerusalem.

In May 1948, President Harry Truman was the first world leader to recognize the modern State of Israel, only 11 minutes after its creation. But for the following 70 years, successive US presidential administrations steadfastly refused to formally recognize the City of Jerusalem as being in the State of Israel. It took us 18 years of pro bono litigation, with two appearances before the US Supreme Court and working with the prior administration, to overturn the State Department’s long-running position. That position had effectively treated as stateless thousands of American citizens born in Jerusalem.

We began representing Menachem Binyamin Zivotofsky soon after he was born in Jerusalem. His American-born parents sought for him what most people take for granted—the right to list his country of birth on his American identity papers. That right was denied to him for almost two decades. His government-issued American birth certificate left blank the space for his country of birth. Although US passports routinely designate the country of a foreign-born passport-holder’s birth, Menachem’s listed “Jerusalem” instead of “Israel”—as if the City of Jerusalem was not actually in any country.

Congress had overwhelmingly endorsed Israel’s assertion of sovereign jurisdiction over Jerusalem in the Jerusalem Embassy Act of 1995. Nonetheless, Presidents Bill Clinton, George W. Bush and Barack Obama—yielding to the State Department’s Arabist contingent—overrode Congress’s decision with various baseless “findings.” They continued to deny that any portion of the city (neither “West” nor “East” Jerusalem) was actually in Israel. This led to confusion and embarrassment.

In September 2016, President Obama delivered a eulogy at the funeral of former Israeli President Shimon Peres. The funeral was held on Mt. Herzl, Israel’s national cemetery—a location comparable to Arlington National Cemetery in the United States. The White House published the president’s remarks with the tagline: “Mt. Herzl, Jerusalem, Israel.” Hours later, the White House issued a “corrected” version of President Obama’s remarks with only a single “correction”—a line strike-through the word “Israel.” American foreign policy thus viewed the distinguished cemetery on Mt. Herzl—which has been under Israel’s sovereign control since the modern Jewish state was established in 1948—as not being located in Israel.

The State Department did not apply this policy even-handedly. Opponents of Israel born before 1948 could, if they chose, designate on their passports “Palestine” as their place of birth, as if the Jewish State had never been created. Those born in Tel Aviv or Haifa who were unhappy to see “Israel” on their US passports were entitled to substitute the city in which they were born for the country. Only American citizens born in Jerusalem were denied this choice of individual identification.

The Supreme Court concluded our marathon lawsuit for Menachem Zivotofsky with a definitive ruling giving the president sole and exclusive constitutional authority to recognize foreign governments and their boundaries, including the location of cities. While the Court’s 2015 decision looked like a defeat, it actually turned into a triumph when, in December 2017, the previous US administration formally recognized Jerusalem as the capital of Israel.

In May 2018, the US embassy was relocated from Tel Aviv to Jerusalem, rendering the Jerusalem consulate superfluous. Up until that time, pursuant to the US fiction that treated Jerusalem as a city outside Israel, the US consul-general in Jerusalem reported directly to the State Department—as if he were reporting from a location not in Israel. All this changed when the US administration recognized Jerusalem as not only being in Israel but as Israel’s capital, thereby merging the consulate and the embassy. The building on David Flusser Street in the Talpiot neighborhood of Jerusalem that had housed the US consulate was converted into the new US embassy. The operations that had been conducted there and at the annex on Agron Street in downtown Jerusalem were brought under the auspices of the embassy, thus finally achieving full legal compliance with the Jerusalem Embassy Act of 1995.

The Proclamation recognizing Jerusalem as the capital of Israel opens with the following words: “The foreign policy of the United States is grounded in principled realism, which begins with an honest acknowledgment of plain facts.” It took nearly seven decades for the United States to formally recognize the “plain fact” that Jerusalem is located in the State of Israel. Moving the US embassy to Jerusalem and consolidating the operations of the Jerusalem consulate and the US embassy followed directly from that “plain fact.” In further recognition of that “plain fact,” the State Department changed its passport policy in October 2020 to finally provide American citizens born in Jerusalem with what they, and our client, had fought for—the right to list “Israel” as their country of birth.

The consular and diplomatic services that have been offered since 1844 by the Jerusalem consulate are currently available for everyone to access in the US embassy in Jerusalem. If the Biden administration wishes to make these services more accessible to Palestinians, a consulate could be opened in Ramallah, near the government headquarters of the Palestinian Authority, under the auspices of the US embassy operating in Israel’s capital. But there is no practical reason to now open a separate consulate in Jerusalem.

This is not about dividing Jerusalem. It is about denying Israel’s sovereignty over Jerusalem. The American diplomats who conduct the embassy’s Palestinian Affairs Unit currently have their office in the heart of West Jerusalem on Agron Street, an area that has been under Israel’s control since 1948. If the Biden administration converts the Agron Street complex or any location in Jerusalem into a de facto embassy to the Palestinian Authority, complete with a consul-general who reports not to the US ambassador but directly to the State Department, America would be resurrecting from the grave a dangerous fabrication that it finally buried three years ago.

America, in short, would yet again be proclaiming to the world that Jerusalem, including West Jerusalem, is not part of the sovereign State of Israel. The new administration should not make this mistake.

The views expressed in this article are the writers’ own.

Nathan Lewin and Alyza D. Lewin are Washington, DC attorneys who litigated the Zivotofsky passport case pro-bono for 18 years (twice to the US Supreme Court) in order that Jerusalem-born American citizens could list “Israel” as their place of birth.

Afghanistan Lost, Values Vanquished
By Faye Lincoln | 4 Oct 2021

For the sake of ending a 20-year war, the demise of Afghanistan’s democracy and the tragedy of lives lost is the gravest of all failings on the part of the US. By negotiating troop withdrawals with the Taliban, the Islamic fundamentalist group that harbored al-Qaeda during the 9/11 attacks, America failed in preserving the value of peace. Instead, it is increasing the chances of war in the region. The implications for Israel might be stunning.

The advance announcements of deadline dates for troop withdrawals allowed the Taliban to plan and strengthen their capabilities. Removing military forces from Afghanistan became the top priority, leaving little protection in the country to safely bring home those remaining American citizens. US leaders did not provide advance notice to NATO coalition partners of its final evacuation plans. As a result, ISIS-Khorasan Province (ISIS-K), the Islamic State’s arm in Afghanistan, killed 13 US service members and over 90 Afghan citizens in a suicide attack at Hamid Karzai airport in Kabul. In its haste to leave the country, America failed to uphold a key value—protecting one’s own.

America lost control of the timely withdrawal of vulnerable Afghan citizens who had supported its efforts over the years. US government officials provided the Taliban with identifying biometric data and the published names of people who were approved to leave the country. Functionally, America handed these Afghans a death sentence. ISIS-K and the Taliban can vie for which terrorist group can execute these citizens in the future. By abandoning the Afghan people, America failed to uphold an indispensable value—preserving life.

In allowing the Taliban regime to attain power, the US essentially approved the destruction of democratic rule. Did America think that this authoritarian group had reformed its prior extremist ideals? The Taliban’s current sources of income come from sales of illegal drugs and payments from insurgent groups in other countries, such as Pakistan. The rise of corruption and the disappearance of democracy has vanquished our most basic values—justice and freedom.

The Taliban will undoubtedly decimate the education and work of women who by their talents strengthen their families and support the nation economically. Women will become re-oppressed. The Taliban stated publicly that they will evaluate and protect their status. But they demand that women be bound by Sharia, which when strictly adhered to subjugates women. Our key values of human rights and education for all will be lost.

The US leaves behind state-of-the-art military equipment and aircraft, a treasure trove for the inevitable rise of ISIS-K and the re-emergence of al-Qaeda. Irrespective of international monetary norms, to raise additional funds, unused equipment will be sold to other radical groups in the region and beyond, including Hamas and Iran’s radical proxy Hezbollah. Senior Hamas and Taliban officials have already met. Afghanistan will now become a Khyber pass on steroids. Where the goal had been to remove violent fundamentalist regimes from Afghanistan, terrorism will rise up once again and spread its tentacles into the Middle East. Now that the US is out and the Taliban are in, Afghanistan’s neighbor to the east, Iran, is already establishing a sphere of influence.

The demise of Afghanistan’s democracy exposes two underlying weaknesses in America’s strategic approach. First, there is a tendency to view democracy through the lens of western eyes, imposing this model as the best for other nations. Second, a failure to strengthen economic growth and infrastructure for its people undermines the survival of democratic forms of government.

Since 2004, Afghanistan has participated in traditional exercises of democracy. They held elections for President, created a representative bicameral National Assembly, and elevated a civil—not Sharia—Supreme Court. The Afghan National Army, 300,000 strong, lost the will to fight the Taliban without American air support and intelligence. Democracy fell within days of the Taliban takeover and Ashraf Ghani, president since 2014, quickly fled the country. We violated our promise, thereby shattering the values that makes our word inviolable.

Historians know that economic prosperity must be established before democracy can flourish. After World War II, the allied nations assisted Germany and Japan in building long term economic infrastructures which in turn underpinned democratic governments. In 2000, the democracy of the Soviet Union shifted to a more authoritarian form of leadership under Vladimir Putin because the country’s economic infrastructure had failed to support the people’s needs.

Applying the value of economic liberty to Afghanistan, we see that no long-term, self-sustaining plan had ever been established. Economic chaos is virtually assured because Washington has frozen Afghan assets totaling $9.5 billion. At the same time, the IMF and the World Bank have also blocked the Taliban from obtaining funds. The country is also dealing with the COVID pandemic. Banks have run out of cash and inflation is on the rise because of food, goods, and medical supply shortages. As an agricultural society with a large government sector, the nation is both impoverished and dependent on foreign aid. All this assures unwanted economic outcomes. The Taliban will increase criminal activity including the drug trade, sell weapons to the highest bidder, and partner with China, Iran and Russia.

Ironically, the country is sitting on $1 trillion worth of minerals. These include lithium, iron, copper, gold, precious gems, and natural gas. Lithium is one of the most valuable metals in the world today, used in rechargeable batteries for electric cars and alternative energy sources. Any goal established by countries to reduce climate change through reducing carbon emissions cannot be met as there is not enough lithium available to be mined throughout the world—until now. Abandoning our values in Afghanistan has seriously undermined our hope of developing a new source of precious raw materials and creating a post-carbon world in the process.

The US has known about Afghanistan’s trove of natural resources since 2010. But a poor economic platform has created a non-functional national infrastructure, making. these minerals are currently inaccessible. Could the US not have facilitated development in this area, bringing Afghanistan closer to economic self-sufficiency? Economic opportunity combats religious extremism. Could America not have partnered with other nations to help build this country’s infrastructure and wealth, to benefit the Afghan people? This might have strengthened the institution of democracy for the future. But we did not.

Now, the Chinese are poised to fund construction and infrastructure projects, and Beijing will gain access to Afghanistan’s minerals and resources. This is a well-honed Chinese tactic. It does the same with other nations, such as Iran which is desperate to sell its oil. Through China’s Belt and Road Initiative, the Chinese Communist Party will seek to build a connecting highway between Peshawar in Pakistan and Kabul that will integrate western China with Central Asia. Such broad infrastructure development projects in impoverished nations are funded through the Chinese-controlled Asian Infrastructure Investment Bank. No one in Washington thought ahead.

In Afghanistan, we have created a void that will allow fundamentalism, violence, and poverty to grow further in the Islamic world and eventually the greater Middle East. Emerging wealth will go to the militant Taliban, as well as the Chinese, while the freedom-loving people of that nation are left out and forgotten. America’s foreign policy is politically swayed by the expedience of public opinion—not our values. If we measure the end of this war by the values of preservation of life, justice through democracy, and peace from economic trade, America has failed on all counts.

Afghanistan has been lost, mainly because we abandoned our values. The American-Israel relationship is built on shared values—but if the US can so easily abandon theirs, it does not portend well for Israel.

Cultural ethicist Faye Lincoln is author of Values That Shape the World: Ancient Precepts, Modern Concepts (Dialog Press, 2021). She analyzes the values-based implications of US and Middle Eastern policy initiatives based on history, religion, and economics.

The Court Decision That is a Clear and Present Danger to America’s Jews
By Nathan Lewin | 20 Sep 2021

Try painting a swastika on the wall of a synagogue, and you’ll be arrested and charged with vandalism and probably serve jail time for a hate crime. But a federal appellate court has just gone out of its way to grant constitutional protection to signs bellowing “Resist Jewish Power” and “Jewish Power Corrupts” at Jews attending synagogue services every Sabbath morning for the past 18 years in Ann Arbor, Mich. The judges didn’t bother to explain why menacing Jewish Americans coming together to worship is less intimidating than cross—burnings were to church attendees in African—American churches in the South. The Supreme Court said in 2003 (Virginia v. Black) that “cross burning carried out with the intent to intimidate is … proscribable under the First Amendment.” No sane American thinks otherwise today.

A decision rendered by three federal judges on the eve of Yom Kippur should send shivers down the collective spines of the American Jewish community. Since September 2003, a group of Ann Arbor residents has been harassing Jewish attendees at Saturday—morning services in Beth Israel Synagogue, a Conservative congregation, by gathering between 9:30 and 11:30 a.m., and posting 18 to 20 aggressive signs on grass near and opposite the synagogue. The signs challenge “Jewish Power,” and attack Israel as “apartheid” and as responsible for a “Palestinian holocaust.” They demand a boycott of Israel and an end to U.S. aid to Israel. But their timing and location demonstrate that they address Jews coming for religious observance, whether or not they support Israel. It takes only a rudimentary knowledge of history to recall that the Third Reich began a program that murdered millions with similar harangues against the Jewish religion by hostile hordes at the doors of Jewish synagogues.

Beth Israel’s members suffered these meticulously timed taunts and the city’s refusal to prevent them for years, but finally took their tormentors to federal court with a complaint alleging 13 violations of federal law and 10 violations of state law. They encountered a district court judge who, they later alleged, should have been disqualified because she “had pre—determined the outcome of the lawsuit.” The judge brusquely dismissed the congregants’ lawsuit on the ground that they experienced only “intangible injury,” such as “extreme emotional distress.” This harm, she said, was not “concrete” enough to give them “standing” to file a lawsuit in a federal court.

The Jews took their case to the Court of Appeals for the Sixth Circuit. The only issue for appeal was the trial judge’s ruling aborting their claims at birth because they had no “standing.” They also asked that the district judge be disqualified from the case if the appellate court agreed that they had “standing” to pursue their claims. The American Civil Liberties Union entered as an amicus curiae (“friend of the court”) to teach the judges that gathering when the Jews came to worship on Saturday mornings and posting hostile signs while the worshippers were arriving and during their religious services was protected as Free Speech by the First Amendment to the U.S. Constitution.

The three judges assigned to hear the appeal included the Sixth Circuit’s Chief Judge, Jeffrey Sutton, a former law clerk to Justice Antonin Scalia and visiting lecturer at Harvard Law School. Judge Sutton is widely respected among lawyers. He was a frequent oral advocate in the Supreme Court before assuming judicial robes. Among his most successful presentations to the High Court was his winning argument that the Religious Freedom Restoration Act—enacted by an almost unanimous Congress to protect religious liberty—was unconstitutional.

The first seven pages of a 13—page majority opinion written by Sutton and joined by a retired Circuit Judge conclude persuasively that the Jewish congregants have “standing” to pursue their claim. That should have ended the appeal in the congregants’ favor. But rather than sending the case back for a trial before an impartial judge, Sutton proceeds in the last five pages of his opinion to throw out all claims on the ground that “the content and form of the protests demonstrate that they concern public matters: American—Israeli relations.” The Saturday—morning gatherings and the aggressive posters are, in his opinion, “squarely within First Amendment protections of public discourse in public fora” and are shielded by “the robust protections that the First Amendment affords to nonviolent protests on matters of public concern.” He then dispatches the arguments to the contrary with blinding speed.

This is a frightening phenomenon in today’s America. The voracious wolf of rank Jew—hatred is cloaked in the sheep’s fleece of “American—Israeli relations.” Why do Ann Arbor’s anti—Israel zealots find it most meaningful to express their “public discourse in public fora” on Saturday mornings between 9:30 and 11:30 adjacent to a synagogue? Is this truly “public discourse” on “matters of public concern?” Are those who gather for two hours on Saturday mornings really trying to persuade the Jewish congregants with their placards? Or are they harassing and intimidating a religious minority that has suffered centuries of intolerance and hatred?

With all respect to Chief Judge Sutton’s legal acumen, there are solid reasons in federal and Michigan law to sustain the Jewish worshippers’ claim that gatherings and placards designed to harass and intimidate Jewish worshippers are not shielded by the Constitution. Even Sutton acknowledges in his cursory review of the complaint that the claims cannot be called “frivolous.”

Federal law gives the Jewish congregants only until Sept. 29, when Jews around the world will be celebrating Simchat Torah, to file a request with the Sixth Circuit to have the appeal considered anew by the full court of 16 active Circuit Judges (along with the senior judge who agreed with Sutton and is entitled under federal law to sit on a rehearing). Six of the Sixth Circuit’s current judges were appointed by President Donald Trump and four by President George W. Bush. They, along with the court’s only active Jewish judge, may disagree with Sutton’s summary rejection of the plaintiffs’ 23 legal claims. If the appeal is reheard, the court may hear and learn from many more friends of the court than the ACLU, which was the only amicus curiae in the argument before three judges that looked like only a technical legal dispute over “standing.”

William L. Shirer, author of the Rise and Fall of the Third Reich, was the most authoritative eyewitness and reporter of life in Germany in the years leading to the Holocaust. He kept a daily personal journal that was published in 1941 titled Berlin Diary. A telling entry is April 21, 1935, which was Easter Sunday and Passover. Shirer noted that he took the weekend off, and he reported, “The hotel mainly filled with Jews and we are a little surprised to see so many of them still prospering and apparently unafraid. I think they are unduly optimistic.”

How right he was. Less than five months later, the Nazis formally codified Jew—hatred with the Nuremberg Laws, which deprived Germany’s Jews of citizenship and all basic human rights.

Action is needed now if we learn the lesson of history. The late Todd Beamer said it in a heroic effort on the hijacked Flight 93 to avert another 9/11 tragedy, “OK. Let’s roll.”

Nathan Lewin is a criminal defense attorney with a Supreme Court practice who has taught at Georgetown, Harvard, University of Chicago, George Washington and Columbia law schools.

Biden Must Stop ISIS from Finishing Genocide of Assyrians and Yazidis
By Abraham Cooper, Juliana Taimoorazy, and Hadi Pir | 30 Aug 2021

America’s precipitous withdrawal from Afghanistan spawned a new humanitarian crisis. As the Taliban rebrands the country they captured with nary a fight—the Islamic Emirate of Afghanistan—desperate people are trying to flee, even to neighboring countries already struggling with their own crises. Afghan parents fear for their daughters, suddenly degraded as war bounty for Taliban fighters. Those who cooperated with the United States over the past two decades are already being hunted down and hung. Religious minorities know they will have no rights for religious expression in the new Islamic Emirate.These painful events evoke nightmarish memories of all that transpired in Iraq when in 2011 the .S decided to withdraw its military. Three years later it rushed back to combat the most dangerous terrorist organization in the world—the Islamic State of Iraq and Syria, also known as ISIS or DAESH. What transpired devastated innocent minorities.Iraq is the ancestral land of two Indigenous peoples: the Yazidis and Iraq’s Christians, the Assyrians. These two groups lived peacefully for most of their history in the land between the Tigris and Euphrates rivers. That peace and their futures were ripped asunder by the conquering ISIS “caliphate.”

ISIS’s genocide of Yazidis and Assyrians accelerated the near eradication of Iraq’s Christian communities. Christians numbered an estimated 1.5 million before 2003. Now about 150,000 remain in the country. Murder, rape, kidnapping, and wholesale destruction of homes, schools, hospitals, houses of worship, and basic modern infrastructure has brought them to the edge of total annihilation.

Today, some have returned to try to reclaim their lives by rebuilding their cities and towns. Still, there is no erasing traumatic memories of beheadings, stabbings, and rape that haunt the Assyrian people. Many others, who have fled the country with the hope of reaching a western democracy, still live in abject conditions in Turkey, Lebanon, and Jordan.

Since 2014, more than 150,000 Yazidis have fled Iraq. As of today, there are more than 2,700 Yazidis, mostly women and children, still missing; and only 30 percent of Yazidis have returned to their homes. Many others who returned to the Sinjar region still languish in refugee camps. Without question, minorities’ areas in Iraq’s Sinjar and the Nineveh Plains would be among the first targets of a resurgent ISIS or other terror group.

An ISIS comeback is a real possibility. There have been isolated ISIS activities in Iraq since 2019. In recent months, ISIS has become more organized, with attacks on checkpoints, kidnappings. and assassinations on the rise.

Given the past cooperation of the Taliban and Al-Qaeda (out of which ISIS grew), the fall of Afghanistan has been sparked with fear and dread of more butchery on the horizon—attacks that neither Assyrians nor Yazidis can repel.

During his address to the nation after the fall of Kabul, President Joe Biden declared that he will maintain a laser focus on the activities of these terrorist groups and take swift and effective action against them, wherever they may operate in the Middle East or Africa. However, during a recent meeting in the Oval Office, President Biden informed Iraqi Prime Minister Mustafa Al-Kadhimi that the US would not launch combat missions by the end of this year noting that, “Our role in Iraq will be … to be available, to continue to train, to assist, to help, and to deal with ISIS as it arises.”

Those of us who have been working on the frontlines witnessing the suffering of the victims of the earlier ISIS genocide are deeply worried. If the US watched as the Taliban took over Afghanistan in under a week, can our devastated communities trust President Biden that the US and her allies will protect our remnants?

One Assyrian man named Stefan, who courageously returned to his town of Qaraqosh to try rebuild his shattered life, put it bluntly, “One more attack [against our people] and it will be the end of us in this country. We cannot afford losing US presence from Iraq.”

After the fall of Kabul, we understand the priorities of US policymakers—US national security and regional stability. But now that Afghanistan has fallen and is being led by a power that once worked with Al-Qaeda, and that counts Iran and China among its supporters, it has become even more critical for the US to keep its military presence in Iraq, to protect endangered peoples.

For Iraq’s Christians and Yazidis, the choices now being mulled over in the Pentagon, the State Department, and the Oval Office are nothing less than life or death. We hope and pray that President Biden will make the right decisions and not throw Iraq—especially Assyrians and Yazidis—to the wolves.

Rabbi Abraham Cooper is associate dean and director of global social action at the Simon Wiesenthal Center.
Juliana Taimroozay is founder and president of Iraqi Christian Relief Council.
Hadi Pir is vice president of the Yazda Organization.