Justices take Israel passport case

Suit involves law linking Jerusalem to the Jewish state

WASHINGTON - The Supreme Court on Monday agreed to decide whether Congress has the ability to require the State Department to treat Jerusalem as the capital of Israel in U.S. passports, in a case that touches on generations of conflict in the Middle East, as well as the dueling roles of Congress and the president in the conduct of foreign affairs.

The case was brought by the parents of Menachem Zivotofsky, who was born in Jerusalem in 2002, not long after Congress enacted a law ordering the State Department to “record the place of birth as Israel” in passports of American children born in that city if their parents asked. President George W.Bush signed the law but said he would not follow it because it “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs.”

President Barack Obama’s administration takes the same view. In a brief, the administration told the justices that the status of Jerusalem should be resolved by negotiations between Arabs and Israelis.

The case, Zivotofsky v. Kerry, No. 13-628, has been before the justices once before, on a preliminary issue. In 2012, the Supreme Court ruled that the case did not involve a “political question” beyond the federal courts’ power to decide, and it instructed the U.S. Court of Appeals for the District of Columbia Circuit to do so.

In July, the appeals court ruled for the executive branch, saying the passport requirement impermissibly intruded on what it said was the president’s exclusive power to recognize foreign governments.

Also on Monday, the court declined to review a case concerning a prisoner held at Guantanamo Bay, Cuba.

The case, Hussain v. Obama, No. 13-638, was brought by Abdul al-Qader Ahmed Hussain, a citizen of Yemen captured in Pakistan in 2002.

The government said he was affiliated with al-Qaida or the Taliban.

Hussain said the evidence against him was based on his travels, his visits to mosques and the fact that Taliban guards he stayed with gave him a gun.

There is no evidence, he said, that he ever used the gun or otherwise supported enemy forces.

The District of Columbia appeals court ruled the evidence sufficient.

In urging the justices to hear his case, Hussain said the appeals court ruling effectively did away with the requirement that the government show that it was more likely than not that he had been part of an enemy force.

As is their custom, the justices offered no reasons for turning down the case.

But Justice Stephen Breyer issued a statement seeming to invite a challenge focused on whether detentions at Guantanamo are proper if the government cannot show that the prisoner had been affiliated with “forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there.”

Front Section, Pages 4 on 04/22/2014

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