One of the most memorable moments in our newspaper career was some years ago when we asked our lawyer at the time whether we could destroy a piece of evidence. Actually, it was a photocopy of the evidence. We weren’t asking whether we could destroy the original piece of evidence, only an extra Xerox that was lying around. What a volcanic warning against doing so this ignited in our libel lawyer, the normally mild-mannered Nicole Seligman Esq. Let us just say, we’ll never ask whether we can toss out an extra copy of evidence again.
We were thinking of that moment when we read this week an editorial in the Jewish Press in respect of Jerusalem. The newspaper is suggesting that there may have been criminal violations in efforts by the Obama administration to, as the Jewish Press puts it, “alter some files of the Bush administration that refer to Jerusalem as the capital of Israel.” This appears to have occurred while the Supreme Court was preparing to consider whether the Congress can require that certain government documents treat Jerusalem as being in Israel.
The standing of Jerusalem as Israel’s capital is a matter to which these columns have paid a good bit of attention over the years, and we were intrigued by the Jewish Press’s editorial. Particularly so in this case, because the existence of a series of pictures on the White House website from Vice President Biden’s 2010 trip to Israel, describing him as being in “Jerusalem, Israel,” was first reported by Rick Richman in a dispatch for the New York Sun. It ran on August 4, 2011, under the headline: “Jerusalem Case at Supreme Court May Pit White House Web Site Against the President” and described the pictures as possibly pivotal evidence in the case of Zivotofsky v. Clinton.
The case involves the constitutionality of a law that regulates how the State Department refers to place of birth in passports of Americans born in Jerusalem. Normally the State Department just lists “Jerusalem,” with no country. In 2002 Congress required that if an American born in Jerusalem requested, the State Department must list the birth place as “Israel.” Both Presidents Bush and Obama have declined to follow the law, claiming it interferes with presidential prerogatives — and would complicate the peace process. The Sun’s dispatch queried whether the required designation of “Israel” on an individual’s passport really presented an issue of constitutional proportions, since the White House acknowledged on its own website (as did the CIA and State Department on theirs) that Jerusalem is in Israel.
Five days after Mr. Richman’s report, the Weekly Standard put one of the photos of Mr. Biden, and its cutline, up on its Web site. Within two hours, the White House had scrubbed from the pictures the references to Jerusalem being at Israel. Omri Ceren, a blogger at Commentary Magazine’s “Contentions” site, discovered an even broader pattern suggesting that documents from the Bush era that had referenced Jerusalem, Israel had been scrubbed as well. In the May issue of Commentary, Mr. Ceren writes that, “while some administration officials were telling reporters and the public that there were no Bush-era documents referencing ‘Jerusalem, Israel,’ other administration officials were busy scrubbing Bush-era documents referencing ‘Jerusalem, Israel.’’
“No small task” is how Mr. Ceren described the alterations. “Somebody at the State Department had to go back to the original 2002 and 2003 documents, convert them into PDF files, then upload the new ones to the State Department servers under the same file names as the old documents,” he wrote. The suggestion that such actions, if they took place, could be a criminal matter was made in the editorial in the Jewish Press of May 11. We’re not of a strong opinion about the matter, one way or another. It may be that it’s legal for the administration to correct what it sees as clerical errors that might complicate its diplomacy or longstanding legal position.
Nonetheless, it strikes us as a more serious matter when the Supreme Court was in the midst of considering the whole question. After all, on the order of the Supreme Court, the lower courts are still wrestling with the question. References to Jerusalem in government documents are still potential evidence in the case. We keep thinking back to the volcanic warning we got when we asked about discarding an extra copy of a piece of evidence. If the administration wants advice on the point, we could steer them to one tough lawyer.