Presidents find favor in the Waiver; we share the blame

Though "If I forget thee, O Jerusalem..." has become a near-ubiquitous reference point for discussions about the Israeli capital, there is another Psalm that rings poignant with an upcoming ignominious anniversary.

"Behold, your foes are in an uproar, and those who hate you have raised their head," warns Psalm 83. "They said, 'Come, let us cut them off from nationhood, so that the name of Israel will not be remembered any longer'."

May 31 should be the ninth anniversary of the opening of the United States Embassy in Jerusalem; instead, it will mark the ninth anniversary of nothingness carefully constructed, lies carefully crafted, and failures shamefully abetted.

It will mark nine years since Senators Bob Dole, Jon Kyl, and Joseph Lieberman saw insulting proof that they had overestimated Jewish support for recognition of Jerusalem's Israeli sovereignty.

The Psalm quoted above does not mention Jerusalem, but rather "nationhood," and we should never hesitate to equate the two. Because on Passover, we do not say "next year in Tel Aviv"; after the '67 war, we did not sing "Ramat Gan of gold"; we do not celebrate Yom Herzliya Pituach.

We should revere every Israeli city as hallowed ground. But Jerusalem, whether under Israeli sovereignty or not, should be treated as the beating heart among the organs of Jewish unity.

The Jerusalem Embassy Act of 1995, sponsored by Dole and passed overwhelmingly in both houses of Congress, states, among other provisions, that Jerusalem is the "capital of the State of Israel" and "the spiritual center of Judaism". It also declared that by mid-1999, the relocation of the U.S. embassy to Jerusalem from Tel Aviv should be complete.

After the BBC last year apologized for calling Jerusalem Israel's capital, I asked Alan Dershowitz if there were some provision in international law regulating a state's designation of its capital that perhaps I didn't know about.

Dershowitz smiled at the absurdity that news outlets like the BBC required my question to be anything other than rhetorical. He told me that any nation may set its own capital, and to deny such basic rights to Israel was the uncivil union of hypocrisy and anti-Zionism.

So, if Jerusalem is Israel's capital, and the Embassy Act states that "Each sovereign nation, under international law and custom, may designate its own capital", then what's the problem? It's the escape clause, called the Presidential Waiver, which states that the president may suspend the action for six months if he believes it will "protect the national security interests of the United States."

Former President Bill Clinton and current President George Bush have both used the waiver every six months. Clinton, having promised to review the situation after Camp David, presumably put his intention to move the embassy in the same pile as his promise to commute Jonathan Pollard's sentence. Bush's hands-off approach to the peace process, often for the better, unfortunately seems to include keeping his hands off the embassy.

But to blame only Clinton and Bush would be a mistake. The Israeli government has routinely undermined efforts to move the embassy, afraid it will upset their Palestinian negotiating partners. In 1995, then-Communications Minister Shulamit Aloni told the New York Times that American congressional support for moving the embassy to Jerusalem "has a smell of provocation." Charming.

The powerhouse American Israel Public Affairs Committee (AIPAC) admitted that it officially opposed such a bill, but once the bill was drafted and voted on, former AIPAC head Neal Sher said AIPAC was "boxed-in" and forced to support it. At the time of the bill's floor vote, the Conference of Presidents of Major American Jewish Organizations did not take a position on the bill, and refused to endorse an earlier version of it. The Zionist Organization of America (ZOA) took a strong stance supporting the bill, but its pleas failed to inspire even an echo.

The Times picked up on that lead and ran with it; Times columnist Thomas Friedman accused Kyl and Lieberman of "exploit[ing] the issue for Jewish votes."

Other news organizations carried that mantle. CNN, in its news story about Bush promising to move the embassy in 2000, explained snidely that "Jerusalem is claimed as its new capital by Israel". Washington Post columnist Richard "Israel itself is a mistake" Cohen wrote that moving the embassy would only "win points wherever Dole gathers campaign funds" since Jerusalem's "political status is disputed" -- though the embassy would be in undisputedly Israeli west Jerusalem.

"Tel Aviv is charmless. For the time being, though, it will have to do," Cohen declared.

One ally in the media was Times columnist William Safire. Safire had no patience for the "national security" waiver, since, as he wrote in July 1996, Clinton had presented no national security threat. Instead, Clinton's spokesman stated that the waiver was being exercised "to ensure that no steps are taken that could be interpreted as pre-empting the negotiating process."

Safire fired back that such an "excuse for delay is nowhere in the law". For that matter, Safire said, the substance of the argument was based on a false premise anyway -- that peace negotiations would be upset. He quoted Lieberman as pointing out that in any final status agreement, part of Jerusalem would be Israeli.

"Our site would be on Israeli land," Lieberman said, infusing the discussion with a refreshing dose of logic and fair play. "Let peace negotiations proceed and let the U.S. law be carried out."

Lieberman wasn't alone. A year earlier, then-Speaker of the House Newt Gingrich marveled at the opposition to what he thought was patently obvious.

"I think it is absurd for us to single out Israel as a country where we define what we think the capital should be," Gingrich told Israeli media in 1995.

Thus, the desire to move the embassy was bi-partisan -- even at the N.Y. Times! So what held it up? Safire pulled no punches.

"In Jerusalem's 3,000th year, Israel's new Government is eager for America's acknowledgment of its capital," Safire wrote in 1996. "Plain justice and the new realism demand it. The last obstacle is Mr. Clinton's reluctance to obey the law."

And that reluctance to obey the law has been passed down. It, too, has become bi-partisan, and a tradition in the Oval Office.

But maybe it really was a national security issue. The vehemently anti-Israel Middle East International warned of, in an editorial during the 1984 Reagan-Mondale election campaign, what amounted to thinly veiled threats of retaliation in the Arab world should the embassy be moved to Jerusalem.

"The reaction to the move in Muslim countries would be catastrophic," the editors wrote. "It is easy to imagine the attacks on American embassies, the rupture of diplomatic relations, and all the rest that would follow."

"All the rest" is a diplomatic way of putting it, but I think the message gets through.

The editors did, however, manage to stumble upon what unfortunately has been confirmed in the almost-quarter century since.

"Supporting the move to Jerusalem," the editors wrote, "is one of those easy gestures, "like being in favor of a united Ireland, or approving of motherhood and disapproving of sin, which cost the maker of them nothing."

In 1995, Senator John McCain co-sponsored the bill, and during her 2000 Senate run Hillary Clinton said she supported moving the embassy ASAP. When I asked McCain's campaign what his official position is on the issue, a spokeswoman reiterated that McCain co-sponsored and voted for the original legislation. McCain was in Jerusalem in March of this year and stated unequivocally that it is Israel's capital; would he commit to moving the embassy there? His campaign wouldn't get that specific with me.

A Clinton staffer, before setting off on the hunt for the campaign's official stance, told me she had just been to Jerusalem less than a year ago and remembered visiting the U.S. Consulate General there -- a reminder that there is at least some form of official recognition in the holy city. Senator Barack Obama has yet to respond to my query in any form.

So, is that it for moving the embassy? Will politicians no longer be cavalier about tossing out that promise?

They may not feel they need to make the promise anymore, and that's probably a good thing. But what about us? Can we so easily be absolved of our role in letting the issue fade?

Lieberman once exclaimed that, if need be, he and former Senate Majority Leader Trent Lott would move the embassy to Jerusalem "ourselves, brick by brick!" Yet, when the mouthpieces of the American Jewish community picked up their shovels, it was to facilitate the issue's burial.

After a nearly 2,000-year struggle to reclaim it, Jerusalem shouldn't be taken so lightly. And on May 31, it shouldn't be forgotten.

(Originally published in the May 23, 2008 edition of The Jewish State.)