Andrew - November 17, 2008 at 3:09 pm

I think you’ll find that it’s possible to ridicule Dr. Keyes without distorting what’s involved in the case. So why distort?

Keyes acknowledges that Obama has produced the certification of live birth that FactCheck examined. However, Keyes points out that it’s a laser-printed short-form document that merely summarizes what’s in Obama’s original long-form birth certificate. So, Keyes is basically saying: why not show us a copy of the original 1961 birth certificate? The original would indicate things like the specific hospital and attending physician, and stuff like that, none of which is on the laser-printed short-form.

Given all these facts, you can still ridicule Keyes for suspecting that the laser-printed short-form does not accurately convey what’s in the original long-form. I would ridicule him for that, but you could.

I hope that Obama releases the 1961 short-form, to put all of these conspiracy theories to rest. There’s a 99% chance that the original long-form will prove beyond any doubt that Obama was born in Hawaii.

But really, it’s not a complete fantasy for Keyes to see a small probability that Obama was born in Kenya. His parents, after all, were on summer vacation in 1961, and why wouldn’t the mother want to visit the father’s homeland? And if she gave birth there in August 1961, why wouldn’t she want to hurry back to Hawaii to register the son in Hawaii, to avoid the hassle of naturalization? All of this seems like a huge stretch to me, and I’m 99% sure that Obama was born in Hawaii, but what’s so awful if Keyes wants to go for 100% certainty?

Incidentally, we know that Ann Dunham (Obama’s Mom) liked to travel; she went to visit Washington State later in August of 1961 with her newborn baby. It does not seem preposterous at all that she and her husband travelled out of Hawaii together before their son’s birth.

A.W. - November 17, 2008 at 3:36 pm

Well, all of this is an expression of people on the conservative end of things see this as a remarkably poor choice for president. And while the underlying anxiety is justified, I doubt we will be saved from Carter Jr. by a bolt-out-of-the-blue thing like this. Face it, guys, it will be 4 years inside the barrell, and while I hope he will defy logic and prove to be a great president, at this point I will settle for “not f—ing things up so badly that the next president can’t fix it.”

Still…

Why not just turn over the documents and get it over with? Of course some nuts will still say they are faked, etc., but why not produce what rational people want which is the documents?

JP - November 17, 2008 at 4:22 pm

My theory is that all of these rumors and lawsuits are part of a vast conspiracy (orchestrated by the Governator, perhaps?) to manufacture support for an Amendment eliminating the natural born citizen requirement.

More seriously, private employers can’t engage in national origin discrimination; it’s past time we stop letting the drafters of the Constitution do it.

Andrew - November 17, 2008 at 4:42 pm

Howard, you’re recommending that Keyes should sue now in Florida as well? He was on the ballot in both states.

smrstrauss - November 17, 2008 at 4:44 pm

Re: Why not just turn over the documents and get it over with? Of course some nuts will still say they are faked, etc., but why not produce what rational people want which is the documents?

Who,other than right-wing bloggers, has asked to see his real birth certificate? If you say the court cases, well those cases have not been settled yet, so there is no reason why Obama cannot wait until (or if at all) a court asks to see the document.

Before then, he would just be posting it on line, with all the problems that on-line posting has had in the past. Comments along these lines: “The documents are not clear; you cannot see the raised seal, etc.” Moreover, it is possible that the original of the birth certificate now exists only in microfilm, so the posting would just be a copy of the microfilm, which critics would claim was forged.

When there is a court with authority to see a document and with the facilities to hire experts who can verify the document, is the right time to show it.

Until then, the officials in Hawaii have said that the files show that Obama was born in Hawaii.

If Obama had been born in Kenya, there would be a record of his mother arriving in Kenya in the archives of the Kenya government.

The critics of Obama, who allege that he was born in Kenya, have not shown anything like this. All they would have to do is to go to those files in Kenya and show that Obama’s mother had been in Kenya in 1961. But they have nothing. They claim that a tape recording of a long-distance telephone call with Obama’s grandmother proves that he was born in Kenya.

I listened to the tape, and it is not clear that Obama’s grandmother understood the question. The man who was with her during the interview (who is also apparently a relative) says repeatedly that Obama was born in Hawaii. In any case, it is not evidence. She could be referring to Barak Obama senior, Obama’s father, who certainly was born in Kenya. Or, she could simply be wishing that she had been there when Obama was born. Or, she could simply be confused. It is not evidence.

Mike - November 17, 2008 at 5:03 pm

The funny thing is that if McCain had won, that would have raised a more legitimate issue of whether he meets the Constitutional test of being a “natural born Citizen.” The Republican attack dogs are so accustomed to making absurd attacks on grounds that they themselves are vulnerable on — remember Chambliss attaking Cleland? –that Keyes is simply carrying through on their vile, base instincts. An earlier suit trying to raise the same issue has already been dismissed.

smrstrauss - November 17, 2008 at 5:09 pm

Re: Why not just turn over the documents and get it over with? Of course some nuts will still say they are faked, etc., but why not produce what rational people want which is the documents?

Who,other than right-wing bloggers, has asked to see his real birth certificate? If you say the court cases, well those cases have not been settled yet, so there is no reason why Obama cannot wait until (or if at all) a court asks to see the document.

Before then, he would just be posting it on line, with all the problems that on-line posting has had in the past. The documents are not clear; you cannot see the raised seal, etc. Moreover, it is possible that the original of the birth certificate now exists only in microfilm, so the posting would just be a copy of the microfilm, which critics would claim was forged.

When there is a court with authority to see a document and with the facilities to hire experts who can verify the document, is the right time to show it.

Until then, the officials in Hawaii have said that the files show that Obama was born in Hawaii.

If Obama had been born in Kenya, there would be a record of his mother arriving in Kenya in the archives of the Kenya government.

The critics of Obama, who allege that he was born in Kenya, have not shown anything like this. All they would have to do is to go to those files in Kenya and show that Obama’s mother had been in Kenya in 1961. But they have nothing. They claim that a tape recording of a long-distance telephone call with Obama’s grandmother proves that he was born in Kenya.

I listened to the tape, and it is not clear that Obama’s grandmother understood the question. The man who was with her during the interview (who is also apparently a relative) says repeatedly that Obama was born in Hawaii. In any case, it is not evidence. She could be referring to Barak Obama senior, Obama’s father, who certainly was born in Kenya. Or, she could simply be wishing that she had been there when Obama was born. Or, she could simply be confused. It is not evidence.

Eigernorthface - November 17, 2008 at 6:28 pm

Keyes should have just joined the Berg case as an additional plaintiff. This would have eliminated the standing question in the Berg case and allowed the facts to be gotten to sooner.

There’s is no point in Obama offerring up any documents on the internet. It will take a trained document examiner the better part of a week to examine and come to a conclusion about any document he does offer up. I mean a person with 20 years of experience at the FBI or CIA in forensic document authentication — and they will need to obtain a variety of samples for comparison — so let’s just say a week by a highly trained and extensively experienced career professional.

In the meantime, internet speculations, about this or that document are a total waste of time. This sort of thing is done with a big microscope, a reflection spectrometer, lab equipment to test paper content, and ink content, a gas chromatograph, and a variety of techniques involving osmosis such as eletrophoresis. It’s not something that an “expert” from fact check or anywhere else can see on their computer screen.

In any case, the location of Obama’s birth, is the least strong of Berg’s claims — the one least likely to lead to an opinion that disposes of the case.

The strongest Berg claim has to do with Obama’s travel to Pakistan in 1981, when he was 20 years old, on an Indonesian passport. Did this really happen or not? If it did, it is significant because a 20 year old person is not a minor. That act would constitute self-expatriation. The expatriation could be reversed only by later taking the Oath of Allegiance before a judicial or consular officer or the Attorney General.

Anyone taking such an oath would remember where and when they did it. If Obama did take such a oath, he could point us to where and when. Then it’s just a question of looking in the files. They keep files about that. The data is also kept at the State Department either at C Street in Washington, or in their GSA leased warehouse for long-term storage of official records. It’s a five cent problem if Obama took the oath and discloses where and when he did that.

Condi Rice needs to answer four little questions before she certifies the outcome of the Electoral College vote:

1. Did Obama travel to Pakistan in 1981?

2. Did Obama enter Pakistan on an Indonesian passport?

3. Did Obama subsequently take the Oath of Allegiance to reclaim and restore his US citizenship?

4. If so, where did he do that, and when was the oath taken?

The total cost of answering these four little questions is extremely small — it could take as much as a week and cost as much as $100 — including phonecalls to Pakistan and Indonesia.

If Condi Rice knowingly makes a false official statement in certifying the vote of the Electoral College, that would be a felony. If she fails to make a simple and frugal inquiry into the Indonesia/Pakistan/Oath of Allegiance matter, that would be gross and willful dereliction of duty, which would be a serious offense, if not a felony.

The Article II requirement is not a detail. It goes to the issue of good order and discipline in the military. These are people at all ranks from General to private who may be asked to lay down their lives at the direction and command of the President. The Founders thought they needed to know that the Article II requirements were met. The Founders knew more about political philosophy and having amazingly astute foresight than anybody alive before then or since their time — and surely more than anybody alive today — and most certainly more than anybody blogging on the internet, myself included.

Eigernorthface has approved this message 17 Nov 08 1825 EST

Jessica Slavin - November 17, 2008 at 6:53 pm

Yes, Bruce. Careful and advance planning.

Tartuffe - November 17, 2008 at 8:10 pm

I thought birth records were matters of public record. I know I have gotten them for my children w/o any bother. If so, why doesnt the right try and get them?

I have met Keyes in a non-political setting. He is very nice and a complete fruitcake.

Tartuffe - November 17, 2008 at 8:10 pm

I thought birth records were matters of public record. I know I have gotten them for my children w/o any bother. If so, why doesnt the right try and get them?

I have met Keyes in a non-political setting. He is very nice and a complete fruitcake.

Andrew - November 17, 2008 at 8:22 pm

Tartuffe, according to the government of Hawaii: “A certified copy of a vital record (birth, death, marriage, or divorce certificate) is issued only to an applicant who has a direct and tangible interest in the record.”

Andrew - November 17, 2008 at 9:36 pm

Agreed, it is silly for several reasons. First, the “Natural-Born Citizen Clause” is a silly provision of the Constitution (which thus presents an excellent test of fealty). Second, the billion reasons for not disclosing the original birth certificate are silly (and bode ill for the openness of the new administration). Third, some of the wild demands of Obama opponents, such as the demands that the undisclosed birth certificate be subjected to electron microscopy and spectral analysis, are silly (and bring people like Keyes into more disrepute by association).

Anyway, can I post three links here? This is the 2007 laser-printed short-form that President-Elect Obama has disclosed:

http://latimesblogs.latimes.com/.shared/image.html?/photos/uncategorized/2008/06/13/bobirthcertificate.jpg

This is what a 1963 long-form birth certificate from Hawaii looks like:

http://snarkybytes.com/wp-content/uploads/2008/06/hawaii-birth-certificate-1963.jpg

And this is what John McCain’s long-form birth certificate looks like:

http://en.wikipedia.org/wiki/Image:McCain_Certificate_of_Birth.jpg

Supremacy Claus - November 17, 2008 at 11:16 pm

The Supremacy voted for Obama just for this kind of fun. Scott spends his time reading policy manuals for stupid, bogus, pretextual lawyer gotcha.

Now, someone tries to do the same lawyer gotcha to his boy, Obama, and he gets all intense. The best he can come up with is name calling. He has no facts, nor law on his side. It could be easily settled by that totally biased, left wing ideologue Governor of Hawaii.

So what is left for Scott, and the left wing lawyers here? Name calling and personal attack.

joan calhoun - November 18, 2008 at 1:42 am

Kenya has publicly declared that all of Mr. Obama’s documents are locked up in a vault. We know Mr. Obama went to Africa as an American tourist to visit his family. Now I ask you: what could possibly be in the Kenyan vault? Records of his taxi-cab rides? His receipts for hotel meals? Remember, he is only there as an American tourist. The only thing worth locking up in a Kenyan vault, and protecting, would be something of actual consequence, such as his Kenyan birth certificate.

Andrew - November 18, 2008 at 3:06 am

Oh jeez, in my first comment above, I meant to say: “I hope that Obama releases the 1961 long-form, to put all of these conspiracy theories to rest.” Sorry.

Eigernorthface - November 18, 2008 at 10:05 am

A few brief comments on today’s posts:

1. To Andrew: Learning is good. Being serious about serious matters is fitting. Regarding 444 U.S. 263 — I have not studied the case — I’ll accept that your quote from it is an accurate quote “the expatriating act must be accompanied by an intent to terminate United States citizenship” (or words to that effect).

My comment: If this is the law it needs a lot of clarification. Intent is sometimes proved by an objective test which might go like this: A 20 year old non-minor non-mentally unfit person travels on an Indonesian passport and enters Pakistan using that passport. Using an objective test of intent one may reasonably infer from this act that there is an intent to assert Indonesian citizenship. Such an intent is inconsistent with maintaining United States citizenship. He intended to do what he did, and what he did was something that a reasonable man would know was inconsistent with being a United States citizen — therefore using the objective test, as applied to an adult of sound mind acting voluntarily, one may conclude that the requirements of the above cited case have been met.

There is also a subjective test of intent which is sometimes used in the law. This would require that Obama in his own mind specifically sought to expatriate himself — that was what he was trying to do in his own mind. The problem with this test is that it totally vitiates the meaning of the term “expatriating act”. If the significance of any given act, whether it should be deemed expatriating or not, for example, depends on the internal mental state of the actor — an adult of sound mind performing the act under no compulsion — then the words expatriating act have been drained of meaning. People are deemed to intend the natural consequences of their deeds. A reasonable man would know that obtaining and using a passport from a foreign country is an act inconsistent with U.S. citizenship. Obama used such a passport voluntarily — he must be deemed to have intended to use it — and the natural consequences of such use. The Oath of allegiance, if taken later would replace this presumed intent with a new superceding explicit intent — “No .. no I am and want to be a citizen of the U.S. not Indonesia!!!” A perfectly easy oath to take — was it taken? If not, Obama has obviated his U.S. citizenship, and never explicitely taken the only lawful step that would restore it to him. Trying to be a serious learner here.

2. On the subject of conspiracy theory — I don’t see any conspiracy, never have seen such a thing in the facts of this case — you must be confusing my posts with someone else’s. I’ve said that I think the Berg allegations about the passport use and oath of allegiance issue is the strongest part of his case.

3. My hat’s off to Landed Gentry who realizes that significant expertise, equipment and experience are required to tell a genuine document from a fake. I have no hypothesis on whether a long form birth certificate for Obama exists in Kenya, or in Hawai’i. If such a thing is ever found, I hope it will be analysed by a competent forensic lab and qualified document examiner. My four little questions do not relate to Obama’s place of birth, nor are they impacted in any way by the prior career moves of Phil Berg — his prior court cases and books. The four questions stand — nothing else is part of my position. I say the four questions should be answered prior to Obama being inaugurated. I say Condi Rice is the right person to get that job done — she has the duty and the position — she has the obligation and the capacity as U.S. Secretary of State.

3. On the subject of sorting it all out in the Electoral College — I agree they have standing — I’m not sure they have the resources to do the job. What branch are they in? It seems to me the proper branch to do this job in is the Executive Branch that does have the capacity to perform an adequate investigation — Condi Rice has the certify the results coming out of the Electoral College — she should only certify the eligible person getting the most votes in the Electoral College — and she should decline to certify the inelligible person getting the most votes.

If the Executive Branch fails to do a proper inquiry, then the Judicial Branch would be called upon to review what was done and determine if it was Constitutionally adequate. If Condi certifies Obama as the person to be inaugurated, that decision is subject to judicial review — although I do not think the Supreme Court or any inferior Federal Court has the resources to get a proper investigation done. They might be able to issue a Writ of Mandamus specifying how the investigation should be done, if Condi fails to do it right. My four little questions might play a role in such a Writ.

Eigernorthface has approved this message 18 Nov 08 10:02 EST

Bama 1L - November 18, 2008 at 11:11 am

Where did the idea that the U.S. Secretary of State has some role in certifying presidential election results originate? There is no such process. The Congress, with the President of the Senate presiding, does this. People are thinking of state secretaries of state.

Eigernorthface - November 18, 2008 at 2:16 pm

Article II, section 1, paragraph 3 does give the procedure that Bama 1L describes. He may be correct on the issue of Condi Rice certifying the result of the Electoral College vote. As the U.S. Secretary of State she is however ideally situated to acquire the information in the four questions:

1. Did Obama travel to Pakistan in 1981?

2. Did he do so on an Indonesian passport?

3. Did he subsequently take the Oath of Allegiance to restore his U.S. citizenship?

4. If so, where is the paperwork on that transaction — can the written record be produced?

These are questions of international law requiring diplomatic efforts to get the answers, at least for questions 1 and 2. For questions 3 and 4 it is most likely that if Obama did take the Oath of Allegiance the records of that fact would be retained at the State Department long term archives. This would be true even if he took the Oath of Allegiance in a Federal Court, or before the U.S. Attorney General.

So Condi may not be the certifier of the Electoral College vote, but she is certainly the person who should get the first opportunity to come up with the answers to the four questions.

None of those questions are non justiciable.

None of those questions are “political questions” within the meaning of that term under American caselaw. These are straight up matters of fact — he travelled or he didn’t, on an Indonesian passport, or not, then he took the Oath of Allegiance or he didn’t, and there’s paperwork on that or there’s not. No part of these four questions requires or admits of the exercise of political choicemaking or political discretion. They are as much political questions as the location of the Washington Monument is a political question — in other words — they are not at all political questions. They are matters of fact, no more, no less.

Let’s assume that all the certifying is done right there in the Congress, with the President of the Senate presiding over the proceedings. Would these proceedings be subject ot judicial review? Would any participant be subject to a Writ of Mandamus commanding that certain inquiries be made, and successfully brought to their factual outcomes before the final determination is made of who was in fact legitimately elected?

This is a tough question. The Constitution does not specify any set of inquiries that must be made to assure that the requirements of Article II section 1 have been met. Does this mean that the Electors are free to be 100% perfectly negligent about making sure a candidate is eligible? Could they, for example, just glance at a purported document offered up on the internet, and then proclaim themselves to be fully satisfied, no further inquiries needed? How about if they got the newspaper clipping from Hawai’i where rhe Obama Baby birth is announced — could they say “Sure he’s a citizen, see it’s right there in the paper! Let’s move on to other business!”

I would suggest that the Electors must behave as reasonable persons in order to escape judicial review of their actions. They have to take reasonable steps to assure that the Constitution is being complied with. Otherwise, the Court can command them to take those steps. Let’s call that checks and balances. The counting of the votes and the certifying of the winner is a political question as long as the participants do so in a reasonable manner. That has got to be the intent of the Constitution. This means that if they act in an arbitrary, capricious, willful, or grossly negligent manner, then what they do may be amended and guided by Writs from the Courts. This is not like the passage of ordinary legislation. Under Marbury v Madison it is the duty of the Supreme Court to say what the Constitution means, and in this case whether it is being properly complied with.

With regard to the DNC, the FEC, the Obama Litigators — one must observe that if they were trying to create a constitutional crisis, they would not act any differently than the way they have actually acted. The evasiveness, the secretiveness, the stonewalling, the refusal to disclose information freely that people have a right to ask about, and be concerned about, and want answers about. Many organizations in this world do not act in reasonable ways — the DNC is an excellent example at this time, but the Obama Litigators have got to come is a close second.

One way or another it would be far better to resolve this matter before January 20th than after. Condi Rice could play a pro-active role getting the four little questions answered — or it could all be left to a mad scramble at the very last minute.

The possible need to review British law is an interesting twist. So is Obama a Kenyan, and Indonesian, or an American? Hard to say. I don’t think the Electors have the resources to figure it out, and I don’t think they have the leeway to be 100% negligent about it — just nonchalant, sans souci, devil may care about it.

The Supreme Court should head off the crisis by hearing the Berg case on its merits, and if the merits are good enough, directing that a proper investigation be done — probably led by Condi Rice with the assistance of the Attorney General.

Eigernorthface - November 18, 2008 at 8:13 pm

I hope you’ve noticed that none of my posts contain any suggestion about where Obama might have been born or not born. I just have no hypothesis on this matter. For my purposes, I assume for the sake of argument he was born in Honolulu Hawai’i — but I don’t assert that as a fact. I have no way of knowing where he was born.

I do know this — Having served as an international law specialist for the US Navy in the Philippines — Societies that have no tradition of science contain mostly people who have no concept whatsoever about thte idea that there is an objective and verifiable “Truth”.

The people in these societies, which include most places except Europe China and Japan believe that truth is a function of who is asking the question, what they could possibly do to the person they are interrogating — whether a protein bisquit might be obtained for giving this or that answer to make the questioner happy.

You see they assume that we know that these are the rules of the game. We Westerners are so amazingly dumb, we simply project our whole paradigm of “Objective Reality” and “Actual Genuine Truth” onto the situation.

For most people in the world there is only “Situational Reality = the Next Possible protein Bisquit” Everything else is just insanity.

The trick to being an international lawyer, is to not project the Western Ideas about how things are onto the answers given by affants in foreign lands that have no tradition whatsoever of science and no concept whatsover of “objective Truth”.

Just don’t lie — just tell the truth — the *real* truth as it actually is — How many hours did I spend begging foreigners to do just that one thing — but those were my salad days - now I know better — older and wiser, you see?

There is no truth outside the Gates of Eden — Bob Dylan said it best — just put those gates where the borders of science are — the countries outside of science are places where the whole idea of objective truth might as well be from another planet.

So I don’t want to hear from peoople in Kenya, and I don’t want to hear from people in Indonesia. If we can’t figure this one out based on documents and witnesses that are USA or British, French, German, Japanese, Italian, Chinese — then Obama gets in as far as I’m concerned. The Kenya/Indonesia stuff is just dogmeat-nonsense — for $10 I could pay anybody in any of those places to say anything — for a protein bisquit they would say anything. So grandmothers from Kenya — null effect. Affiants from Indonesia — null effect.

Just let me see the American investigation — what FBI and CIA finds out. Let me see the American documents whatever they find in the State Department records about Oaths of Allegiance and who took them.

Whatever bias I have on the reliability of oral evidence from foreign sources is well earned and well paid for, just know that, it’s a fact.

This message was approved by Eigernorthface 18 Nov 08 2011 hrs EST

Sanity - November 18, 2008 at 9:49 pm

http://www.snopes.com/politics/obama/birthcertificate.asp

It’s impossible to reason with conspiracy theorists. Why bother?

Eigernorthface - November 18, 2008 at 10:48 pm

I’ve never suggested any conspiracy in connection with the eligibility of Obama.

I’m ready to accept the idea of no involvement by the Courts. It sounds like it would be part of the Constitution. I see the analogy to Article I section 5, it seems apt and germaine.

OK so if it’s up to the Electors, I guess my question is where are they going to get their data from — what’s the machinery by means of which they will investigate this matter.

The Electors don’t have a State Department, or an FBI, or a CIA to do the fieldwork for them — how will they get it done?

Are they going to just use their intuition? Would it be something they decide from the gut?

Don’t you think it would be better for Condi Rice right now that she has my letter (green card right here in my hand) and maybe a few dozen more asking the same thing — wouldn’t it be better for her to just find out the answers?

What would it cost $100, a couple of phone calls. What would it take a day, two days?

Why does the government always have to be dragged kicking and screaming into doing the obvious simple right thing? Why does Berg have to sue. Why does Keyes have to sue. Why can’t somebody in the government just do their jobs — even without being sued — even without a Writ of Mandamus from the Supreme Court — just do their jobs.

No one ever expected the DNC or the FEC do any job besides taking their paychecks to the bank — that’s their job — no one thinks they are goign to do more than that. OK great — but how about a little investigative work by the State Department and the FBI and the CIA.

I’m not talking about deciding who can run for election. I’m just talking about making sure the Article II requirements are met. I’ve never offered the idea of conspiracy in any of my posts except to say that I have no suggestion along those lines. Obama is a fellow with much audacity — that’s not a conspiracy, right, to be audacious.

I want the electors to do the right thing — whether a Court tells them to do it or not. Your idea seems right to me — I’m happy to keep the courts out of it. But I’m not happy to have an inelligible man inaugurated.

The Founders wouldn’t be either in my opinion. They made Article II the way it was for a reason. Nobody should be asked to die by anyone but a fellow countryman. Any doubts about this matter undermines good order and discipline in the military. It’s a pracHTTP/1.1 200 OK Date: Sat, 04 Jul 2009 20:53:49 GMT Server: Apache X-Pingback: http://www.concurringopinions.com/xmlrpc.php Connection: close Transfer-Encoding: chunked Content-Type: text/html; charset=iso-8859-1

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