New York Times

Justices Take Case on Status of Jerusalem in Passports

By ADAM LIPTAK APRIL 21, 2014

WASHINGTON — The Supreme Court on Monday agreed to decide whether
Congress may require the State Department to treat Jerusalem as the capital of
Israel in American 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 B. 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.”

The Obama administration takes the same view. In a brief, it 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 United States 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 Guantánamo 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 says he was affiliated with Al Qaeda or the Taliban.

Mr. 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, Mr. Hussain said that 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 G. Breyer issued a statement seeming to invite a challenge
focused on whether detentions at Guantánamo 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.”