Rami G. Khouri

One of the great battles that has been taking place within the United States in recent years has seen two separate issues meshed into a single confrontation. One is the powers of the Congress versus those of the president in foreign policy decisions. The second is whether the United States should stand squarely behind Israel in the Palestinian-Israeli conflict or play the role of an impartial mediator seeking peace based on international law that meets the security interests of both sides. 

Other new dimensions to this multifaceted tug-of-war have also materialized in recent years. One is the use of American courts as a venue in which to wage new battles in this long-running war. Cases now before federal district and appeals courts include accusations by pro-Israeli groups and families that the Palestinian Authority and the Arab Bank are liable for having aided Hamas and other “terrorists” whose acts resulted in the deaths of Americans who also hold Israeli nationality. 

Another is the use of American trade and commerce laws to punish European countries whose governments institute regulations that distinguish between exports from Israel within its 1967 border and from those produced in settlements built on occupied Palestinian land. The aim of such regulations is to discourage or prohibit exports that exploit occupied Arab lands and resources – as international law requires. 

A third is the growing controversy over events about Israel-Palestine on American university campuses. This includes attempts to divest from university investments in companies benefiting from the Israeli occupation, prohibit public events critical of the Israeli occupation and moves to fire or not hire professors who criticize Israeli actions (such as the war on Gaza last year) in their private lives via social media, for example.

These and other confrontations see pro-Israel and pro-Palestine forces waging intense battles inside American institutions that, otherwise, do not engage in foreign policy through their normal functions. Most Americans do not follow these developments, and have few if any strong feelings about the issues raised. Polling evidence for many years suggests that the American public clearly supports the security of Israel, but also wants to remain as even-handed as possible in the Palestine-Israeli conflict and wants to uphold the rule of law and U.N. resolutions. 

So it was fascinating Monday to hear the United States Supreme Court’s decision in response to a lawsuit by an American-Israeli couple. The couple wanted the U.S. State Department to issue a passport to their son, who was born in Jerusalem, that named his place of birth as Israel. The American Congress had passed a law in 2002 during the George W. Bush presidency making this option available to those Americans who requested it. The Supreme Court rejected the law and the lawsuit by a 6-3 vote, saying that foreign policy issues such as United States’ view of the status of Jerusalem must be decided by the president, and not Congress. 

The majority ruling noted that the nation must speak with a single voice on foreign policy issues and on which foreign governments the U.S. views as legitimate or not, and “that voice must be the president’s.”

This is significant beyond the narrow issue of what is written on a child’s passport, because the balance of power between the president and Congress has emerged recently as a major issue in relations between the government of Israel and pro-Israeli American forces seeking to orient American foreign policy heavily, if not totally, in line with Israeli priorities. Examples of this were the speech by Israeli Prime Minister Benjamin Netanyahu before Congress earlier this spring in an attempt to scuttle President Barack Obama’s nuclear negotiations with Iran, and the 100-0 vote in the U.S. Senate last year to fully support Israel’s actions during the Gaza war.

The legislation on passports was another move by pro-Israel forces in Congress to use American law and unilateral political decisions to determine the outcome of issues being negotiated between Israel and Palestine, such as the status of Jerusalem. The Obama administration’s lawyers argued before the court that it has been the executive branch’s policy since the 1950s “to recognize no state as having sovereignty over Jerusalem, leaving the issue to be decided by negotiation between the parties to the Arab-Israeli dispute.”

The Supreme Court is the highest judicial authority in the American land, and its decision could prove consequential in the months and years ahead, as the political battle between Israelis and Palestinians continues to find its way into American courts. Its decision seems to support the view held by recent presidents that international law that underpins bilateral negotiations is the way to define the status of Jerusalem.