The State Dept. Misled the Supreme Court On Zivitofsky

As the State Department justification for its non-recognition of Jerusalem as Israel is that all of Jerusalem was part of the recommended (never decided upon and rejected by Arabs) corpus separatum status of Jerusalem as included in the UN GA Partition Plan, there's a problem with the State Dept. regulation.

Bethlehem, Beit Sahour, Beit Jalla, Beit Hanina, Shoafat, etc. were also within the area of the corpus separatum according to the partition plan.  And as the State Dep't made clear in 1963:

...the geographic area of Jerusalem was the same; i.e., as defined in Resolution 181...the geographic boundaries of this area are as set forth in Resolution 181...This basic U.S. view concerning the geographic definition of the area describes also the area of jurisdiction of the United States Consulate General in Jerusalem.

As I posted six years ago, and passed on my findings, the State Dept designates US citizens born in those places differently than they do citizens born in Jerusalem:

7 FAM 1360 APPENDIX D BIRTH IN ISRAEL, JERUSALEM, AND ISRAELI-OCCUPIED AREAS (CT:CON-254; 04-29-2008)
...f. Birthplace in Jerusalem: For a person born in Jerusalem, write JERUSALEM as the place of birth in the passport. Do not write Israel, Jordan or West Bank for a person born within the current municipal borders of Jerusalem. For applicants born before May 14, 1948 in a place that was within the municipal borders of Jerusalem, enter JERUSALEM as their place of birth. For persons born before May 14, 1948 in a location that was outside Jerusalem’s municipal limits and later was annexed by the city, enter either PALESTINE or the name of the location (area/city) as it was known prior to annexation. For persons born after May 14, 1948 in a location that was outside Jerusalem’s municipal limits and later was annexed by the city, it is acceptable to enter the name of the location (area/city) as it was known prior to annexation.

In my understanding, the State Dept. arbitrarily recognizes municpal boundaries when it suits political persuasions rather than law or legalities.  If the corpus separatum is the basis, the boundaries of that entity still hold for today.  But the State Dept. 'relaxes' its definition of territory and makes 'holy' municipal borders'.  That's not fair.

Moreover, as the State Dept designates US citizens born in those places as in the West Bank [a state that doesn't exist now and didn't exist then], the prejudice is blatant.

Did the State Dept. mislead the Supreme Court?

__________

P.S.   Rick Richman at The NY Sun has another problem for the State Dep't.

P.P.S.

Some additional excerpts from State Dept. documents on its Jerusalem policy as background:

Washington, January 26, 1950—7 p. m.secret

In US view it is not consistent with present status UN consideration Jerusalem question for Israel to establish its capital in that city. US regrets note that Israel apparently does not share US view that no steps shld be taken which wld be prejudicial to final settlement Jerusalem problem...Recent action of Israeli Govt in obtaining Knesset approval of Govt-sponsored resolution concerning Jerusalem as capital of Israel will in US view make such settlement more difficult to reach.

Since Jerusalem question sub judice in UN, USG unable accede Eytan suggestion*.

In US view, basic problem is to obtain solution of Jerusalem question by a settlement which will safeguard legitimate interests of parties most directly concerned and of international community...Acheson


* on January 19, Mr. Eytan had approached Ambassador McDonald as Dean of the Diplomatic Corps with information that the Israeli Government was ready to cooperate with foreign missions in preparing for their offices and residences in Jerusalem. The Ambassador replied informally that his “categorical instructions re Jerusalem indicated that US Government would not be willing make any move now even of the most tentative kind in direction move Jerusalem.” (784A.02/1–2050)


784A.02/1–450: Telegram

The Secretary of State to the Embassy in Israel
Washington, January 4, 1950—5 p. m.secret

1. US does not recognize sovereignty of Israel in Jerusalem.3 UN is seized of Jerusalem problem, and US attitude toward status of city will continue be framed in light UN situation.
2. US continues to support principle internationalization of Jerusalem along lines modified regime such as that proposed by PCC.
3. Dept does not desire Emb Tel Aviv to conduct official business in Jerusalem with Israeli Central Govt officials who may move there. FonOff in Tel Aviv provides normal means contact Israeli Govt for foreign dipls. If Israeli Govt shld seek persuade Emb reps carry on official business with Central Govt officials in Jerusalem, Emb reps shld state they not authorized do so. From time to time it will of course be necessary for Emb to deal with important Israeli officials whose offices have been transferred to Jerusalem, but Dept believes these officials will spend part of their time in Tel Aviv where official business can be conducted with them. If need arises Emb shld make clear to Israeli Govt that in present circumstances it can only conduct official business with Govt officials outside Jerusalem area.
4. Dept continues desire that Ambs visits to Jerusalem for unofficial purposes be restricted to absolute minimum.

5. No objection contact by ConGen Jerusalem with such Israeli ministries as may be in Jerusalem, on routine consular affairs affecting Jerusalem area only. If need arises both Emb and ConGen shld make clear to Israeli officials that Emb continues to be sole US dipl representation near Israeli Govt. Of course no objection to non-official courtesy and social contacts between Reps ConGen and Israeli Central Govt officials stationed in Jerusalem.

and

784.00/1–1350
Memorandum by Mr. Leonard C. Meeker of the Office of the Legal Adviser to the Officer in Charge of Palestine–Israel–Jordan Affairs (Wilkins)

[Washington,] January 13, 1950.
Subject: Consular Exequaturs in Jerusalem

A legal opinion has been requested by NEA concerning the position which the United States should take if the Government of Israel now requests this Government to apply to Israeli authorities for exequaturs for American consular officials in Jerusalem. In a memorandum to Mr. Rusk dated December 9, 1949,1 Mr. Jernegan2 recalled that the Turkish Embassy in Washington had received such a request from the Israeli Embassy concerning Turkish consular representatives “in Israel and in territory controlled by Israel”. In that memorandum Mr. Jernegan expressed the view, which he believed was probably shared by the Turkish Embassy, that an answer to the request of the Israeli Ambassador would be dependent on action taken by the General Assembly at its Fourth Session concerning the internationalization of Jerusalem. On December 9, 1949 the General Assembly in fact adopted a resolution on internationalization.

In the light of this resolution, the United States, as a Member of the United Nations, should not take any steps with respect to the functioning of American consular officers in Jerusalem which would recognize the sovereignty of any national state in that area. However, it would not be inconsistent with the obligations of the United States as a United Nations Member to maintain consular officers in Jerusalem by agreement with the Israeli or Jordan Government, on a de facto basis and without exequaturs. It would also seem permissible to seek and accept exequaturs for such officials in Jerusalem if it were clearly understood that such action did not involve recognition by the United States of Israeli or Jordan sovereignty in Jerusalem. If, however, the national states concerned would not agree to issue exequaturs with such an understanding, but only on the understanding that recognition of sovereignty would be implied, then the United States ought not to apply for and obtain exequaturs for its consular officers in Jerusalem.

The General Assembly resolution of December 9, 1949, providing for a special international régime for Jerusalem, was based implicitly on the theory that the Assembly had the right to determine the status and future government of Jerusalem. The chain of reasoning would run somewhat as follows:

(a) In the World War I settlements Turkey renounced all rights and title to certain areas including Palestine, “the future of those territories and islands being settled or to be settled by the parties concerned.”
(b) Prior to the Treaty of Lausanne, in which this renunciation was made, the Supreme Council of the Allied Powers had met at San Remo and allocated Palestine to be placed under mandate (Class A), pursuant to Article 22 of the Covenant of the League of Nations, with Great Britain as the mandatory power.
(c) Under the mandate instrument approved by the Council of the League of Nations, the mandate was subject to modification with the consent of the League Council and could be terminated by the mandatory power.*
(d) At the request of the mandatory power made early in 1947, the United Nations General Assembly made a recommendation concerning the future government of Palestine in the Assembly’s resolution of November 29, 1947. This recommendation, “accepted” by the mandatory power, contained provisions for an internationalized City of Jerusalem under United Nations control, apart from the Jewish and Arab States to be created in Palestine.
(e) Although the Statute for Jerusalem which the United Nations Trusteeship Council drafted pursuant to the November 29 resolution was not placed in operation upon the termination of the British mandate for Palestine (May 14, 1949),† Jerusalem remained at the disposition of the United Nations.
(f) Through its resolutions of May 6, 1948 and December 11, 1948,‡ the General Assembly has perpetuated its interest and authority with respect to the future of Jerusalem.
It is evident that the chain of reasoning just referred to is a complicated one, certainly not free from serious doubts and difficulties. It is noteworthy, for example, that the Israeli Delegation at the Fourth Session of the General Assembly took the position that “Jewish Jerusalem” had become integrated with the State of Israel. In a memorandum submitted to the General Assembly on November 15, 1949 the Israeli Delegation stated: “The Mandate unmistakably came to an end in the absence of a ‘specific link of any kind between the United Nations and Jerusalem.’” The memorandum went on to assert that no events after May 14, 1948 operated to confer legal authority on the United Nations with respect to Jerusalem. The memorandum concluded:

“Moreover, it would be misleading to think of the present political relationship between Israel and Jerusalem as a provisional connection which could still be loosened. History knows no precedent of a population, having once achieved union with its own natural and kindred government, voluntarily turning back to mere semi-autonomy under outside control. The Charter provides for no contingency whereby an area of independence can become a non-self-governing territory.”§

The General Assembly resolution of December 9, 1949 concerning Jerusalem provides as follows:

[Here follows the text of the resolution; see Foreign Relations, 1949, volume VI, page 1530.]

This resolution assumes power in the General Assembly to make binding provision for the future government of Jerusalem. When the Assembly was discussing the Jerusalem question, it was of course open to Members of the United Nations to debate the issue of United Nations power in regard to Jerusalem. The view held concerning this issue by the Government of any Member would properly be a factor in determining that Member’s vote on a resolution such as the one finally adopted by the Assembly. Once, however, the General Assembly has made a recommendation, the recommendation is entitled to great weight and Members of the United Nations ought to respect it.

In regard to the Jerusalem problem, United Nations Members are not free to attack collaterally and undermine the adopted resolution of the Assembly, even though they may disagree with the resolution or think it based on an erroneous conception of the Assembly’s authority. Considerations such as these were properly before the General Assembly when it adopted the December 9 resolution on Jerusalem and may be before the Assembly at a future session if it again takes up the Jerusalem problem. In the interim, while the December 9 resolution remains operative, the United States, as a member of the United Nations, should respect the General Assembly’s recommendation and should refrain from inconsistent action.

Consistently with the General Assembly resolution, the United States and Israel or Jordan might agree that, pending final determination and actual establishment of a permanent Jerusalem régime, this Government should keep consular officials in Jerusalem who would exercise their functions in the absence of any exequaturs issued by Israel or Jordan. But the United States should not now accede to requests from any national state that this Government apply to it for consular exequaturs covering the Jerusalem area if such action were understood by the governments concerned to imply recognition of the national state’s sovereignty in Jerusalem. Nevertheless it would seem consistent with the position of the United States as a Member of the United Nations to apply for and receive exequaturs from the government of a national state if it were clearly understood that these steps did not involve recognition of the state’s sovereignty in Jerusalem.

The past practice of the United States in analogous situations has not been uniform. In 1911 the United States sought and secured recognition from Belgium of American consular officials in the Congo, at a time when the United States did not recognize Belgian annexation of the Congo. The Department of State instructed the Minister to Belgium that such consular recognition was by the de facto authorities, “it not being a question of de jure determination.” See IV Hackworth, Digest of International Law (1942) p. 684. In 1924 the Department authorized American consular officers in Chile to accept exequaturs from an unrecognized régime on condition that the issuing régime understood clearly that acceptance did not imply recognition. See ibid. at 688. But under similar circumstances in Mexico and the USSR the United States declined to apply to unrecognized régimes for any official recognition of American consuls. See ibid. at 686–87.

In the cases of Czechoslovakia and Danzig in 1939, the United States sought exequaturs from the German Government on condition that the position of the United States with respect to the status of these two territories should be considered preserved. Germany refused, and the American consulates were closed. See ibid. at 689–90. The United States for its part has declined to issue exequaturs in this country to the consuls of unrecognized foreign régimes. See ibid. at 694 (Ecuador).

Leonard C. Meeker

1 Copy not found in Department of State files.
2 John D. Jernegan, Director of the Office of Greek, Turkish, and Iranian Affairs.
* Such termination perhaps required the Council’s consent during the period of the League’s active existence. [Footnote in the source text.]
† The Trusteeship Council completed its work on the Statute on March 10, 1948, but deferred the question of formal approval until the Third Part of its Second Session, to be convened in April. When the Council met again, it referred the matter of the Statute to the General Assembly on April 21, for such further instructions as the Assembly might see fit to give. The Assembly, then meeting in special session, did not reply, other than to adopt on April 26 a resolution requesting the Trusteeship Council to study measures for the protection of Jerusalem and report to the General Assembly. It was on the basis of the Council’s report that the Assembly adopted on May 6 a resolution recommending the appointment of a Special Municipal Commissioner for Jerusalem.

A Commissioner was in consequence appointed (Mr. Harold Evans, of Philadelphia). Although he never reached Jerusalem, a Deputy Commissioner—Mr. Pablo Azcarate—has served in the post for over 18 months.

The General Assembly has never revoked its resolution of November 29, 1947. On May 14, 1948 the Assembly adopted a resolution which in its third part merely relieved the Palestine Commission (established by the November 29 resolution) “from the further exercise of responsibilities.” On July 29, 1948 the Trusteeship Council adjourned indefinitely any further consideration of the Statute for Jerusalem. [Footnote in the source text.]

^

Jerusalem Between Israel, Washington and the "West Bank"

As we now know

The US Supreme Court on Monday granted certiorari in three cases slated for argument during the October 2014 term. In Zivotofsky v. Kerry, the court will address the constitutionality of a federal statute requiring the Secretary of State, on request, to endorse US passports and Consular Reports of Birth Abroad of US citizens born in Jerusalem with "Israel" as the place of birth. The US Court of Appeals for the District of Columbia Circuit found the statute unconstitutional on grounds that it "impermissibly infringe[d] on the [p]resident's exercise of the recognition power."

As I have opined, the case, I think, could be strengthened by pointing out two additional, if quite simplistic, aspects of the affect of the law.

In the first case, not appending a "state" identification would cause a bureaucratic burden in that it could so develop that the United States citizen, birth registered and subsequently carrying a passport without a birth location, if visiting a country with a city named "Jerusalem" could conceivably be ordered to either pay taxes, or be liable for military service or some other civic obligation as if he were a citizen of that other country.

In not being able to easily and immediately prove that he was born is another country, i.e., Israel. due to the State Department's regulations and the refusal of the President to follow through on the Jerusalem Act, his lack of country identification on his official papers causes a hindrance that could easily be resolved by adding "Israel".

In the second case, State Department regulations at the present recognize something called the "West Bank".

As I have blogged five years ago, the document U.S. Department of State Foreign Affairs Manual Volume 7 – Consular Affairs 7 FAM 1300 Appendix D Page 11 which can be read online here, reads

"c. Birth in the West Bank or in the No Man’s Lands between the West Bank and Israel: The birthplace for people born in the West Bank or in the No Man's Lands between the West Bank and Israel is WEST BANK; Those persons born before May 1948 in the area known as the West Bank may have PALESTINE listed as an alternate entry. Those born in 1948 or later may have their city of birth as an alternate entry. Persons born in the West Bank in 1948 or later may not have Palestine transcribed as an alternate entry." 

Now, as you and I and the State Department well know, there is no state of the "West Bank". 

Nevertheless, if you read "g." carefully, it gets worse:

g. Birthplace in Area Formerly Known as Palestine: An applicant born in the area formerly known as Palestine (which includes the Gaza Strip, the Golan Heights, Jerusalem or the West Bank) may object to showing the birthplace. In such cases, explain the Department of State (CA)’s general policy of showing the birthplace as the country having present sovereignty. The Senior Passport Specialist, Supervisory Passport Specialist or Adjudication Manager at a domestic passport agency or center or supervisory consular officer or regional consular officer at a U.S. embassy or consulate may make an exception to show PALESTINE as the birthplace if the applicant was born before 1948. If the applicant was born in 1948 or later, the city or town of birth may be listed if the applicant objects to showing the country having present sovereignty.

"Sovereignty"?  Whoa there.  No one has sovereignty, the State Department usually claims as regards Israel so how come it includes that term there?  Why is the "West Bank" to be permitted as a supposed sovereign country but Israel which surely has a much better proven sovereign administration, including a capital. a Supreme Court and government offices as well as a seat of government with a residing Prime Minister and a residing President is denied such a status?

And as for the term "West Bank", besides not existing as a country/state, the term "West Bank" was first used to describe what the United States considered an illegal occupation and annexation by the Hashemite Kingdom of Jordan of the area in April 1950.  

If the State Department refuses to permit "Israel" to be the state in which "Jerusalem" is located, 

why do they recognize the opposite when it comes to the "West Bank"?

Is that logical?  Or is that simple bias?

In any case, the US Supreme Court should not extend assistance in any legal way to this situation.  The Justices should indeed intervene and whether or not it is a matter of constitutionality, there is a simple matter of justice: you cannot treat Israel any less than something, which is non-existent and has much less proof of sovereignty, called the "West Bank".

_______________

And read this.

^

OU's "Jewish Action" Article on Entering the Temple Mount

Following the well-viewed entrance of Rabbi Mordechai Tendler into the Temple Mount via video (see follow-up here), the OU's "Jewish Action" magazine explains the situation on the basis of Halacha.

It is quite a complicated subject but below are the highlights:

What’s the Truth About…Har HaBayit? By Ari Z. Zivotofsky

(His caveat: This article is not taking a position on the propriety of ascending Har HaBayit nowadays. If, however, one chooses to ascend, he must be careful to restrict himself to certain areas and to immerse properly in a mikvah prior to going. Furthermore, one must adhere to the laws relating to mora mikdash, showing awe and reverence for the Beit Hamikdash, and should ascend under the guidance of an expert in the topic.)

MISCONCEPTION: Many religious Jews do not visit Har HaBayit (the Temple Mount) today. This is because we are all presumed to be in a state of tumat met (ritual impurity due to “contact” with the dead), and a tamei met is prohibited from ascending Har HaBayit. (Since the removal of tumat met requires the use of the ashes of a parah adumah, which are currently not available, every Jew is presumed to be in this state of impurity.)

FACT: Although individuals with certain forms of ritual impurities are barred from all of Har HaBayit, a tamei met may enter the peripheral areas of Har HaBayit surrounding the central holier region that included the Temple compound. Thus, although we currently lack the means to remove tumat met, this is not really a deterrent for ascending Har HaBayit. Those who refrain from ascending do so because of other halachic or political concerns or because of archeological uncertainties.1

BACKGROUND: Halachah recognizes different levels of kedushah (holiness) that relate to both time and place...A similar hierarchy [to the Shabbat example] is relevant to the sanctity pertaining to space.

The sanctified areas in Jerusalem correspond to the Israelite desert encampment (Tosefta, Keilim 1:10; Sifri, Naso 11; Rambam, Beit Habechirah 7:11; see Aruch Hashulchan Ha’atid, Beit Hamikdash 14:17, 36:7). Three concentric levels of sanctity existed in the encampment: the innermost area called Machaneh Shechinah, the Divine Camp that contained the mishkan (Tabernacle); Machaneh Leviyah, the encampment of the Levites that surrounded Machaneh Shechinah, and Machaneh Yisrael, an area beyond Machaneh Leviyah where the rest of the Jews encamped. When the Jews settled the Land of Israel these “camps” were represented by the following sanctified areas: the Azarah (Temple Courtyard), which started at Sha’ar Nikanor (the Nikanor Gate) and included the Beit Hamikdash building and the altar (Machaneh Shechinah); Har HaBayit (Machaneh Leviyah) and the rest of Jerusalem (Machaneh Yisrael)...

A person experiencing one of these states of tumah who ascends Har HaBayit does not incur the penalty of karet but is guilty of violating a negative prohibition, for which he should receive lashes (Rambam, Biat Mikdash 3:8). In order to remove these types of tumah, one must wait a requisite period of time, immerse in a mikvah and wait for the sun to set.9 During the period between immersion and sunset the individual has the status of a tvul yom, and is permitted on Har HaBayit but can go no further than the Ezrat Nashim (Women’s Courtyard) (Rambam, Biat Mikdash 3:5-6 and Beit Habechirah 7:17).10

In summary, the generally accepted halachot are as follows: a tamei met may ascend Har HaBayit, but may only proceed as far as the Cheil. Those in a state of tumah hayotzei megufo are barred from the entire Har HaBayit; once such a person becomes a tvul yom, he is permitted on most of Har HaBayit.

All of the above regulations were in effect during the time of the Temple. The question is, Are they applicable today?...

Even though the mikdash is today destroyed due to our sins, one is obligated in its reverence just as when it was standing. One should not enter except where he is permitted, and should not sit in the Azarah and not act with levity opposite the Eastern Gate. … Even though it is destroyed it still possesses its holiness (Beit Habechirah 7:7).

Opposing Rambam, Ra’avad (Beit Habechirah 6:14) opines that since the Beit Hamikdash was destroyed, the original sanctity of the area is no longer in effect and therefore the punishment of karet no longer applies. Some understand Ra’avad as disagreeing with Rambam only with respect to the actual punishment of karet; according to this reading, he concurs with Rambam in that the restrictions pertaining to Har HaBayit still stand—or at the very least, he is uncertain as to whether these restrictions still apply and therefore does not permit entry ab initio. Others are of the opinion that Ra’avad permits free entry to all of Har HaBayit.14

Today, Israel’s Chief Rabbinate and many rabbis forbid Jews from ascending Har HaBayit, and thus no shul or other Jewish structure is found there. Some rabbis do permit entry (the number of religious Jews who visit is increasing, but is still quite small). But, seemingly, Jews did not always avoid the area.15 It is reported that with the Muslim conquest in 638 CE, the Jews were permitted to build a shul and beit midrash on Har HaBayit. Ben-Zion Dinburg,16 a former Israeli minister of education, marshals numerous obscure sources to demonstrate that a shul existed on Har HaBayit between the seventh and eleventh centuries. Rabbi Shlomo Goren (Sefer Har HaBayit [5752], chap. 26) finds evidence of a Jewish presence on Har HaBayit even before the Muslim conquest. Meiri (1249-1315; Shavuot 16a) wrote that he heard that in his time there was a widespread custom to ascend Har HaBayit. The Radvaz (1479-1573; 2:691) assumed that the rock in the Dome of the Rock is where the aron kodesh stood and he calculated how far one must be from that point; he then permitted entry to the rest of Har HaBayit. Rabbi Yechiel Michel Tuketchinsky (d. 1956), writing pre-Six-Day War (Ir Hakodesh Vehamikdash, sec. 5, pp. 80-81), observes that in the time of the Beit Hamikdash there were shuls on Har HaBayit. Furthermore, he says that in our pre-Messianic period, when we get permission to build (and the ability to do so), there is plenty of available space on Har HaBayit on which a shul can be built...the remains of numerous Second Temple period mikvaot have been found in close proximity to Har HaBayit. Although their precise purpose is unclear, it has been reasonably suggested17 that they were used by the hordes of people who were in a state of tumat met and tumah hayotzei megufo but who nevertheless wanted to ascend to the areas of Har HaBayit accessible to one with the status of a tvul yom.

Those religious Jews who ascend Har HaBayit today abide by the ruling of Rambam, who states that entering the areas where the Azarah and the Beit Hamikdash itself stood still incurs the punishment of karet.18 However, there is one important aspect of this discussion that has not yet been addressed: the exact location of the historical Har HaBayit (the area referred to as Har HaBayit during the time of the Beit Hamikdash). Where exactly was the historical Har HaBayit located?19 The mishnah in Middot (2:1) states that Har HaBayit was 500 by 500 amot, an area of approximately 62,500 square meters. (An amah is roughly a half-meter.) Today the area referred to as Har HaBayit is a rectangle that is twice as long north-south as it is east-west, covering an area of about 145,500 square meters. Herod had built additions to Har HaBayit in the north and south, creating “spectator” sections for non-Jews. Thus, those who permit entry to the area suggest there are regions in the south (near the El-Aqsa mosque) and north that were clearly added by Herod. If this is correct, then anyone can enter those areas, even one who has not gone to a mikvah. Those who object to ascending Har HaBayit at all assert that there is no way to know with certainty—and archeological evidence can never definitively determine—the precise location of the Beit Hamikdash. Thus, even though a tamei met may technically ascend Har HaBayit, because of the severe punishment (karet) he would face were he to mistakenly enter the Azarah, one should avoid the entire area.20 Therefore some authorities (such as Rabbi Ovadiah Yosef) state that one should not ascend Har HaBayit because we are in a state of tumat met; these authorities agree that a tamei met is not barred from the peripheral areas of Har HaBayit, but they maintain that when one is in a state of tumat met, he should avoid all of Har HaBayit lest he stray into forbidden areas.

Those who rule permissively note that aside from the Herodian additions, there are many areas on Har HaBayit that a tvul yom may enter. The forbidden zone (where a tamei met is not permitted to enter) is a rectangle-shaped area of about 357 amot east-west by 165 amot north-south. Currently, Har HaBayit’s rectangular- shaped compound measures about 500 amot east-west and close to 1,000 amot north-south, thus providing a large margin of error when calculating where one may go.

Some authorities suggest totally avoiding the entire Har HaBayit so as not to potentially violate a different commandment—that of mora mikdash, showing proper awe and reverence for the Beit Hamikdash (Vayikra 19:30; Rambam, Beit Habechirah 7:1-7). This includes (Berachot 54a, 62b; Yevamot 6a-b) not entering Har HaBayit while wearing leather shoes or with a walking stick or purse. Also, one may not spit, have dust on one’s feet, use Har HaBayit as a shortcut or engage in idle chatter while there (Aruch Hashulchan Ha’atid, Hilchot Beit Hamikdash 14: 1-14). Rambam also adds that mora mikdash bars even a ritually pure person from entering the area for no purpose.

In recent years, the question regarding the advisability of ascending Har HaBayit under present circumstances has been addressed in great detail by many leading rabbis. Those who forbid entering the area do so because of the fear of violating the laws pertaining to its sanctity. Advocates insist on extreme caution and intense reverence, but see a value in establishing a connection between the Jewish people and the awesome holiness of Judaism’s most sanctified site. May we be zocheh to the day when there will be a rebuilt Beit Hamikdash on Har HaBayit and all our questions will be answered by those who sit in the Lishkat Hagazit (the Office of Hewn Stone, where the Sanhedrin sat).

This post is for information purposes and the article should be read in its entirety.

I have been ascending the Temple Mount since 1970 in accordance with a specific p'sak by Rav David Chelouche z"l and from shiurim with Rav Shlomo Goren z"l in addition to my own studies and research (see here, and here, for example). So I am glad to be able to upload the above.

See a 2002 "Jewish Action" article by my friend Rabbi Mordechai Rabinovitchץ


UPDATE

Sheikh Raed Salah, leader of the Islamic Movement's northern branch, spoke Wednesday afternoon in front of Muslim students at Haifa University and warned them that Benjamin Netanyahu was intending on completing his plan to gain control of the Temple Mount, which he said the prime minister had tried to do during his first tenure...Salah claimed that the government continued constantly to dig tunnels under the Temple Mount and the al-Aqsa Mosque, and that Netanyahu was planning to complete during his current term what he did not complete during his first one – "to dig additional tunnels under al-Aqsa and rebuild the Temple on the Temple Mount."

Nice guy



eh?