Middle East Historical Documents -Jerusalem: Provisions of Foreign Relations Authorization act of 2003 HR 1646

Jerusalem: Provisions of Foreign Relations Authorization act of 2003 HR 1646
October 1, 2002

Under the UN Partition Plan of 1947 (UN Security Council Resolution 181), the Jerusalem area was to be administered under international sovereignty. This provision was not honored by either the Arabs or the Israelis. Jordan conquered East Jerusalem in May of 1948, and expelled the Jewish community that had lived in the Jewish quarter for hundreds of years.

Israel took steps to establish West Jerusalem as its official capital, erecting the Knesset and other government buildings there, but until 1967, most government business was transacted in Tel Aviv. Following the conquest of Jerusalem by Israel in the 6 day war, Israel declared officially annexed the eastern part of the city, and requested recognition for Jerusalem as the capital city. Most governments continue to maintain their embassies in Tel Aviv, in deference to Arab claims over Jerusalem. Hostile Arab governments refer to "the Tel-Aviv government."

The USA has maintained its embassy in Tel Aviv and has not recognized any part of Jerusalem as a part of the Israel. For example, Americans who are born anywhere in Jerusalem cannot register their country of birth as Israel. US Jewish groups and Christian sympathizers have lobbied the government to change this policy, resulting in two acts of congress that have had no practical effect. President Bush maintains that these acts are advisory only, inasmuch as the executive branch, and not congress, determines policy. A previous act of Congress, enacted in 1995, called for removal of the Embassy in Tel-Aviv to Jerusalem, an act that would be tantamount to US recognition of Jerusalem as the capital of Israel. That act also referred to united Jerusalem, which would be a denial of Arab claims in Jerusalem. In practice, the act was ignored. Presidents Clinton and Bush routinely issued waivers every 6 months, as permitted by the bill, stating that moving of the embassy was not currently in the best interests of the United States.

In 2002, Congress passed HR 1646, the Foreign Relations Authorization Act, Fiscal Year 2003, and President Bush signed it into law. Section 214 again makes specific provisions regarding Jerusalem, but in this case there is no waiver.

The act caused a storm of protest in Arab capitals, and President Bush and the State Department issued statements indicating that they will ignore the act and consider it "advisory" claiming that it interfered with his ability to conduct foreign policy as directed by the US constitution. These statements are appended below.

The constitution provides for separation of powers between the executive and legislative branches. The Executive branch sets policy, but all funding allocations are in the hands of congress. Thus, the President is commander in chief of the armed forces, for example, but cannot spend money except as allocated by congress.

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SEC. 214. UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL.

(a) CONGRESSIONAL STATEMENT OF POLICY- The Congress maintains its commitment to relocating the United States Embassy in Israel to Jerusalem and urges the President, pursuant to the Jerusalem Embassy Act of 1995 (Public Law 104-45; 109 Stat. 398), to immediately begin the process of relocating the United States Embassy in Israel to Jerusalem.

(b) LIMITATION ON USE OF FUNDS FOR CONSULATE IN JERUSALEM- None of the funds authorized to be appropriated by this Act may be expended for the operation of a United States consulate or diplomatic facility in Jerusalem unless such consulate or diplomatic facility is under the supervision of the United States Ambassador to Israel.

(c) LIMITATION ON USE OF FUNDS FOR PUBLICATIONS- None of the funds authorized to be appropriated by this Act may be available for the publication of any official government document which lists countries and their capital cities unless the publication identifies Jerusalem as the capital of Israel.

(d) RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES- For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel.

Statements by President Bush and by the State Department Regarding The Foreign Relations Authorization Act of 2003

Bush Says U.S. Policy on Jerusalem Has Not Changed

President’s Statement on Foreign Relations Authorization Act, Fiscal Year 2003

President Bush on September 30 signed the Foreign Relations Authorization Act for fiscal year 2003, and then issued a statement in which he said the act contained provisions that "impermissibly interfere with the constitutional functions of the presidency in foreign affairs, including provisions that purport to establish foreign policy that are of significant concern."

Noting that the section calling for U.S. recognition of Jerusalem as Israel’s capital interferes with his constitutional authority, the President said he would consider such provisions to be "advisory," rather than "mandatory."

"U.S. policy on Jerusalem has not changed," the President said.

U.S. policy regards Jerusalem as a permanent status issue, which must be negotiated by the Israelis and Palestinians.

Following is the excerpt on Jerusalem from President Bush’s September 30 statement.

(begin excerpt)

I have today signed into law H.R. 1646, the "Foreign Relations Authorization Act, Fiscal Year 2003." This Act authorizes appropriations, and provides important new authorities, for diplomatic and related activities of the U.S. Government. Many provisions in the Act will strengthen our ability to advance American interests around the globe, including nonproliferation of weapons of mass destruction, and to meet our international commitments, including those to the United Nations. Regrettably, the Act contains a number of provisions that impermissibly interfere with the constitutional functions of the presidency in foreign affairs, including provisions that purport to establish foreign policy that are of significant concern.

. . . .

Section 214, concerning Jerusalem, impermissibly interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed.

(end excerpt)
Source: http://usinfo.state.gov/regional/nea/summit/text/1001bhjes.htm

The status of Jerusalem is a matter to be negotiated by the Israelis and the Palestinians, State Department spokesman Richard Boucher said in response to a question about new U.S. legislation calling for recognition of Jerusalem as Israel's capital.

The question at a September 30 briefing in Washington referred to the Foreign Relations Authorization Act for Fiscal Year 2003. "Our view on Jerusalem has not changed," Boucher said. "Jerusalem is a permanent status issue that must be negotiated between the two parties."

Boucher added, "We have always opposed legislative action that hinders the President’s prerogatives on advancing our interests in the region and promoting a just and lasting peace. And our view of Jerusalem has always been that it is a permanent status issue that needs to be part of a negotiated peace."

The Jerusalem provision, calling for the U.S. to recognize Jerusalem as Israel’s "undivided and eternal capital," appeared in the "Foreign Relations Authorization Act, Fiscal Year 2003" that was passed by Congress in April, and signed by President Bush on September 30. In a statement issued on September 30, the President said that he had signed the act, but that "the Act contains a number of provisions that impermissibly interfere with the constitutional functions of the presidency in foreign affairs, including provisions that establish foreign policy that are of significant concern."

President Bush’s singled out the act’s provisions on Jerusalem as just such impermissible interference, noting "U.S. policy regarding Jerusalem has not changed," and that the administration would regard such provisions as advisory, rather than mandatory.

Following are excerpts of State Department spokesman Boucher’s statements related to Jerusalem.

(begin excerpt)

QUESTION: I'm sure you've seen the Jerusalem provisions in the Foreign Relations Authorization Act passed by Congress last April. What does -- first of all, are you willing to go along with these? And if so, how are we going to reconcile this with current policy?

MR. BOUCHER: In terms of the specific legislation, I think the State Department authorization -- I believe it needs to be signed or not by the President today, as the last day of the fiscal year. So you'd have to ask the White House about that, what the President intends to do, and what they might say at the time.

QUESTION: Well, will it happen?

MR. BOUCHER: I'm not going to speculate on that.

QUESTION: No, but I mean just in terms of -- if you said it had to be signed by today because it's the last day of the fiscal year, what happens if it's not signed?

MR. BOUCHER: I take it it doesn't go into effect. I'm not, frankly, sure. I'd have to go re-read my ninth grade civics book to figure that one out. But this is on the agenda right now. The White House is considering the legislation and what to do with it, how to handle it, including the provisions on Jerusalem that we're aware of. And we're discussing with them and other agencies how those could be handled, but I'd leave it to the White House to make any final announcements on the legislation and what they intend to do about it.

I would say that our view on Jerusalem has not changed. Jerusalem is a permanent status issue that must be negotiated between the parties.

QUESTION: -- Richard, that you don't think that this language is a good idea?

MR. BOUCHER: We have always opposed legislative action that hinders the President's prerogatives on advancing our interests in the region and promoting a just and lasting peace. And our view of Jerusalem has always been that it is a permanent status issue that needs to be part of a negotiated peace.

QUESTION: But these things are kind of -- they're kind of technical in nature. But you believe that these provisions do harm the President's
ability to --

MR. BOUCHER: I'd leave it for the White House to give a final analysis of these provisions.

QUESTION: Glenn Kessler in The Washington Post on Saturday reported that there were -- he quoted aides in Congress saying that it was the view of the administration to treat this as a sense of the Congress resolution, which means it would just be simply the advice of Congress, but it would be something that you wouldn't necessarily have to enforce. Is that the view of the State Department?

MR. BOUCHER: I would leave it to the White House to give the view of the administration on this legislation --

QUESTION: Okay, fair enough.

MR. BOUCHER: -- since the White House currently has the legislation. And they will decide how to -- they will announce how we intend to handle it.

QUESTION: He also reported in that article that senior State Department officials had said that they were not approached when this language was being crafted. And usually there's a lot of back-and-forth between the Hill and the State Department on something like this. Is that -- can you comment on that?

MR. BOUCHER: There were a variety of provisions in this bill, I think some of which have been there from the beginning. And the State Department made consistently clear that it was opposed to those provisions. We also have made consistently clear to everybody on the Hill that we oppose legislation that hinders the President's ability to advance our interests in pursuing a negotiated settlement.

(end excerpt)