United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2013 Decided July 23, 2013

No. 07-5347

MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS AND GUARDIANS ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY,

APPELLANT

v.

SECRETARY OF STATE,

APPELLEE

Appeal from the United States District Court for the District of Columbia (No. 03cv01921)

Nathan Lewin argued the cause for the appellant. Alyza D. Lewin was on brief.

Robert G. Kidwell was on brief for amici curiae Anti-Defamation League et al. in support of the appellant.

David I. Schoen was on brief for amicus curiae Zionist Organization of America in support of the appellant.

Paul Kujawsky was on brief for amicus curiae American Association of Jewish Lawyers and Jurists in support of the

appellant.

2

Gregory E. Ostfeld, Elliot H. Scherker and Marc Stern were on brief for amicus curiae American Jewish Committee

in support of the appellant.

Theodore B. Olson was on brief for amici curiae Members of United States Senate et al. in support of the appellant.

Dana Kaersvang, Attorney, United States Department of Justice, argued the cause for the appellee. Stuart F. Delery,

Acting Assistant Attorney General, Ronald C. Machen, Jr., United States Attorney, and Harold Hongju Koh, Legal

Adviser, United States Department of State, were on brief.

Lewis Yelin and Douglas N. Letter, Attorneys, United States Department of Justice, and R. Craig Lawrence, Assistant United States Attorney, entered appearances.

Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge TATEL. KAREN LECRAFT HENDERSON, Circuit Judge:

Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, 116 Stat. 1350, requires the Secretary (Secretary) of the United States Department of State (State Department) to record “Israel” as the place of birth on the passport of a United States citizen born in Jerusalem if the citizen or his guardian so requests. Id. § 214(d), 116 Stat. at 1366. The Secretary has not enforced the provision, believing that it impermissibly intrudes on the President’s exclusive authority under the United States Constitution to decide whether and on what terms to recognize foreign nations. We agree and therefore hold that section 214(d) is unconstitutional.

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By Daoud Kuttab

A well-known American bureau chief in Israel of a major US newspaper always prided himself with knowing the key to getting Israel to politically move in the peace process. You must use invisible hands to hurt them, he told me shortly after the first intifada broke out. The Israelis must feel the pain without being able to clearly identify or expose the source of the pain, he said.

A look at the workings of the Obama administration in the last few weeks clearly points to the fact that they seem to have adopted this advice. Speaking during her confirmation hearing at the US Congress, the next US ambassador to the UN Samantha Powers, reversed a statement she had made years earlier. In 2002, Power proposed imposing a peace deal on Israelis and Palestinians militarily, even if such a policy alienated wealthy pro-Israel American Jews. Power totally recanted her statement. “I gave a long, rambling and remarkably incoherent response to a hypothetical question that I should never have answered,” she said. Continue Reading »

By Daoud Kuttab

The unexpected and serious deterioration of the health of Teresa Heinz Kerry may delay or cancel a reportedly record sixth visit by America’s top diplomat to the Middle East. But if and when US Secretary of State John Kerry does make it to the region, he will find it even more troubling than it was when he left just a couple of weeks ago.

The events in Egypt have been unfolding dramatically amid the total absence of any real role for the world’s most powerful country. In fact, in an unusual reversal, US officials, including President Barack Obama, are accused of being more supportive of the Muslim Brotherhood than the democratic and liberal elements in Egypt.

If and when Kerry does return to the region, it would be with the continued hope of restarting direct Palestinian-Israeli peace talks. The talks have been stuck for years because of Israel’s insistence not to stop or suspend its settlement activities in the occupied Palestinian territories. Palestinian leaders are also refusing to return to the talks until the Israelis accept the concept of the two-state solution based roughly on the 1967 borders as the basis for negotiations. The Netanyahu administration is on the record as agreeing to the two-state solution provided that such a state is unarmed, and that Palestinians publicly recognize Israel as the homeland of the Jewish people. Continue Reading »

By Daoud Kuttab

Eighty-five years after its establishment and only one year after one of its followers was elected the president of Egypt, the Muslim Brotherhood is experiencing an unprecedented nakba (catastrophe), whose effects are being felt throughout the region.

The Muslim Brotherhood was founded as a Sunni Islamist religious, political and social movement in Ismailia, Egypt, by Hassan al-Banna in March 1928. It has survived government crackdowns and imprisonment, and it succeeded in gaining power in Egypt in large due to the splintering of the votes between various secular leaders vying for the post-January 25 revolution presidency.

The Brotherhood’s credo was and is, “Allah is our objective; the Quran is our law, the Prophet is our leader; Jihad is our way; and death for the sake of Allah is the highest of our aspirations.” Before gaining power in Egypt, its most prominent success was in Palestine with the electoral victory of the pro-Muslim Brotherhood Hamas movement in 2006. Although the Brotherhood’s history does not reflect using military and violent means to reach power, its Hamas affiliate did. And even though religious Muslims usually consider suicide to be haram (forbidden), the Brotherhood’s leading religious advocate Yusuf al-Qaradawi did sanction Palestinian suicide acts against Israelis. Qaradawi based his support on the premise that Israelis were not civilians but rather combatants in a war of occupation waged against the Palestinians.  Continue Reading »

By Daoud Kuttab

Hamas stands to be the major loser in the latest popular revolt in Egypt, which pits millions of Egyptians against now deposed President Mohammed Morsi and the Muslim Brotherhood.

The Islamic Resistance Movement, known for its Arabic acronym Hamas, a year ago welcomed Morsi’s election. Both Hamas and Morsi ideologically belong to the same Islamist movement, the Muslim Brotherhood, although there is no organizational link between the two groups. In fact, contrary to conventional thinking, Hamas and the Morsi administration have had a rocky relationship despite their ideological closeness. Many Egyptians accuse Hamas of responsibility for the killing of 16 of its soldiers in August 2012 near the Gaza-Egypt border. Egypt’s government-controlled al-Ahramobserved as late as April that Egyptian support for Hamas was declining.

Reports that some 7,000 Hamas militants were in Egypt to support the Brotherhood circulated in the media despite persistent denials by Egyptian as well as Hamas spokesmen. Like Hezbollah, Hamas is accused in Egyptian courts of engineering the jailbreak of several senior Muslim Brotherhood leaders, including Morsi, in 2011. Continue Reading »

By Daoud Kuttab

I thought I would use my column, which appears on US Independence Day, to celebrate one of America’s most valued contribution to the world: the First Amendment.

Here is the exact text of the amendment adopted in 1791 as part of 10 amendments that make up the US Bill of Rights: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

At a time when religion is clearly the biggest obstacle to progress in the Arab world, it would be great to have a First Amendment-like clause in all Arab constitutions.

The failed first year of Muslim Brotherhood presidency in Egypt, the failure of Hamas Islamists in Gaza and the sectarianism rocking Syria, Iraq and Bahrain, to name a few Arab countries, are enough to make one dream of a governance structure in the Arab world that is not based on or involves religion or takes sides in a religious sectarian conflict.

The First Amendment of the US Constitution is also a great source of inspiration and support for freedom of expression, freedom of the press and the right of people to hold peaceful protests.

Denying the legislature the chance to pass media-restrictive laws would go a long way in planting permanently the seeds of the right to freedom guaranteed in the 19th article of the Universal Declaration of Human Rights, which states that everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers”. Continue Reading »

By Daoud Kuttab

US Secretary of State John Kerry is clocking more hours than most US diplomats in trying to bring the Palestinian and Israeli leaders back to the negotiating table. All sides confirm that progress is being made and gaps are being tightened, but little information on the details of these talks is known. For a rare change, the term “secret negotiations” is not necessarily a bad phrase.

Recent Middle East history has shown that whenever negotiations have kept a tight lip, they were serious about finding a way forward. Conventional wisdom in this part of the world is that whenever the parties are rushing to the media, you can be sure, they are not serious.

But despite this silence, some statements were made and reactions to daily events were avoided, and both are also reflective of the seriousness of the parties.

Israeli leaders including Prime Minister Benjamin Netanyahu and President Shimon Peres have been stressing that Israel doesn’t want to become a bi-national country. Such statements are a clear indication of support for the two-state solution, and it aims at preparing the Israeli public for that eventuality. Continue Reading »

the following appeared in Jordan Times

By Daoud Kuttab

The conference we were invited to was important. Called for by the Gaza Centre for Press Freedoms, the event was aimed at addressing and developing the local Palestinian media in Gaza.

I was invited as part of an international media support delegation and all appropriate permits were secured. The Palestinian government in Gaza issued everyone individual visas with their photos and passport number, the Egyptian authorities were notified and the necessary coordination was established.

The Egyptians were informed that a nine-person delegation that included individuals with British, Danish, American, and Croatian passports would be entering Gaza via Rafah.

Because Israel destroyed (physically) the Gaza International Airport that had been opened with a visit by US president Bill Clinton shortly after the beginning of the second Intifada, other routes had to be found. The most convenient way to get to Rafah is through the city of Al Arish, often described as the capital of Sinai. But because the only days Palestine Airlines flies in from Amman did not concur with our conference days, we had to drive in from Cairo. Continue Reading »

By Daoud Kuttab

Palestinian music sensation Mohammed Assaf is unlikely to appear in any location in Jerusalem, but the winner of the second season of “Arab Idol” is certainly present in East Jerusalem. Since Assaf’s win, the cobbled streets of the old city have been rocking with his voice, as his flagship song “Alii al-Kofia Alii” and others are played over and over by music stores, as well as cafes, tourist shops and grocery stores. Assaf’s handsome Gazan face enamored storefront windows throughout Salah Eddin Street, the city’s main business thoroughfare.

The success of this Palestinian refugee didn’t come easy, which made his victory that much more meaningful. Assaf’s story of how he arrived late in Cairo for the audition and how he had to climb the walls of the hotel where the audition was taking place to make the line-up, only to find he didn’t have the needed participant registration card. His mother’s role in encouraging him, and the generosity of a fellow Palestinian contestant who heard his impromptu singing and gave Assaf his registration card, has become part of the Palestinian lore repeated and added to by the public. Continue Reading »

By Daoud Kuttab

A rather underreported issue about the way Palestinians are treated is emerging. Countries that control borders through which Palestinians need to travel act as though they were the guardians for what they deem best for Palestinians. Four different bodies today are using their powers to limit the movement of people and goods from and to various Palestinian territories. Ironically, the Ramallah-based Palestinian government is not one of them.

While travel restrictions refer to both entry and exit, what is strange is that these four powers use this control to prevent people from exiting without actually accusing them of anything. Such arbitrary decisions are often made under the pretext of being in the best interest of the people that they are restricting. When it comes to freedom of travel, the four key groups who have appointed themselves the guardians for Palestinians are the Hamas government, Egypt, Jordan and Israel. Continue Reading »