Adoption and the Law of Return

By Daniel Tauber
The Jewish Press
Wednesday, February 25 2009

It may not be a "basic law," Israel's set of semi-constitutional laws, but the Law of Return is probably the most fundamental law of the state. It certainly is the most Jewish and Zionist of all Israel's laws.

The Law of Return states that "[e]very Jew has the right to come to this country as an oleh." It fulfills provisions of the 1922 Palestine Mandate approved by the League of Nations, which gave international recognition to Zionism and placed a legal obligation on the then-administering power of Palestine, Britain, to provide for close settlement of the Jews in Palestine.

It also fulfills provision of the Declaration of the Establishment of the State of Israel, which holds that "the Jewish State would open the gates of the homeland wide to every Jew" and that "[t]he State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles."

The Law of Return captures the very weltanschauung of Zionism and the Jewish state. So it's no surprise that Ben-Gurion believed the Law of Return to be one of Israel's most important laws.

It is precisely because the Law of Return captures the essence of the State of Israel and the national interest of the Jewish people in the modern era that it is subject to so much controversy and attack, in and out of Israel's courts, by several groups: Israel's Christian friends, concerned about the status of messianic Jews whose missionary activity could threaten the Jewish character of the state; Israel's Arab enemies; and Israel's post-nationalist, post-Zionist academic elite who see this law, so central to the reestablishment of Jewish sovereignty in Israel after 2,000 years of persecution culminating in the Holocaust, as evil and racist.

The Law of Return became the subject of yet another legal controversy in Israeli courts in regards to the affects of adoption on the ability of an applicant to receive the benefits of automatic citizenship under the Law of Return.

According to Jewish law - the determining factor of Jewish identity for thousands of years - a person who is Jewish cannot become non-Jewish. The halachic definition was practically incorporated into the Law of Return by virtue of a 1970 amendment that reversed an Israeli Supreme Court decision ordering that a "subjective test" - a person's statement that he or she is Jewish - be used in determining Jewish identity.

The 1970 Amendment stated that "[f]or the purposes of this Law, 'Jew' means a person who was born of a Jewish mother or has become converted to Judaism and is not a member of another religion." This objective halachic definition is the one that Jews had used for thousands of years, with an understandably added stipulation against apostates.

This definition of a Jew does address the issue of adoption: It says a person is a Jew if he or she was "born to a Jewish mother" (emphasis added), specifically including people who were born to but not necessarily raised by Jewish parents.

So the case of an adopted Jew would be a no-brainer. Otherwise, Jewish children saved by Christian parents during the Holocaust - Anti-Defamation League national director Abraham Foxman, for example, who was raised as a Catholic by his rescuers - could face serious problems if they wanted to make aliyah under the Law of Return.

The problem is that the adopted person at issue in the current case, Regina Bernik, is not a Jew, since it is her biological father, not her mother, who is Jewish.

Under the Law of Return, however, "the rights of an oleh are also vested in a child and grandchild of a Jew, the spouse of a Jew." (This provision was most likely aimed at ensuring that a Jew who married a non-Jew would not be deterred from making aliyah or to cover the Holocaust scenario in which a person is persecuted because of his or her Jewish blood.)

After the Ministry of the Interior rejected Bernik’s request to for citizenship under the Law of Return, Bernik petitioned Israel’s Supreme Court. Attorney General Menachem Mazuz argued to the court that while the effect of adoption on the Law of Return was up for interpretation, the biological relation of the petitioner to a Jew should be the determining factor.

According to Ynetnews.com, the court’s judgment is due soon.

An even more pressing problem than how adoption affects the Law of Return is that over the years the Israeli Supreme Court has been eroding the objective halachic definition of a Jew by widely interpreting the definition of "conversion" so that anyone who converts to Judaism under the auspices of just about anybody can be considered a Jew.

In the case of Pessaro (Goldstein) v. Minister for the Interior (1995), the court recognized a non-Orthodox conversion performed outside Israel as a valid conversion under the Law of Return and awarded the non-Orthodox convert automatic citizenship rights under the Law.

In Pessaro, the court cited the would-be immigrant's religious rights under the rubric of what the court termed the "freedom of the convert" (a concept which never before existed in Israeli law) as support for its ruling. The court thus awarded the benefits of citizenship (rights) - the very thing at stake in the case - to non-citizens, using circular reasoning and a fantastic tautology: it recognized the petitioner as a valid convert because of his rights due to him as a valid convert.

In reaching its decision, the court rejected the dissenting opinion of Judge Tzevi Tal, who noted that even in the United States immigration law is an area in which laws are constitutionally permitted to be discriminatory and therefore the rights of the would-be immigrant were irrelevant to the case. Tal further wrote that recognizing conversions performed by any Jewish group outside of Israel - regardless of whether the group followed halachic standards for conversion - would have the practical effect of allowing any group to issue immigration visas and citizenship to the State of Israel.

It is not clear how the court will rule on the adoption case, but one thing is clear: protecting Jewish identity does not seem be among the weightiest factors influencing the court’s judgment.

CORRECTION NOTICE: This article has been revised. It originally stated that the Attorney General had said that the effect of adoption of a person born to a Jewish mother on the person’s rights under the Law of Return was up for interpretation. As noted above, the Attorney General’s statement was addressed at the rights of a non-Jew under the Law of Return by virtue of that person’s relation to a Jew, such as a Jewish father. We apologize for the error.

http://www.jewishpress.com/pageroute.do/38316

Fourth Circuit Rejects U.S. Appeal in AIPAC Case

In the espionage case against two former AIPAC employees, accused of passing classified information to other AIPAC staffers, foreign officials and the media, the Fourth Circuit rejected the U.S. Government's request to review the trial court's determination that two documents could be introduced into court by the defendants.

The Court held that the government's appeal was interlocutory;  that regarding one admitted document - the "Israel Briefing Document" - whose relevence was unclear, the Court could not "substitute our judgment for that of the trial court, which has been immersed in these proceedings for many months and has far more familiarity with the matter than we do;" and in regards to the other - the "FBI Report" the Court simply upheld the trial court's determination that another document was relevant. 

According to the JTA the "[o]bservers have predicted that the . . . decision could lead the Obama administration to reconsider whether to go ahead with the case."

Israeli Supreme Court Appoints Committee to Probe Situation of Gaza Expellees

Israel's Supreme Court has appointed a committee to investigate the compensation and assistance (or lack thereof) given by the Israeli government to those expelled from Gaza as part of the Disengagement. The Committee will be headed by a former Supreme Court judge, Eliyahu Matza.

According to a July report, 81% of those expelled still lacked permenant housing, while a more recent January 2009 report states that 95% of those who requested to be resettled with other expellees do not have permanant housing.

The July report also said that 37% of those expelled describe their economic situation as bad or very bad, with many forced to use the compensation for their homes, which would have been used for new homes, for day to day living instead. 17% percent of those expelled did not have jobs, 2.7 times higher than the rest of the country.

Anti-Semitism and Jonathan Pollard

A number of recent Jerusalem Post articles have been dedicated to the subject of Jonathan Pollard. In one of them, Esther Pollard, compared her husband's case to that of French military officer Alfred Dreyfus. In response to Esther's article (which was itself a response to another article), Jerusalem Post columnist Larry Derfner declared that it would be crazy to think that anti-Semitism was behind Pollard's long sentence.

Derfner writes:

You have to be way over the top with Jewish paranoia to believe that George W. Bush and Bill Clinton are anti-Semites or haters of Israel, that they acted out of such motives in the White House. I think any reasonable person, Jew or gentile, has to agree that neither Bush nor Clinton would have treated any Jew unfairly because he wanted to punish American Jewry or the State of Israel.

Therefore, Derfner concludes, it must be that Pollard deserved his life sentence for an offense, which as Esther Pollard said, "carries a median sentence of two to four years."

But Derfner is "way over the top with Jewish" naiveté, to believe that anti-Semitism had nothing to do with a ridiculously harsh sentence being given to a Jew spying for the Jewish state.

First of all, there is no magic pill that U.S. Presidents take to immunize themselves from anti-Semitism. Can there really be any doubt that anti-Semitism was behind U.S. immigration policies keeping Jews out of the United States during World War II? What about Nixon's numerous slurs against Jews (and other groups) caught on tape?

Regardless of a President's possible anti-Semitic feelings, the President didn't put Pollard in prison and therefore no one is accusing President Clinton or Bush of taking any anti-Jewish action. But just because the president isn't anti-Semitic doesn't mean that anti-Semitism has nothing to do with the case.

It is hard to believe that Pollard's actions were so heinous as compared with others convicted of passing classified information, as President Clinton agreed to consider releasing Pollard and the U.S. prosecutor did not seek a life sentence.

Instead of an anti-Semitic president cruelly keeping Pollard in prison, the picture Derfner says Pollard supporters (who include most of Israel's Knesset) have in mind, what is more likely is that high level officials in the executive branch are the ones with anti-Semitic feelings. As Derfner forgets, there are in fact people who believe that U.S. support for Israel has no rational basis, and is only due to overbearing Jewish lobby groups who have more control over U.S. policy in the Near East than they should. Such people would see Pollard's release (or being given any sentence other than life) as a miscarraige of justice and as being against U.S. interests. They would therefore oppose granting Pollard any mercy despite Pollard's cooperation with U.S. Prosecutors, their promise not to seek a life sentence, and the U.S.-Israel friendship, in a way they wouldn't even consider with a person convicted of passing classified information to any other country.

For more information see:

• The Official Website for Jonathan Pollard.
• Richard A. Best Jr. & Clyde Mark, Jonathan Pollard: Background and Considerations for Presidential Clemency (CRS Report for Congress, Jan. 31, 2001).
• Eli Kavon, The Pollard Affair: Was it Dual Loyalty (Jerusalem Post, Feb. 11, 2009).
  
• Ruthie Blum Leibowitz, One on One: 'I was the resident skeptic' (Jerusalem Post, Feb. 12, 2009).
  
• Esther Pollard, Right of Reply: Not treason, not dual loyalty, but equal justice is the issue (Jerusalem Post, Feb. 15, 2009).
  
• Larry Derfner, Rattling the Cage: Jewish paranoia and Jonathan Pollard (Jerusalem Post, Feb. 18, 2009).
  

France High Court Recognizes French Culpability in the Shoah

The French Council of State, the highest court in France, gave official legal recognition to France’s responsibility for its role in sending 77,000 Jews to Nazi death camps during the Holocaust.

The Council said that France had “permitted or facilitated the deportation from France of persons who had been victims of anti-Semitic persecution” and that these actions had not been the result of “direct constraints put upon it by the occupying [Nazi] force.”

The Council’s statement was part of an advisory opinion to a Paris administrative court in which the daughter of a French citizen deported to Auschwitz sought reparations from France.

The official trend of accepting France’s role in the Holocaust instead of differentiating between the French state itself and the Vichy government began in 1995 when French President Jacques Chirac publically acknowledged France’s role:

These dark hours forever sully our history and are an insult to our past and our traditions . . . . Yes, the criminal folly of the occupiers was seconded by the French, by the French state.

Almost classically, this European state’s admittance of guilt also came with a disclaimer of any further responsibility towards the victims and their progeny: "The various measures taken since the end of World War II, both in terms of compensation as well as symbolic reparation, have repaired, as much as was possible, all the losses suffered," the Council said.

While the Court ruled out further monetary reparations, perhaps France as a whole should consider, at least, learning from its mistakes by giving it’s current Jewish community of more than 500,000 (higher than the 350,000 of pre-WWII France) greater protection from a growing anti-Jewish Muslim population and by giving greater support to the largest Jewish community in the world, the State of Israel, against the Nazi-like enemy it is confronted with on a daily basis.

Even more so, in recognition of the Holocaust, perhaps Europe as a whole can reject Arab's using the "apartheid" card when it comes to Israel . If it weren't for the Holocaust, Israel's population would be boosted by 6,000,000 and their progeny, making any comparison to South African aparthied or Arab democratic rights to control the State of Israel laughable.

For more information on France's Council of State's ruling see:
• France 'responsible' for holocaust deportations, court rules (Telegraph, Feb 16, 2009),
• French Holocaust role recognised (BBC, Feb. 16, 2009)
• France's role in Holocaust legally recognized (AP / Jerusalem Post, Feb 16, 2009)
• France 'responsible' for Holocaust deaths (CNN, Feb. 16, 2009)