Jerusalem Consulate Means Jerusalem Is Not in Israel

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.

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.
Alyza D. Lewin is President of the Louis D. Brandeis Center for Human Rights Under Law. She is also a co-founder and partner in Lewin & Lewin, LLP where she has specialized in litigation, mediation, and government relations.