Thanks to several who pointed out, publicized and uploaded this birther-busting Congressional Research Service memo, Qualifications for Office of President of the United States and Legal Challenges to the Eligibility of a Candidate, from 2009. Click on the article title above for a wide-screen version or on the Full Screen link below.
Birthers, of course, attack, smear, demean and spin everything that goes against them, and you can see this in an article from Mr. Apuzzo’s web site. See how Apuzzo/Kerchner changes the title to What to Tell Your Constituents in Answer to Obama Eligibility Questions. What was written as an informative research memo is being represented as “talking points memo” directive telling members of Congress what to say. The CRS is being called a “nest of traitors” on some birther blogs.
41131059 MoC Memo What to Tell Your Constituents in Answer to Obama Eligibility by patgund
The Congressional Research Service is a part of the Library of Congress, providing professional, objective and non-partisan public policy research to members of Congress and their staffers. The writer is a qualified constitutional attorney who has summarized the historical and legal material, providing copious footnotes, and showing, by contrast, how shoddy the birther argument is.
– Candidate (1964) Barry Goldwater (R) was born outside the United States, in the Arizona Territory, before Arizona was a state.
– Candidate (1968) George Romney (R) was born in Mexico to American parents.
– Candidate (1980) Lowell Weicker (R) was born in Paris, France to US citizens, though his mother was born in India and her father was a British General.
– Candidate (1916) Charles Evan Hughes (R) was born in the United States to an American mother and a father who was a citizen of the UK at the time of Hughes’ birth. Sound familiar?
Who’s been sitting on this document?
No one has. It just was not posted to Scribd until now. Why? Who knows, who cares?
That screeching sound is Orly.
Mario had to change the name of the document because the truth kills him every time. The “man” does not have a modicum of intellectual honesty in him. Just as he neglected to cite the Berg case to the Third Circuit, he is willing to change the name of a document.
I understand this was an internal memo to some members of Congress. I do not know much about how it came to light except that Mario Apuzzo seems to be an early actor in the story.
Notes say that the document first surfaced on the Post & Email blog by a poster named Bob1943. While there has been some speculation that the document is not authentic, I have it on good authority that it is. I think the quality of the work speaks for itself.
“The writer is a qualified constitutional attorney”
Calling Orly and Mario.
The document has much information and clarifies several questions. It makes an excellent primer for answering peoples questions. American citizenship “at birth” or “by birth” that is all that is need.
The question of presidential eligibility for the children of Americans born overseas is a much more difficult question than that of the children of aliens born in the United States. The authorities addressing the former are few. There is near universal consensus on the latter.
But in Obama’s case he does have a 100% American Mom.
Just a clarification. A child who at the time of birth within a reasonable time is an American citizens “at birth” or “by birth” is all that is need.
When an individual wants to claim American citizenship as an adult (or years after birth) “by birth” seems to be fought with problems. However, this isn’t what is meant “by birth.”
It might be in Canada, but I am not quite sure, but they politely remind parents they a couple of weeks to record their child’s birth. Parents are encourage to record their child’s birth to prevent problems.
What is meant is when a child is granted American citizenship around the time of birth, either in America or aboard. (A fewer words aren’t always better.)
Hopefully, that clarifies my original comment.
Reference (Page 9, “Considering the history …”)
Reference (Page 5, “The weight of scholarly legal …”)
Judging from references that I have seen to Jack Maskell on the CRS website, it looks like he has been with the Library of Congress for more than 30 years and has advised Congress on a multitude of issues.
I found Maskell’s listing at Martindale-Hubbell:
http://www.martindale.com/Profile/attorneys.aspx?alid=17280&ft=1
wow- this is just an amazing document that addresses all of the Birther propaganda.
No one, as far as I can tell. It appears that the memo was distributed to members of Congress who were asking for guidance.
It should be obvious to even the most deluded birther that this is not something which was created at the behest of the Obama administration. If it had been, it would have been widely distributed at the time it was written.
This does read like a very professional and outstanding bit of research: clearly worded, exhaustive, just excellent.
The document was written in April 2009. The document is really old and obsolete because alot of new information has come out since then regarding Obama’s ineligiblity. The lawyer fails to address the multitude and mountain of evidence that contradicts Obama’s Hawaiian that has come out since April 2009.
[ROFL: There is no “evidence” after April 2009 that would meet the criteria in the CRS report. Are you referring to the fake Kenyan birth certificate from convicted forger Lucas Smith? And you’re still banned, Doc.]
Read this in one go, or one gasp almost. Only mistake I found: a missing “(sic)” after the misspelling of the town of Wiesbaden. German is a difficult language. French language is completely missing however, making Mario behave like a French driver at a green traffic light.
This is a great piece of research. Most of the comments at Apuzzo’s blog could be categorized as “attack the messenger”. “CRS, works for a Democratic Congress”, blah, blah, blah. Mario’s response was lame and consisted mostly of links to his previously debunked arguments.
Over at Mario’s misinformation site, he links to Doc and this site. In reading the uneducated commentary, some stand out. For instance…
Mick said…
Interesting that the Solicitor General, Neal Katyal, is not a Natural Born citizen (like Jindal, he was born in the US of Indian immigrant parents). He also studied under Akhil Amar, the Yale professor who has publically argued that native born equals natural born.
http://en.wikipedia.org/wiki/Neal_Katyal
November 5, 2010 3:52 AM
Mick said…
Here is Neal Katyal’s mentor , Amar’s testimony about natural born Citizen from the 2004 hearings.
http://judiciary.senate.gov/hearings/testimony.cfm?id=1326&wit_id=3883
November 5, 2010 3:57 AM
jayjay said…
This “official” memo seems taken from the DOJ CliffsNotes which we have repeatedly seen in the progress of Kerchner et al.
It leans heavily on the concept of English Common Law (as do many of the Flying Monkeys) and cites – among other things – the 1790 law which seems to broaden nbC (which of course is why they cite it) and does not mention – else I missed it – the 1795 law which corrected that very error from 1790 (both of which were signed by George Washington so he must have believed the 1795 law the better one otherwise he’d have vetoed it.
Vattel also seems to be of no merit in the eyes of CRS attorneys drafting this “position paper”. Not a great effort compared to Mario Apuzzo’s definitive compediums on the matter.
Georgetown said…
Instead of a Birth Certificate or Certificate of Live Birth we get an explanation of why it is not necessary to present one. Though anyone born here would proudly show their Certificate.
Notice the phrase page 14,”when one’s parents are not official diplomatic personnel representing a foreign nation in the U.S., would be considered a US citizen “at birth” or “by birth” and thus a “natural born Citizen” of the U.S regardless……”
Bo has never said he was Natural Born. His website says “Native born”. And Fact Check says at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC.
Notice the choice words “by virtue” not the constitutional terms “by birth” or “at birth”. People who are born here are not “virtual births”. And their fathers are not “virtual citizens”. (Incidentally Sr. was a British subject without citizenship.) They Proudly show their Birth certificates and Family name,not hide them, and hide behind a mass of words and legal theory as to why it is not required to present it.
November 5, 2010 9:35 AM
cfkerchner said…
Posted on behalf of BAFAuthor:
——————-
The Congressional Research Service is part of the Library of Congress. It theoretically works for the Congressional Committees which means IT WORKS FOR THE PARTY THAT CONTROLS CONGRESS (in this case the Progressive controlled Democratic Party). Every report they issue (on the request of COMMITTEE CHAIRMEN who want them), it slanted to the ideology of the committee in charge because lawyers are partisan. 90% of them on this project are liberal. The are the lawyers the White House used to research their legal position in the fight to kill the Citizens United lawsuit when they fought McCain Feingold…
What else would you expect?… As long as Kerchner is willing to foot the bill, I am sure Mario will have to repeat his nonsensical arguments.
Oh, the humanity!
i thought they worked for the librarian of congress, james h. billington, a reagan appointee.
The best parts of the CRS report….
“Concerning the production or release of an original birth certificate, it should be noted that there is no federal law, regulation, rule, guideline, or requirement that a candidate for federal office produce his or her original birth certificate, or a certified copy of the record of live birth, to any official of the United States Government; nor is there a requirement for federal candidates to publicly release such personal record or documentation. Furthermore, there is no specific federal agency or office that “vets” candidates for federal office as to qualifications or eligibility prior to election.”
So there is no official requirement that there be some sort of BC or COLB produced….I am sure that bothers the birthers…
“As explained by the Supreme Court of the United States over the course of a number of years, it is well settled from common law Principles of jus soli (“law of the soil”) extant in England and the Colonies at the time of Independence, as well as from subsequent constitutional provisions, as well as subsequent ‘statutory law, that all persons born “in” the United States and subject to its jurisdiction are citizens of the United States “at birth.” As such, any person physically born “in” the United States, regardless of the citizenship of one’s parents (unless such parents are foreign diplomatic personnel not subject to the jurisdiction of the United States), would appear to be a “natural born” citizen eligible to be President of the United States.”
What? You mean that the 3 justices in the Indiana ruling as well as WKA were right? I bet Mario blew his stack on reading that one….
“The “commonly understood” meaning of the term “natural born” in the United States at the time of the drafting of the Constitution may thus be broader than the early, strict English “common law” meaning of that term. Clearly, the term “natural born” subject in British common law, incorporating as it did the concept of jus soli (“law of the soil”), included at least all of those born “in” the county and subject to its jurisdiction. However, as noted by Charles Gordon, former General Counsel of the Immigration and Naturalization Service, whether the “body of English law” in the 1770s was from early common law, from statutory law, or from the common law modified over the years by statutory law, these provisions “were part of the corpus of the English law in existence at the time of the Revolution, which was substantially recognized and adopted by our forefathers.” This common usage and popular understanding of the term “natural born” subject (as employed in England and understood in the Colonies), and the term’s apparent evolution and broadening through statutory law, has thus led several other legal commentators and historians to conclude: “The constitutional Framers had a broad view of the term ‘natural-born’ and considered all foreign-born children of American citizen parents eligible for the Office of the Presidency”; or, as stated by another: “[T]he delegates meant to apply the evolved, broader common law meaning of the term when they included it in the presidential qualifications clause.”
You mean English Common law and not Vattel? The birthers are probably crying about the book that George Washington borrowed from the library or the so called letter by John Jay that mention Vattel is enough to prove that the Constitution was based on Vattel.
“Despite the absence of any formal administrative or legal requirement or oversight at the federal level, or specific state requirement to produce a birth certificate for ballot placement, it may be noted here briefly that the only “official” documentation or record that has been presented in the matter of President Obama’s eligibility has been an official, certified copy of the record of live birth released by the Obama campaign in June o f2008, as an apparent effort by then-candidate Obama to address rumors and innuendos concerning the place of his birth. The copy of this certificate states on its face, as certified by Hawaii health and vital records personnel, that President Obama was born in Hawaii, in the city of Honolulu on the Island of Oahu, at 7 :24 P.M. on August 4, 1961.56 Under Hawaii law, an officially certified copy of such health record is to be considered “for all purposes the same as the original,” and is ”prima facie” evidence of the facts asserted. 58 Since Hawaii became a state on August 21, 1959, all official documentation available at this time indicates that President Obama was born “in” the United States.
With respect to requests to “evaluate” evidence of a foreign birth, it may be noted briefly that there appear to be no official documentary records, or copies of such records, which might be subject to such evaluation. No official documents or records have been produced or forwarded contradicting the prima facie indications of President Obama’s birth in Hawaii, as provided in the official certification (or certificate) of live birth released by the Obama campaign. No official record of birth from any other jurisdiction or country has been produced, no contradictory health record or hospital record has been forwarded, no official record of travel (such as a passport record or passenger manifest) appears to exist placing President Obama’s mother in a foreign country at the time of the President’s birth. Rather, there have been several theories, allegations, and self-generated “questions” concerning the place and circumstances of President Obama’s birth which, as noted in court decisions, have been posited on the Internet and “television news tabloid[s),” and upon which several of the lawsuits were based.”
That says it all….NO evidence of any sort of Kenyan birth was ever presented….
And no dual citizen nonsense…
“Merely because a child born within the United States could have, under the operation of a foreign law, been a citizen also of that foreign nation because of a parent’s nationality or citizenship, would not affect the status of that child as a U.S. citizen “at birth” under the 14th Amendment and the federal nationality laws, since the citizenship laws or rights of other nations could not influence and impact the United States’ own determination of who its citizens at birth would be.”
Yes, as we have been saying all along- Why would the US give the right to decide who can run for President to a foreign country? Only Birthers believe that North Korean law should trump US law… They hate Obama so much, some have even prayed for foreign invasion and conquest of the United States.
When you strip bare their pseudo-objections, the only thing left is naked racism (or xenophobia since it includes non-Christians and Europeans of Mediterranean descent).
As I pointed out before: the Ku-Klux-Klan.
How could ANYONE read even just the quotes cited in the CRS study from Perkins v. Elg and NOT GET the point that being born in America (and not being the child of a diplomat or invading army) makes someone a natural-born Citizen, eligible for the Presidency, and that everything else is just so much bullcrap? How much more on point do they need a ruling to be, huh?
A new major recommended diary on Daily Kos deals with the Rubio/Jindal conundrum posed to birthers:
http://www.dailykos.com/story/2010/11/7/918596/-Birthers-Confront-the-Rubio-Jindal-Paradox
Worth reading.
Interesting discussion, but I find the topic covered better by this blog & NBC’s.
Another interesting idea: Since SCOTUS has, in effect, granted personhood to corporations what would prevent a corporation from running for President? That might bring into sharp focus the stupidity of their decision.
I don’t know whether this is hilarious or sad, that this person does NOT know the difference between Virtue and Virtual.
“Since SCOTUS has, in effect, granted personhood to corporations what would prevent a corporation from running for President? That might bring into sharp focus the stupidity of their decision.”
I know we have excellent lawyers reading this- could someone point me to the original decision that made corporations the legal equivelant to a person for practically all purposes?
I have always been curious, and have never actually seen the decision.
Good God! After reading the garbage Mario spews, I feel the need to take a shower. It’s one thing for an incompetent like Orly to hook onto junk law arguments, but Mario went to a real law school. There is no excuse of for him. Attorneys like him give ambulance chasers a bad name. There is no way on earth he could believe the garbage he writes. Attorneys like him are the reason why people think lawyers are scum.
obviously the corporation would need US citizen co-founders, male and female. i doubt a same sex conglomerate would be considered a NBC.
> could someone point me to the original decision that made corporations the legal equivelant to a person for practically all purposes
I don’t know how the basic principles of personhood are in the US; in Germany, for example, we distinguish between natural persons (that dreaded n-word again ;)) and “juristic” persons (legal entities) – corporations, religious organizations etc.
For most intents and purposes, these are the same, namely in most aspects of civil law. (Of course a company cannot commit a crime, only natural persons can.)
This extends to political rights, but most laws have been codifying for decades what applies to natural persons and what to legal entities. So a corporation has the right to free speech, but cannot run for a political office.
I suppose the SCOTUS did pretty much state the same.
It makes perfect sense to me. Dr. Con wrote about it before – from the birther perspective, everything has to be framed in a way that begins with the “fact” that Obama is not eligible. When confronted with something that doesn’t match that assumption, the question then becomes “Given Obama is not eligible, what set of circumstances must be true in order for (the inconvenient thing that just cropped up) to have come before me?”
This is how otherwise competent people dream up ever-growing conspiracies. When the Republican governor of the state says he was born there, she must be a plant. When Judge Carter gives Orly advice on how to frame her motions, then rules against her, it must be that he hired someone from Obama’s legal team (as if Perkins Coie was some small two man operation and not a behemoth of an organization) to be a minor clerk in his court and that person “Got to him.” When Dick Cheney forgets to call for objections to the electoral vote count, because none had been submitted, it was because Cheney had a “plan” to leave a legal avenue for birthers to exploit years later, except the corrupt legal system won’t let them use it. When the Director of Statistics says the vital records information matches that on the COLB, they assert that she is indirectly saying the COLB is forged since she didn’t say “The COLB is genuine” (and ignore the fact that she says that the information on it is valid).
Apuzzo actually knows law, but he begins with the presumption “Obama is ineligible, period” and not “What does the law say about eligibility, prima facie evidence, citizenship, etc.”
I believe you are referring to Santa Clara County v. Southern Pacific Railroad. http://en.wikipedia.org/wiki/Santa_Clara_County_v._Southern_Pacific_Railroad
No, there was a more recent one, just last year I think.
I saw that too. I was too dumbfounded to even comment about it.
OK, you meant Citizens United v. Federal Election Commission ? http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission
I like this part of the CRS report:
“No official record of birth from any other jurisdiction or country has been produced, no contradictory health record or hospital record has been forwarded, no official record of travel (such as a passport record or passenger manifest) appears to exist placing President Obama’s mother in a foreign country at the time of the President’s birth.”
One of my pet peeves with birfers is their laziness and passive / aggressiveness. I was banned from FreeRepublic after I suggested they try getting evidence for their accusations, specifically passenger manifests. (All international carriers keep passenger manifests. That’s how we know the names of the passengers on RMS Titanic.) Their reply was that it would be useless, the Vast Conspiracy has gotten there already and changed the records, and you’re hereby banned.
Yeah, I think that is the one sfjeff is referring to.
http://www.nytimes.com/2010/01/22/us/politics/22scotus.html
Yeah no surprise there Bob I was banned on my first post in reply to a birther
Well the arrant cowardice and insanity of the Biorfoons continues over at GW.
I offered the Orly lover “Logia” a $200 bet that the Kerchner case with the SC is going to get canned.
$200 from me versus 30 days without them posting at GW. Paypal set up, just needs to get a trusted 3rd party to hold the cash.
Alas it appears that in Birfoon Reality (resembles real reality only in name) I am a penurious, welfare “whoor” hippy and the dodging is highly entertaining.
Black Lion and Dr Kenneth can attest to my tie died t-shirt wardrobe and general lack of pennies from the last Manhattan get together……….8-)
Oh yeah Bovril totally reaked of that mary jewana and had glassed over eyes
“Birthers, of course, attack, smear, demean and spin everything that goes against them”
Or – it could just be that they disagree with the document…and you see their disagreement as something much more nefarious, as always and as expected.
According to another yet intriguing document, the American Law Division of the Library of Congress “lawyers and paralegals work with federal, state, and international legal resources in support of the legislative, oversight, and representational needs of Members and committees of Congress.” Well, well, well – and just who was in charge of Congress and the funding of the American Law Division when this document was produced? Let’s see….was it…oh yes, it was the Democrats!!! Hummmm…that’s interesting!
“In addition, the division prepares The Constitutionof the United States of America: Analysis and Interpretation (popularly known as the Constitution Annotated).” Well, let’s see, I wonder if their ‘interpretation’ depends on which party is in control of Congress and their funding? Knowing how our government operates, I would bet money on the answer to that question is YES.
You all have parts that you ‘like best’. So the part I like best is that it is produced by a governmental body that was relying on funding from the party in charge of Congress at the time (Democrats) to bolster/legitimize Obama, who – let’s see is a DEMOCRAT! What an odd coincidence – don’t you think?
Wonder what that document would say if Republicans were in charge of Congress, thus funding of the American Law Division at the time the document was produced?
Well – let’s see, would that make me only half of a naked racist? I guess that would depend on my race though – right? And since you don’t really have a clue about my naked race, how would you know if I’m a naked racist, half a naked racist, or just plain naked? If I’m black, or half black, am I a naked racist if I think Obama is not a NBC? Perhaps my white half is a naked racist against his black half. What if my black half disagrees with his black half, what does that make me then? A fully clothed racist?
OMG – what if I’m half Black/Vietnamese with only a shirt on and no pants? What then?
I think perhaps you suffer from racist paranoia. Yes, there are some people out there who are racists, but the majority of those that don’t believe Obama is a NBC could care less if he were pink polka-dotted with a little Greek mixed in. His race has absolutely nothing to do with it.
The Shrub’s lies & interference in scientific documents produced by the Government created a very dangerous precedent, that what the Government produces is prone to political interference. We need to get back to the time when we could believe in the impartiality of our Government agencies. I fear it will be some time before that can happen due to the intense polarization we have now.
It would say the same thing, of course.
The Librarian of Congress is James Hadley Billington, who was appointed to the position by Ronald Reagan in 1987.
http://www.loc.gov/about/librarianoffice/
Under his stewardship, the Library of Congress has never been accused of being influenced by politics.
The attorney who wrote the memo, Jack Maskell, has been with the Library of Congress for more than thirty years, serving under both Republican and Democratic administrations.
To suggest that those honorable men succumbed to political pressure is reprehensible, and of course there is not a shred of evidence to support it. Then again, when did lack of evidence ever deter a birther?
An arrogant, delusional birther troll crapped on the carpet again. Swat it on the nose with a newspaper and send it outside with the other dogs.
Actually, trolls are usually a greenish-gray. Try again, “Scott.”
well if you don’t like the message, what recourse do Birthers have but attack the messengers?
Honest republican lawyers can read what the courts have said on the subject as easily as democratic lawyers. See Theodore Olson, Senator Hatch, Senator Nichols and Senator Graham.
Any Republican Congressman or Woman can request a follow up report from the CRS after the Republicans take control of the House in January.
In the meantime, they have very good medications for treating paranoia these days, I suggest you look into that.
Lol…Funny…Bov is Mr. GQ….But the birthers have to believe that all of the Obama supporters are poor or on welfare. It doesn’t compute for them that there are many well educated individuals that may not agree with the President, but know that he is eligible and the birthers are just a bunch of buffoons…
You are free to disagree with the document. However, that’s not what you proceed to do…
You attack those who produced the document, asserting bias, and raise not word of objection to its substance.
Of course, that which does not tell them what they want to here is considered bias. It is quite a simple process:
Obama is different from them (pick a reason, many to chose from).
Obama is therefore foreign to them.
Obama is a foreigner.
Obama is not eligible.
Therefore, anything that does that shows he is eligible is bias because he can’t be eligible. He is foreign to them.
Yeah, right, dream on.
The fact remains, however, that Mario’s definition of NBC is exactly that described in the founding documents of the KKK.
If it quacks like a duck, etc.
No white man ever had to show his birth certificate.
The lunatic fringe at American Grand Jury is posting the document and implying that it is the document needed to once and for all remove Obama from office since there is no requirement in law for a candidate to be vetted. So to their twisted thinking Obama was never vetted. This conclusion was pulled from the same place they pull their other Obama smears. I was banned from AGJ for disagreeing with their illogical postings. The cowards only allow those that agree with their racist propaganda to post on their site. These cowards were also supporters of the Pastor Manning circus in Harlem.
See page 5:
(emphasis added)
The 108th Congress (2004) was held, House and Senate, by the Republicans. Their report analyzing the Constitution agreed with the majority of scholars.
You can read what they wrote, here. The birther notion that the children of aliens are ineligible was so completely a non-issue that they didn’t even mention it. They simply note that all Presidents since van Buren were “born in the United States…” (nb: they don’t say all Presidents since van Buren were “born in the United States to two citizen parents). They do, however, cite Gordon’s 1968 article where he writes, “It is clear enough that native-born citizens are eligible and that naturalized citizens are not.”
There have been no cases since 2004 that would change the law. The only thing that has changed is that now a black Democrat is the President. Which of those two characteristics do you think would/should change Republicans’ view of the law?
It would proably say the exact same thing (and as Greg pointed out, they did). You see there isn’t a single Constitutional scholar out there that remotely supports the birthers’ arguments. You can “disagree with the document” all you want. The problem is that your “disagreement” has no support in the law. Why can’t birthers find any scholars to support their views? If Mario, Orly, and Donofrio are so brilliant in their legal analysis, why haven’t they submitted their brilliant writings for publication in law journals they way real scholars do? Again, show me ONE legitimate constitutional scholar that has been published in the last century that remotely suggests that with the exception of diplomats, that parentage matters one bit for establishing natural born citizenship. Hell, I’ll even settle for a student note published in a journal at this point. Something…anything. Since you can’t, there is only one conclusion. Your “disagreement” is not based on the law, so it must be based on something besides fact and law.
As the saying goes, you’re entitled to your own opinions, but not your own facts. And it is a fact that the birther arguments are without merit.
But in the birthers world, the screaming and screeching howls written on a blog by an ambulance chaser is more important and valid than scholarly discussion in prestigious legal journals.
Just like an out-of-work Tulsa UHF channel TV weatherman knows more about climate change than peer-reviewed scientists.
And from hit and run bigoted birther trolls in deep denial there’s even less credibility if that’s possible.
Cass Sunstein, Obama’s Administrator of the Office of Information and Regulatory Affairs, proposes that conspiracy theories cannot be cured without “cognitive diversity”; in line with Sunstein, we need to increase the “cognitive diversity” available to readers of the Obama Conspiracy Theories blog, and reduce their risk of what Sunstein calls “informational isolationalism”, whereby sufferers “know very few things and what they know is wrong”. Theories only arise in the absence of facts, so it’s not irrational to question the contradiction between claims that privacy issues motivate Obama’s reluctance to officially release either his short form Certification or long form Certificate and Obama’s backdoor issuance of purportedly exact images of his Certification (COLB) allegedly containing that very same “private” information; especially when Hawaii DoH has the authority and, under Hawaii Freedom of Information (UIPA), the legal duty to issue a non-certified copy of Obama’s birth certificate to anyone, yet continues to evade the law by refusing so to do. What is certainly irrational is deriding ALL who observe these discrepancies as mad, bad, H.A.D., or sad when opinion polls show that a significant proportion of Democrats are among the majority of Americans who are not convinced that Obama was born in the US. Please note that Obama’s politics, spiritual beliefs, and race are not mentioned in connection with, and are irrelevant to, the issues discussed below, and no insults have been made. Presuming WAYK is not a Muslim, a Democrat, or of African(-American) heritage betrays unconscious prejudice. It is further unconscionable prejudice to stereotype all “b*******” as intellectually challenged or mentally ill (when those so afflicted deserve every respect) while in the same breath hypocritically venting self-righteous fury on anyone merely suspected of being secretly disturbed by the amount of melanin in Obama’s epidermis.
“…birther-busting Congressional Research Service memo…” Dr C
There are many problems with the CRS document. For example:
A) The CRS memo was written in April 2009, and has been superseded by new data (see below).
B) The memo opines that “natural born citizenship” MAY have encompassed the meaning given to it by Blackstone’s Laws of England on the basis of ENGLISH common and BRITISH statute law, while ignoring that Blackstone in the very same volume referenced the fact that, unless specified, British statutes did NOT apply in America [“the [American colonies] are subject however to the control of the parliament; though (like Ireland, [the Isle of] Man, and the rest) not bound by any acts of parliament, UNLESS PARTICULARLY NAMED.” Emphasis applied http://tinyurl.com/2vj8xm3 ]; or, in the words of a later scholar, “At the beginning of the seventeenth century, it was an accepted proposition by the Crown lawyers that English laws were not necessarily in force in non-English Crown dominions and that an act of the King in Parliament did not extend to the non-English possessions unless specifically declared to extend thereto.” [“British Statutes in the Emergent Nations of North America: 1606-1949”, Elizabeth Gaspar Brown, The American Journal of Legal History, Vol. 7, No. 2 (Apr., 1963)]; given NO nationality statute in British law during the Eighteenth Century (except the British 1740 Naturalization Act) explicitly referenced the American colonies, only the common law determined who was an American natural born subject of the King, and the common law excluded anyone of American parentage born outside the King’s dominions being a natural born subject.
C) The memo references “scholarly opinion” (none of which comprehends the inapplicability to the American colonies of British nationality statutes) concerning the natural born or constitutional citizenship of foreign born persons, and cites in support the dissent in Rogers v Belli SCOTUS 1971, whereas the majority view of SCOTUS in Rogers v Belli was that “[In] United States v. Won Kim Ark…Mr. Justice Gray has observed that…'[the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization’. Thus, at long last, there emerged an express CONSTITUTIONAL DEFINITION of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did NOT apply to any acquisition of citizenship by being born abroad of an American parent…” [Emphasis applied] Indeed SCOTUS in Wong Kim Ark (quoting Binney) affirms: “The notion that there is any common law principle to naturalize the children born in foreign countries, of native-born American father and mother, father or mother, must be discarded. There is not, and never was, any such common law principle.”
D) The memo claims that it is sufficient to establish Obama’s Presidential eligibility on the basis of delayed vital records legally recognized by the “preponderance of the evidence”, whereas the Constitution mandates that the President “shall” be a natural born citizen. SCOTUS has repeatedly held that “the mandatory shall’ . . . normally creates an obligation impervious to judicial discretion.” [Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 1998]. Consequently the Constitutions’s plain meaning requires the highest level of proof i.e. one eligible to the Presidency must be natural born beyond a reasonable doubt. Given delayed registrations in Hawaii are not prima facie evidence and an official investigation, as Hawaii law requires, had yet to be conducted into any Obama delayed registration at the time the CRS meno was written, Obama’s eligibility status would have been unestablished. Presumption of citizenship only applies where citizenship has been previously established.
E) The memo fails to consider the problem of Obama being elected on a false prospectus if a delayed birth registration and contingent issues were not made known to the voters.
f) The memo does not ask: why, if Obama’s registration had been delayed, were the purported images of Obama’s alleged COLB unreflective of that fact, contrary to the laws of Hawaii?
My position has been that whatever Obama “mistakenly” claims for himself, given his parents’ marriage was bigamous under British Kenyan law, his illegitimacy in British jurisdictions meant that Section 32(2) of the British Nationality Act 1948 precluded his British citizenship by descent (i.e. not a dual citizen); and by virtue of the decision of SCOTUS in Erie v. Tompkins (1938) requiring federal courts to identify the sovereign American legislative or constitutional instrument for every rule of decision, the opinions of legislators or scholars of any era or continent (e.g. Vattel), whether on paper or in debate, do NOT have the force of a legislative or constitutional instrument and so cannot legally define “natural born citizen”; given no specific definition of “natural born citizen” exists in the constitution or federal law then, via the Tenth Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”), the only legal instrument available to federal courts and cognizable by the Framers is the common law, as incorporated into state law by state reception statutes at Independence and subsequently. Indeed, given only “such parts of the common law…as together did form the law [NY]…brought over by the first settlers [NC], prior to the fourth year of the reign of King James I [VA], heretofore adopted in practice [DE]” and not the entire British common and statute law were received, had the reception statutes included British nationality law Congressional naturalization of the foreign-born in 1790 would have been superfluous or necessitated explicit repeal. This still leaves the question of Obama’s possible foreign birth and his Presidential eligibility open.
Under 1961 Hawaii law LOCAL registrars were mandated to take record of all births claimed in the jurisdiction from information supplied by medical attendants, parents or, failing these, anyone with such knowledge, in order to prepare and file a certificate; in the case of a delayed filing it was also required that an AFFIDAVIT from the father, mother, or some other authority on the birth-facts NOT PRESENT AT THE BIRTH be submitted to the registrar GENERAL and permanently retained (with other corroborative evidence, where prudent). The illogicality at the center of Obama’s vital records is that:
a) online images of Obama’s alleged COLB (which Dr C has every faith are genuine) claim Obama was registered on TUESDAY the 8th of August, and Obama allegedly claims in writing and through Abercrombie he was born in Kapiolani Hospital (a claim which Dr C believes is true), while Kapiolani only registered its births once a week on FRIDAY: on this basis it is impossible that Obama was born in Kapiolani Hospital;
b) Hawaii DoH has confirmed through UIPA (Hawaii Freedom of Information) that Obama’s registration excludes a hospital birth by having been DELAYED more than thirty days, since hospital births under 1961 DoH regulations were to be registered within seven days; and
c) Hawaii DoH has also confirmed through UIPA that it holds no affidavit, medical, or other evidence in support of Obama’s delayed registration.
If Kapiolani never registered newborns on Tuesdays, and no affidavit, medical, or other evidence is held by DoH to support Obama’s delayed registration, it is clear that either Obama’s middle-class family were either unbelievably negligent during the complex process of their only child Ann’s pregnancy and labor by not providing any pre- or post-natal care IN HAWAII, not even arranging an immediate doctor visit to examine the newborn and stitch the mother, or Obama and his mother did not receive any such care IN HAWAII; whichever explanation is considered more probable, Obama’s registration was not legally completed in Hawaii in August 1961. How then to rationally account for the purported online images of Obama’s COLB and Obama’s written claim, which offer a different story? It is to these online images and Obama’s written claim, both inconsistent with the facts, that members of Congress on the advice of the CRS memo have referred their constituents in the matter of Obama’s presidential (in-)eligibility.
Possible responses to the foregoing (and problems with these responses):
1. Claim Hawaii DoH has not released confirmations of Obama’s delayed and amended registration and did not confirm the lack of any supporting affidavit or medical evidence. (Under UIPA denial of access to records confirms the existence of the records; if no such records exist agencies must state that there are no records responsive to the request. Access via UIPA to Obama’s delayed and amended vital records and ancillary processing records has been denied. Dr C has been sufficiently persuaded of such communications’ honesty to quote from a DoH UIPA response sent to a “birther”. In pursuit of truth I have many times invited skeptics to obtain from Hawaii DoH UIPA responses which dis-confirm the delay and amendment of Obama’s vital records: none have been forthcoming, even before Hawaii DoH recently secured a bizarre, unjustified, unprecedented, and legally dubious legislative amendment restricting Freedom of Information in Hawaii, allowing it to ignore UIPA inquiries specifically concerning Obama.)
2 Claim that Kapiolani may have registered Obama (for unknown reasons) on some day other than Friday, 11 August. (Occam’s Razor chooses the simplest explanation consistent with the facts. Except for one public holiday many decades ago, all known Kapiolani-originated certificates throughout the twentieth century are the usual weekly FRIDAY registrations, in keeping with Hawaii DoH regulations. Given Obama was registered on a Tuesday, he was not registered by Kapiolani Hospital.)
3. Claim that August 1961 Hawaii press announcements prove Obama’s birth registration was not delayed and prove Hawaii Obama’s birth, as the information came direct from DoH. (The alleged newspaper announcements of Obama’s birth did not give the location of his birth. According to its own regulations and Hawaii law, Hawaii DoH did not have the legal authority to release to local newspapers lists of registered births until 1976; prior to 1976 families were entirely responsible for birth announcements and there is not a shred of evidence to the contrary. Nobody has ever seen a preserved original PAPER copy of the newspaper editions alleged to carry the announcements of Obama’s birth; of the six or seven microfiche versions in public libraries in the US all can be accessed and physically handled by individual readers completely without supervision. In 2004 the Honolulu Advertiser – which was shut down in 2010 – closed its archives to the public.)
4. Claim that Hawaii DoH Director Fukino officially pronounced that Obama was born in Hawaii. (It is significant that Fukino’s statements do not give the YEAR that Obama’s birth was registered. If we are expected to believe that Fukino was telling the truth about Obama being born in Hawaii, then we should also believe Fukino when she says it’s illegal for DoH to reveal or verify in part or whole Obama’s vital records. Before and after her July 2009 statement Fukino (often through DoH spokesperson Okubo) claimed it was illegal under HRS 338-18 for DoH officials to reveal or verify in part or whole Obama’s vital records; therefore, in making her July statement concerning Obama’s vital records, Fukino was either acting illegally or had previously lied about such statements being illegal. If Hawaii DoH has made illegal disclosures of Obama’s vital records, then what other illegalities has Hawaii DoH perpetrated? Conversely, if it was not illegal for Fukino and Okubo to disclose elements of Obama’s vital records (although it has been unequivocally and officially stated – e.g. on August 14 2008 Okubo cited the alleged legal advice of the Hawaii Attorney General, that such disclosures are illegal – what other lies have Fukino and Okubo told? Fukino might seek legal cover by claiming, in line with the precise language of her statement, that not she but Obama’s vital records were themselves verifying his birth in Hawaii; unfortunately, because Obama’s vital records were delayed (late) and amended, under Hawaii law (HRS 338-17) they are not probative of the facts of his birth, which facts must be determined by any judicial or administrative body or official before whom the certificate is offered as evidence, which necessarily excludes Hawaii DoH Director Fukino. Merely telling untruths does not get Fukino and Okubo off the hook, given official liars have proved notoriously susceptible to further illegalities: it may explain why Hawaii DoH refuse to issue documents and records as required by law. If DoH were acting lawfully we can be sure that Dr C would possess and cite the appropriate Hawaii documents, rather than California’s “Out-of-Hospital Package”, to divine Hawaii DoH policy concerning home births.)
Furthermore, as I have written elsewhere, there are several ways whereby Obama’s suppositional Hawaii COLB, even if produced in a paper form consistent with “its” alleged online images, is not admissible evidence of the facts of his birth in a court of law. Details on request.
Umm, wasn’t this a memo of “TALKING POINTS” written for and by the administration of BARRACK OBAMA,BARRACK HUSSEIN OBAMA, BARRY SOETORO, BARRY SOEBARKAH ?
The document is written for all the lawyers in congress to read and contemplate for argument against any person daring to ask WHO IS HE? Tell me something Congress, do any of you know who he is? And if you do, why are you covering for him? And to those bashing every citizen coming forth to ask the question, Do you know who he is? If he is so forthright WHY ARE ALL HIS DOCUMENTS SEALED IF IT’S NOT ABOUT CITIZENSHIP? WHAT IS IT ABOUT?
Orly Taitz is a very brave woman to bring the issue to the people and warn that America may have elected a usurper and if she’s right, the president must step down or be removed.
I thought Sven and his multiple personalities were banned from posting.
The best thing about Orly Taitz is that she got fined $20,000 by a conservative federal judge in Georgia who was appointed by George W. Bush and who previously had been a conservative Republican state Senator from Columbus, Georgia.
Here’s what a different federal judge, appointed by Ronald Reagan had to say about Ms. Taitz: “This is one of several such lawsuits filed by Ms. Taitz in her quixotic attempt to prove that President Barack Obama is not a natural born citizen as required by the Constitution. This Court is not willing to go tilting at windmills with her.”–Chief US District Court Judge for the District of Columbia Royce C. Lamberth in his Memoradum Opinion in Taitz v Obama
I say let “Sven” post regardless of which of her multiple personalities she uses. It’s fun to have a pinata to whack!
If anyone would like to jump in and help me debate Mario, here is where he is posting now:
http://gatewaypundit.firstthings.com/2010/11/funny-indian-official-introduces-obama-as-a-fellow-kenyan/#comment-223369
(They do not delete comments.)
Let me be clear here. I did not ban Sven; I put him in moderation, meaning that his comments are reviewed before they appear.
The problem I have been having with Sven is that I put up an article that I consider important and worthy of discussion and in almost no time Sven posts one of his things about loss of nationality, totally off topic. Then all I see from then on on the thread is people complaining about how dumb Sven’s comments are. The article doesn’t get discussed or the discussion is hard to follow.
So Sven is free to comment on the articles, so long as he doesn’t thrown one of his irrelevant crackpot theories, and he is free to throw in one of his crackpot theories after the discussion has run its course. He is not free to hijack the discussion.
And FYI, Sven hasn’t posted anything since I put him in moderation. This may be incidental, or it may indicate that being a troll was his only reason for being here, and if denied that, he’s no longer interested.
Ummm, no.
The Congressional Research Service works for the Congress, not the Administration, and they are not in any way part of the Administration. They do research for members of Congress and their staffs upon request. “Talking points” are suggested things to say. The CRS doesn’t make or promote policy, they provide objective, non-partisan research. As somewhat of an expert on the topic, I find that they have done very good research.
in a word, no. it was put together by a department of the library of congress ( headed by a reagan appointee ) for congress. it had nothing to do with the executive branch.
http://www.youtube.com/watch?v=gLQg7G3hkGY
Sorry, your comment got hung up in the spam filter.
Fascinating article in THE NATION explaining why it’s ENTIRELY about racism:
http://www.thenation.com/article/agent-intolerance
The money-quote:
“Seeking to capitalize on mounting evangelical discontent, a right-wing Washington operative and anti-Vatican II Catholic named Paul Weyrich took a series of trips down South to meet with Falwell and other evangelical leaders. Weyrich hoped to produce a well-funded evangelical lobbying outfit that could lend grassroots muscle to the top-heavy Republican Party and effectively mobilize the vanquished forces of massive resistance into a new political bloc. In discussions with Falwell, Weyrich cited various social ills that necessitated evangelical involvement in politics, particularly abortion, school prayer and the rise of feminism. His pleas initially fell on deaf ears.
“I was trying to get those people interested in those issues and I utterly failed,” Weyrich recalled in an interview in the early 1990s. “What changed their mind was Jimmy Carter’s intervention against the Christian schools, trying to deny them tax-exempt status on the basis of so-called de facto segregation.”
It’s worth also reading this article on AlterNet which shows how the racists are being manipulated by big business:
http://www.alternet.org/news/148795/how_republicans_and_their_big_business_allies_duped_tens_of_millions_of_evangelicals_into_voting_for_a_corporate_agenda?page=entire
Money quote:
“And fear-filled white Americans don’t get anything in return, unless you count their fleeting visceral pleasure of putting “that uppity black man” in the White House in his place.”
Mario and the others are just one very tiny tentacle of the same octopus.
This statement actually shows you how wrong you are, WAYK.
The COLB is directly admissible of the facts of birth. It is Prima Facie evidence in any court in the land of the facts contained in it, including the place of birth (Honolulu, Honolulu, Hawaii). If you’d like to see, take a look at the Federal Rules of Evidence.
1. Rule 902 (Self-Authenication) – Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
That means that the COLB (which has the seal of the Hawaii Departmnet of Health, and a signature purporting to be an of the authentication) needs no further authentication.
2. Rule 804 (Hearsay Exceptions) – The following are not excluded by the hearsay rule, even though the declarant is available as a witness: Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.
That describes the COLB. If the COLB was offered into evidence, it would get past both the Hearsay rule (it’s a recognized hearsay exception), and the authenication rule. It’s admissible in a court of law.
And your best evidence (which I’m persuming that you’d be going for) does not apply. An official document from the Hawaii Department of Health would be the best evidence of place of birth.
It would be admissible.
But anyways, the statement I quoted alone shows you how much you actually know about the law – Absolutely nothing. Therefore, forgive me if I take actual lawyer’s advice and statements of admissibility over your statements.
No it hasn’t.
Common law is not statutory law. Blackstone is acknowledging that the colonies may be operating under statutory law designed especially for them. He is not saying that common law did not apply. And the common law defined anyone born INSIDE the King’s dominions as a natural born subject.
Why would that be of interest to the situation in 2009 when there is ample American case law that does comprehend the relevancy of pre-Independence British law (both common and statutory)?
Um, I’m not sure where you are going with this. What relevance does it have to whatever argument you are trying to make? What relevance does it have to Obama, who was born in Honolulu, Hawaii, USA? Whether foreign born children of citizen parents are ‘natural born’ or ‘automatically naturalized at birth’ is irrelevant to Obama.
I’m having trouble finding any reference to ‘delayed vital records’ or ‘preprondrance of the evidence’ in the memo. Please help me out with a page reference, thanks.
On the other hand, I have no trouble at all finding the following statement in the memo:
The copy of this certificate states on its face, as certified by Hawaii health and vital records personnel, that President Obama was born in Hawaii, in the city of Honolulu on the Island of Oahu, at 7:24 P.M. on August 4, 1961. Under Hawaii law, an officially certified copy of such health record is to be considered “for all purposes the same as the original, and is ”primafacie” evidence of the facts asserted”. Since Hawaii became a state on August 21, 1959, all official documentation available at this time indicates that President Obama was born “in” the United States.
Correct. And for two reasons: 1) there is no evidence of a any such ‘false prospectus’ or delayed birth registreation or ‘contingent issues’ in existence and 2) If evidence for such a ‘false prospectus’ were found, the “problem” would be a political problem and it is outside the brief of the research service to comment on political questions.
I fail to understand the relevance. In Hawaii, a registration is “delayed” if it is filed over one year from the date of birth. Obama’s birth certificate was filed 4 days after his birth.
Is this another factoid from the liars who fool the gullible birthers?
This is an example of how birthers try to create facts from convoluted arguments over non-existence, while ignoring the facts that are in front of their face. I do not doubt the underlying documentation about what Hawaii has refused to say, but concluding specific items (certificate was amended and delayed) from “nothing” is faulty reasoning.
The fact is that Barack Obama’s birth was registered 4 days after his birth (as plainly shown on his birth certificate) and that his birth record was NOT amended because Hawaiian law requires amended certificates to say so. And even if it were amended, it could only have been amended from something that was wrong to something that was correct. So no matter how you slice it, Barack Obama was born in Hawaii in 1961.
WAYK: “the opinions of legislators or scholars of any era or continent (e.g. Vattel), whether on paper or in debate, do NOT have the force of a legislative or constitutional instrument and so cannot legally define “natural born citizen””
Oh, but you should make sure you don’t mention this in any birther blog, you’ll probably fall out of their favour if you’re claiming that de Vattel’s definition has no authority whatsoever… 😉
This is a good opportunity to mention the results of the election for California’s Secretary of State:
Debra Bowen (Democrat) 4,532,014 (53.1%)
Damon Dunn (Republican) 3,300,142 (38.7%)
Others 713.478 (8.2%)
Orly Taitz Zero (although she may have written herself in)
this is a new log in the bowl. where is it stated that kapiolani only registers on friday ?
WAYK — this screams out for footnotes, as you start with a wild supposition (Kapiolani only registers on Fridays, Hawaii DoH did not have the legal authority to release to local newspapers lists of registered births until 1976, many more) and spin off into further speculation. If your initial supposition is questionable, then the subsequent speculations and conclusions are meaningless.
Uh, the Newspapers in 1961 specifically list the “Heath Department” in the tile of the weekly birth announcements as the source of birth announcements.
Every official source of data and qualified legal analysis disagrees with the birthers everytime. The record is 100%. The Hawaii DOH, the congressional research office, and 70-plus court decisions. Birthers have lost evey case and failed to produce a single piece of evidence usable in court.
They are delusional losers being scamed by grifters. I love watching this zombie-clown car crash.
I have asked this before:
What is the relevance of the legality of the Obamas’ Hawaiian marriage? There is nothing, NOTHING in American law stating that the President (or any other office holder) needs to be born in lawful wedlock. One of the Founders, Alexander Hamilton, was illegitimate, and there is every change that he would have run for President or Vice President had he not been shot by Aaron Burr. If anything, the Obamas NOT being married strengthens the President’s position, as his citizenship would then have been solely dependent on his mother, who was unquestionably an American citizen at the time of his birth.
So I ask again: what is the relevance of whether or not the Obamas were legally married? Or this is yet another smear?
Thank you for clarifying.
So…who was around here in 1961 to see what the actual procedures were in ’61???
What the hospital does today has no bearing what so ever with the pre computer/data base procedures of 1961.
There’s no fool like a Birfer fool.
Hear, hear.
There is no shortage of cognitive diversity at Obama Conspiracy Theories. Unlike birther blogs, where dissenting voices are banned, anyone who believes that Obama is not eligible to be President is free to post his or her views here. That said, there isn’t much on the subject which hasn’t already been analyzed and discussed, as you would see if you took the time to browse through the thousands of posts.
This I want to hear. It should be entertaining. Please provide details, citing caselaw and statutes where appropriate.
Prepare, however, for failing your evidence class, as dunstvangeet points out, (as does the CRS memo) the COLB would be entirely admissible evidence.
I remember how George Orwell tried to warn us about the despicable revisionism and twisted logic of lunatics like the birther bigots.
Here’s an interesting yet funny video:
http://www.youtube.com/watch?v=awe314WTONY
The Constitution Article seems to rule out human clones as POTUS (other than identical twins) as they would not be “born”.
> What is the relevance of the legality of the Obamas’ Hawaiian marriage? There is nothing, NOTHING in American law stating that the President (or any other office holder) needs to be born in lawful wedlock.
The one thing birthers want (since they have no real evidence) is create uncertainty, a typical FUD campaign.
If they can “prove” that Obama’s parents were never married, that opens the opportunity both for saying “see, that was a lie, so what else was a lie?” and “if they weren’t married, then anyone could have been the father/mother”. Works well in looneyland.
It’s the same strategy of “proof” they used in the ATLAH mock trial. Lack of evidence (and even that was not true) that Obama was at Columbia is proof he was not at Columbia and of course instantly proves that if he was somewhere else, it must have been in Afghanistan as a CIA agent, nothing else.
Oh, if only real court cases against birthers worked that way. What screams we would hear.
This is a load of crap!
Presently, no technology exists that can carry a fertilized embryo full term outside of a human body.
Even a clone would have to be carried by a surrogate mother full term.
I know, I know… you were just kidding!
Exactly!
> The Constitution Article seems to rule out human clones as POTUS (other than identical twins) as they would not be “born”.
> Presently, no technology exists that can carry a fertilized embryo full term outside of a human body.
Even if such technology existed, ultimately SCOTUS would have to decide how “born” would have to be interpreted in such a new situation that the Founders could not possibly have foreseen. (I predict they will consider such clones “born” for all intents and purposes, otherwise there would be real people who never were “born” and you could get lost down the route of “if someone was never born, how is it a crime to kill him?” etc.)
Or imagine another technology where people can transfer their “essence” (soul, brain patterns, whatnot) into a container any time and, should their body die, re-upload it to a fresh “empty” clone body (which may have been “born”). Would these re-uploaded people count as “born”? Because their “essence” was born once and their host body was also born once, they just weren’t born “together”.
Oh, I don’t envy the SCOTUS of 2150. 😉
WAYK: “CRS memo…has been superseded by new data (see below).” Keith: “No it hasn’t.”
WAYK: Sample new data in the matter of Obama’s vital records that has emerged since April 2009: i. Director Fukino’s illegal July 2009 statement, which under law obliged her to release all documentation that formed it (ignored). ii. DoH release Vital Records Regulations, November 2009; iii. DoH confirm Obama’s vital records amended, September 2009; iv. DoH confirm Obama’s vital records delayed (late), November 2009. These events yielded such important data that it is safe to conclude that the CRS memo had been superseded.
Keith: “Common law defined anyone born INSIDE the King’s dominions as a natural born subject.”
WAYK: Keith must read my comments more thoroughly, as that is precisely the point I made. Common law means born INSIDE US=natural born citizen, born OUTSIDE US=not natural born citizen. Then I went on to discuss the foreign born in the context of common law citizenship. In 1787 (and still) common law was state law. The common law of citizenship was subsequently adopted into federal law by the United States via XIV Amendment.
Keith: “Blackstone is acknowledging that the colonies may be operating under statutory law designed especially for them. He is not saying that common law did not apply.”
WAYK: Actually, if Keith had read Blackstone (e.g. my link) he would find that Blackstone DOES unequivocally state that English common law does not apply TO the American colonies, as they were deemed conquered territories; however, the Colonists unilaterally adopted those parts of English common law which were not repugnant to the laws of England and not beyond their competency as colonial subjects (e.g. being unable to decide the transmission conditions of British nationality), on the basis that the colonial territories at settlement were empty of native populations, culture, and laws or had become so. British legal authorities disagreed. “The Ancient Constitution and the Expanding Empire: Sir Edward Coke’s British Jurisprudence”, Daniel J. Hulsebosch, Law and History Review, Vol. 21, No. 3 (Autumn, 2003): “Coke’s opinion in Calvin’s Case and his other writings demonstrate that..he never intended it to operate in the other royal dominions…The jurisprudential upshot of this holding [Calvin] was that the king’s natural subjects…when in England…owed obedience to the king as an English king and were entitled to common law rights in England. But the court did not hold that these subjects enjoyed English liberties in those other dominions. The king’s “mandatory and remedial writs,” which included all common law writs, did not run to any land outside the realm of England… Most early modem English jurists, such as Chief Justices Vaughan, Holt, and Blackstone, categorized the American colonies as conquered lands; native populations inhabited them. Few believed that the colonies enjoyed the [English] common law by right.” Thus, for example, Obama Sr.’s Hawaii marriage was bigamous in British jurisdictions given British policy was that, as a conquered territory, marriages in Kenya under traditional law were as valid as colonial statutory marriages.
Keith: “Whether foreign born children of citizen parents are natural born’ or automatically naturalized at birth’ is irrelevant to Obama.”
WAYK: Irrelevant, only on the assumption that Obama was not born outside the US. Images of Obama’s alleged COLB placed on the internet are not admissible evidence that Obama was born in the US. Given there is no probative collateral evidence that supports the claim of Obama’s birth in Hawaii, and Hawaii DoH have confirmed his vital records were delayed and amended, I do not make the assumption Keith makes. The CRS, however, discussed the purported natural born citizenship of the foreign born at extraordinary length and got it completely wrong. I wonder why.
Keith: “I’m having trouble finding any reference to delayed vital records’ or preprondrance of the evidence’ in the memo. ”
WAYK: CRS memo page 12, note 60. The CRS memo notes with reference to another case that a “delayed birth certificate” (their quotes) issued 46 years after an “alleged birth”, accompanied by collateral evidence, had established “natural born citizenship”. Thus, CRS postulate, Obama; however, given the newspaper announcements of Obama’s birth are not derived from official DoH records and CRS cite no other probative collateral evidence to support the online images of Obama’s alleged COLB placed on the internet, it must be concluded using CRS’ own criteria that Obama has not established natural born citizenship by the “preponderance of the evidence”.
Keith: “…it is outside the brief of the research service to comment on political questions.”
WAYK: The CRS memo does not confine itself to an abstract discussion of Presidential eligibility; it offers advice, comments, and opinions concerning the legal status of Obama’s (in)eligibility, the (de)merits of ongoing litigation, the evidence pertaining thereto, with a protracted disquisition upon the eligibility of foreign born citizens, and e.g. invites readers to believe that the ONLINE IMAGES of Obama’s purported COLB found on the internet are equal to, i.e. the same as, an official certified record and consequently probative evidence. The CRS memo does not contain even an abstract discussion of a Presidential incumbent’s ineligibility and how to resolve it. This IS a brief and has been exploited as such. Given they were completely wrong on several points of law, they have forfeited trust in this issue.
Dr C: “In Hawaii, a registration is “delayed” if it is filed over one year from the date of birth.”
WAYK: In 1961 the term used in Hawaii law and DoH Regulations for a birth registered more than 30 days after delivery was “delayed”; in 1972 the term for such a birth became “late”, and the term “delayed” was reserved for births registered more than 1 year after delivery. My use of the term encompasses both its 1961 and 1972 meanings, especially given other evidence obtained through UIPA from DoH indicates recent transactions between Obama and DoH, such that the later usage seems particularly appropriate.
Dr C: “Fool the gullible…”
WAYK: Perhaps Dr C might clarify: is he still relying on California’s “Out-of-Hospital Package” in an attempt to puzzle out Hawaii DoH policy concerning home births, or has Hawaii DoH finally issued the documents they are legally obliged to issue and which Dr C needs to vanquish conspiracy theory with fact? Surely Hawaii would favor Dr C’s considerable exertions in that cause with the facts he needs?
Dr C: “Obama’s birth was registered 4 days after his birth (as plainly shown on his birth certificate)”
WAYK: i. Dubious images placed online, or a never-seen-again piece of paper furtively handled at night, are not probative evidence. ii. All the images Dr C cites purport to represent an alleged CERTIFICATION, not a birth certificate (see below). iii. The two researchers sent by Factcheck had no way of professionally assessing the validity of the paper they were given for a very little time to examine, they didn’t even bring a genuine Hawaii COLB for comparison. Given their backdoor adventure has not been replicated by anyone else, we should not assume their untestable experience is definitive. Facts will dispel theories and doubt, when we have enough facts.
Dr C: “[Obama’s] birth record was NOT amended because Hawaiian law requires amended certificates to say so.
WAYK: Obviously Hawaiian law requires amended certificates to say so: it does not follow that this makes the online images purporting to represent Obama’s COLB genuine.
Dr C: “…even if it were amended, it could only have been amended from something that was wrong to something that was correct.”
WAYK: A major amendment at the Director’s discretion, for which Obama’s family were responsible (as he paid), means Obama was not born at Kapiolani Hospital, as registration there would make the hospital responsible; how does it follow from this that the online images purporting to represent Obama’s COLB are genuine?
The Magic M: “…you’re claiming that de Vattel’s definition has no authority whatsoever…”
WAYK: Yes, both constitutionally and legislatively, Vattel’s definition has NO authority whatsoever.
BatGuano: “Where is it stated that kapiolani only registers on Friday?”
WAYK: Every pre-electronic Kapiolani-originated certificate which has been examined (except for one public holiday decades ago) has been registered on a Friday. I will retract this statement if BatGuano can find a Kapiolani-originated certificate registered on a Tuesday or any other day anytime in, say, the last 80 years.
Whatever4 doubts Hawaii DoH did not have the legal authority to release to local newspapers lists of registered births until 1976: where is the official authorization prior to the 1976 VR Regulations permitting Hawaii DoH to release such lists? It does not exist.
Ellid: “What is the relevance of the legality of the Obamas’ Hawaiian marriage?”
WAYK: The fact that Ann Dunham’s marriage was bigamous in British jurisdictions but still legal in Hawaii, until declared void (i.e. voidable) by a court in Hawaii (which never happened), means that if Obama Jr. was born in Hawaii he is a natural born citizen because British citizenship did not transmit to him due to illegitimacy in British law (not a dual citizen); and if he was born OUTSIDE the US he was not a natural born US citizen (indeed, no citizen at all) because, as a married woman in Hawaii aged 19 at his birth, his mother did not have sufficient US residency to transmit US citizenship.
HORUS: WAYK said: prior to 1976 families were entirely responsible for birth announcements. HORUS:This is a load of crap!
WAYK: Given families still place such announcements, who in 1961 were motivated to place these ads other than the families? What authorization prior to 1976 for DoH to issue these lists can HORUS cite?
dunstvangeet: “The COLB is directly admissible of the facts of birth. It is Prima Facie evidence…best evidence (which I’m persuming that you’d be going for) does not apply…the statement I quoted [Federal Rules of Evidence 902.1 and 804.2] alone shows you how much you actually know about the law – Absolutely nothing.”
WAYK: “Best evidence” etc arguments would only apply if Obama’s COLB were admitted into court. Here are four examples of the inadmissibility of Obama’s alleged COLB:
1. A 2007 COLB is not legally equivalent to its originating 1961 birth certificate: Hawaii law in HRS 338-13(a) specifies the type and status of documents that DoH may issue as certified copies of vital records: a. a copy of the original certificate; b. a copy of the contents; or, c. part of the contents; HRS 338-13(b) states that only type b., “copies of the contents…shall be considered…the same as the original”, thereby necessarily excluding a document comprised of type c., part of the contents of an originating vital record, from being considered legally equivalent to a birth certificate. The established canons of statutory interpretation only permit a strict reading of this law. Since Obama’s alleged COLB includes only part of the original contents of his alleged 1961 birth certificate, it is NOT legally equivalent to an alleged 1961 original, thus Obama’s COLB is not admissible as evidence into Hawaii or federal courts and does not by itself constitute sufficient evidence of US citizenship acceptable to the Department of State.
2. Obama’s purported COLB is not an original document admissible under FRE 902(1): FRE 902(1) applies only to original paper documents. Obama’s alleged COLB states it is no more than an “abstract” of an electronic record. Courts cannot deem any Federal Rule of Evidence or its language redundant or meaningless: “as the [FRE] were enacted by Congress, this Court must interpret them as it would any statutory mandate…as a statute, we begin with the text …if the language of the statute is reasonably definite, it must be regarded as conclusive” (US v. Houlihan, US District Court Mass., 1994). In the FRE Congress has mandated that certified copies of public records and electronic records are to be authenticated via a dedicated Rule: FRE Rule 902(4). Thousands of Hawaii COLBs are routinely printed out and machine-stamped by DoH clerks every year. Given images of Obama’s alleged COLB do not show conformity to the authentication procedure of FRE Rule 902(4) – a unique NON-ROUTINE comparison check between a dataset and its printout, with a written attestation to that effect certified by a handwritten signature – Obama’s alleged COLB is not admissible as evidence. See, for example, “Back To The Future: Lorraine V. Markel American Insurance Co. And New Findings On The Admissibility Of Electronically Stored Information”, Hon. Paul W. Grimm Chief US Magistrate Judge, Michael V. Ziccardi, Esq., Alexander W. Major, Esq., Akron Law Review 2009.
3. Obama’s alleged COLB is not admissible due to containing hearsay within hearsay: Vital records are always hearsay, containing out-of-court statements. The Federal Rules of Evidence [805] exempt a vital record itself but not any further hearsay statements within the record. Contemporary signatures attesting to the FACTS (plural) of birth by parents and medical professionals are admissible evidence through FRE 803(9) for a 1961 certificate, but the only attestation on Obama’s alleged 2007 COLB – by Registrar Onaka, assuming it is genuine – cannot be made stretch to encompass Onaka making statements on behalf of others concerning events that occurred before he was employed by DoH and of which he has no first-hand knowledge; Onaka only attests that the COLB dataset is abstracted from the COLB database. Given Obama’s COLB involves multiple levels of hearsay uttered decades after 1961, by database installers, dataset inputters, database maintainers – all probably outsourced – the dataset printout clerk, and the facsimile signature applier, concerning an event of which these people had no firsthand knowledge, and none subject to cross-examination, this defines hearsay within hearsay. Given the original source for many of the registration statements allegedly made in 1961 – Obama Sr. or a Dunham family member – was not employed by Hawaii DoH and under no business or public duty to be reliable and trustworthy, whether or not Obama’s COLB is excluded under FRE 803(9) it is not admissible under FRE 803(6) or 803(8). The exclusion from evidence of non-contemporaneous and non-firsthand hearsay within hearsay has been sustained in numerous court decisions: see, for example, US v. Marguet-Pillado, US Ninth Circuit Appeals, 2009 and US v. Hajda, US Seventh Circuit Appeals, 1998.)
4. Obama’s alleged COLB is not admissible under Federal Rule of Evidence 803(9): Given there is no express statutory or administrative provision, as is required in Hawaii law, permitting DoH or Vital Records to use facsimile signatures, then images of Obama’s alleged COLB with a facsimile signature do not reflect a genuine vital record. A 2007 COLB part-quoting from a 1961 vital record is not a vital record, merely a notification of the existence of a vital record held elsewhere: to this end Obama’s purported COLB explicitly states on its face that it presumes no more than the FACT (singular) of birth i.e. that he was born. Obama’s alleged COLB is not admissible as a genuine vital record under FRE 803(9). Some believe FRE 803(9) admits vital records “in any form”. If Congress had intended that the words “in any form” were to mean the colloquial “in any form whatsoever ” it would never have qualified the words “records and data compilations” with the phrase “in any form”. Under the canons of statutory interpretation the phrase “in any form” must have a specific meaning and purpose in the context, and that meaning can only be its commonly accepted dictionary meaning (“A statute’s plain meaning must be enforced.” US Nat’l Bank of Oregon v. Ind. Ins. Agents, SCOTUS, 1993), where “form” stands in opposition to “content”. The intended purpose of Congress must be that vital records of birth, marriage, and death, are to be admitted under differing “shapes, structures, outward appearances, coordinated elements, and methods of arrangement” but should continue to adhere to their traditional content or essence and always compliant with long-established law. See point 1.
The common thread in points 1-4 is that Hawaii DoH has consistently flouted state law, their operating regulations, and the stipulated procedures of consultation for changing those regulations. For example, with no basis in law, and without following the stipulated consultation procedures, Hawaii DoH recently changed COLBs from reading “Certification” (which means “the state of being certified”) to “Certificate” (which means “a formal document attesting the truth of the facts stated”). As in points 1-4, a Certification (or COLB) indicates that someone or something is or has been certified i.e. a notification of the existence of a Certificate held elsewhere: it is not the Certificate itself. Hawaii DoH’s contempt for regulation and law across the decades has created a legal and constitutional quagmire.
WAYK: lay off the coffee, and go back to thorazine.
Another steaming pile of birther crap and more proof that idiotic birther bigots have more spare time than common sense.
Just another birther troll.
> Every pre-electronic Kapiolani-originated certificate which has been examined (except for one public holiday decades ago) has been registered on a Friday.
So you are stating since every sheep you have ever seen was white, that proves there are no black sheep?
If I have shaved every morning for the last 20 years, that proves that the guy looking like me who did not shave this morning in my bathroom was my lost identical twin?
You have a funny way of deducing “facts”, albeit a very non-scientific one. Especially since I presume the number upon which you base your argument (the number of certificates that have been “examined”) is pretty small.
who examined what and where can i see all the findings of him/her honestly.
I will just say that the Attorney General of Hawaii is an authority on Hawaiian law, and you are not. You are a crank with crank interpretations.
If you had actually read the CRS report, you would know that none of the “new evidence” you list has any bearing on what it says, namely our government says Obama was born in Hawaii, and no foreign country or hospital has said otherwise. That is as true today as it was in April of 2009.
nothing wrong with going into length to make your point…
you just might want to spread it out over 2 years and 1,000 posts.
To counter those who claim in these comments and elsewhere that the CRS churns out partisan reports to please whoever is the current majority party in Congress, I suggest that a Democratic Congressperson in January, under the Republican congressional leadership, request the CRS to “clarify” Obama’s status again and produce another report. I predict it will be almost identical to the one issued in 2009.
That is what I said. You have me confused with WAYK.
Blahahahahaha
See, this is why birther’s are such loser’s. They take a few (6 or 7) BC’s out of the thousands of BCs written, spread out over 40 years and then draw grand conclusions.
Here is a Kapiolani BC. from 1949 ( 61 years ago)
Date of birth: July 17th, 1949 (Sunday)
Date signed by doctor: July, 19, 1949 (Tuesday)
Date received by registrar: July 25th (Monday)
And this is the BC for the husband of well-known birther Miki Booth.
So, Wayk, when will we see your retraction.
And with something as simple as this, how did you f**k it up. And what does it say about the rest of your f**ked up analysis.
WAYK was sure he must be correct, for how could something with so many words be incorrect?
Maybe I’m dense or my knowledge of the subtleties of the English language is imperfect, but I honestly do not draw the inference Wayk does from the supposed differences between “certificate” and “certification”.
It seems to me one is a noun and the other a substantive used as a noun, but I genuinely fail to see any semantic difference between the two. For instance: “driver’s license” and “driving license”.
I could be wrong of course.
It’s only because the birther bigots fantasize that there’s a meaningful difference.
Rambling on in a clueless diatribe doesn’t magically make anything true either.
It’s just a higher pile of steaming nonsense.
They constantly make up crap to prop up their ridiculous, unsubstantiated, paranoid b.s.
They are the worst kind of fear mongering, hate driven, despicable liars. And they need to be called out for it.
Gorefan I doubt he will retract. He’ll make the excuse saying Batguano was supposed to find one.
> For instance: “driver’s license” and “driving license”.
Within the birthers’ “we only play word games if it helps our argument” world, that would make a huge difference. Depending on which of the two Obama released, they would make up a perfectly logical semantic difference which implies that “whatever Obama released” was “not the real thing” and the other thing was “the one and only real thing”.
If Obama produced a “driver’s license”, they would argue that this does not allow him to drive since it’s not a dri*ving* license.
If Obama procuded a “driving licencse”; they would argue this does not make him a dri*ver*.
However, as soon as you try to play the same games with their arguments (e.g. by asking where the Constitution requires a natural born citizen *of the United States* since it doesn’t say so), they suddenly accuse you of playing word games and “trying to obfuscate the truth”.
It all boils down to selective reading/opinionating. Just like the birthers’ take on the Indonesian papers. The same document stating Obama’s religion as “Muslim” is “proof”, stating his birthplace as Hawaii is “not proof”.
In Germany, we have those people, too. They take a 1973 ruling by the Consitutional Court basically stating “The German Reich did not collapse in 1945. It continues to exist. It is identical to the Federal Republic of Germany.” and claim to accept one thing (that the Reich continues to exist) because the court “was right” but refuse to accept the other thing (that it is identical to the current German state) because the court “was wrong”.
You just can’t argue on a sane basis with people who are selective.
For our purposes, certificate and certification are the same thing (except one has more syllables). I’ve written about this before:
http://www.obamaconspiracy.org/2008/12/not_born_in_hawaii/
http://www.obamaconspiracy.org/2009/03/when-is-a-certification-a-certificate/
http://www.obamaconspiracy.org/2009/09/a-certification-is-not-a-certificate/
The “smoking gun” in all of this is that Barack Obama Certification of Live Birth has the words “this certificate” at the bottom, which pretty well cinches the equivalence.
1. The Obamas’ marriage was indeed considered legal in Hawaii, as is shown by the fact that Stanley Ann Dunham had to divorce her first husband before she could marry her second.
2. Citizenship of the parents is irrelevant if a child is born on American soil.
3. The President could not possibly have been born in Kenya, as has been demonstrated over and over again, most notably by Misha pointing out that a visit to Kenya in 1961 involved proof of a vaccination that cannot be given to pregnant women.
4. The mere idea that a baby could be born without any citizenship at all is so ridiculous that your advocacy of same forces me to question your sanity.
5. You need a hobby that doesn’t involve spouting right wing talking points and bogus interpretations of laws you don’t understand.
Great…another wannabe lawyer turning the Frederal Rules of Evidence on its head trying to get them to mean exactly the opposite of what those actually practicing law understand it to mean. I assure you, there is no legal quagmire, there is no question as to the admissiblity of the actual document of which the scan was posted. His alternate world legal theories are only matched by his alternate world set of facts (DOH admitted to a delayed registration and admended vital record????? Yeah..right). I find it amazing that someone would invest so much time writing up such a giant turn of gibberish.
gorefan: “So, Wayk, when will we see your retraction.”
Retracted, unreservedly, and won’t be used again without further research. Thank you, gorefan, for updating me: it was a classic “black swan” hostage which, believe me, I purposely left open to fortune. Given no one can stay abreast of every development and deduction, my intention when commenting is to put forward propositions which I hope will be tested in detail. When anyone chips away, I could not be happier: in the interests of truth, what remains is more robust. No one holding an opposing view who argues it intelligently and sincerely is my enemy. Naturally it cuts both ways; when propositions survive examination they become established and must be accepted as such: that is civilized debate.
The question now is: having made a retraction, which I suggest does not invalidate my other propositions, and those propositions in turn have not been chipped away, and are indeed supported by further propositions, when is the general argument conceded? Given Hawaii DoH has confirmed through UIPA that nobody in the Democratic Party, or any other concerned party with a direct and tangible interest, requested a copy or verification of Obama’s vital records; and given privacy cannot be cited here because a) under Hawaii VR Regulations 8B 2.5f government agencies are permitted to receive certified copies or verifications when transacting official business involving the registrant (Obama), and b) under Hawaii VR Regulations 8B 2.5B(2) Hawaii VR are permitted to issue non-certified informational copies to anyone; on what basis then was Obama’s eligibility (place of birth and age) verified? By Obama showing the suppositional COLB, depictions of which were placed on the internet and which Factcheck researchers claimed they were ushered through a backdoor at night to examine, never to surface again? This alleged COLB does not contain a summary of reasons (as required by law) for being delayed and amended, which Hawaii DoH has indicated is the case; therefore a) online images of Obama’s COLB do not depict something legitimately issued by Hawaii, and b) delayed and amended registrations under Hawaii law (to which federal courts will defer) necessitate an independent determination before they can be accepted as prima facie, and no determination has yet been made and Obama will not allow such. Why and why not? Please chip away.
Dr C: “If you had actually read the CRS report…our government says…”
It’s not the government’s call: given the matter in dispute is natural born citizenship (as one qualification for Presidential eligibility), which is not defined in the federal constitution or law, federal authorities must defer to Hawaii law (HRS 1.1 incorporating common law) in the case, in accord with the X Amendment and 28 USC 1652; as SCOTUS held in Erie v Tompkins, “Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state…” If anyone disputes this, on the basis that natural born citizenship has indeed been defined in the Federal Constitution or by acts of Congress (especially as comprehended by the Framers in 1787), some reasons would be much appreciated. Always remembering that SCOTUS in Wong Kim Ark stated that “[the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization”; or as the author of the Amendment, Senator Howard, said: “This amendment which I have offered is simply declaratory of what I regard as the law of the land already…”; about which Representative Kerr observed: “Does this provision confer upon Congress of the United States any new or original power? I say no. It is no grant of power; it gives no new power to Congress; it takes no PREEXISTING power from the State… ” [Emphasis applied]
Otherwise, the CRS is not our government, its report is (as demonstrated above) flawed and outdated, and, contrary to Dr C’s surmise, I read every word.
Dr C: “…Obama Certification of Live Birth has the words “this certificate” at the bottom…”
It also says “fact of birth”, not “facts of birth”; “prima facie…in any court”, not outside a court; “invalid if altered”, when the amendment(s) and delay of Obama’s registration legally constitute alteration, removing any prima facie presumption; and worst of all it says “338-13(b)”, wherein only the ENTIRE CONTENTS of a vital record are equivalent to the original, not the part contents of same i.e. a COLB. These anomalies are explained by the fact that Hawaii law and Hawaii DoH regulations do not name, and has no functional provision for, “Certifications”. “Certification” in these laws and regulations is used ONLY in the sense of “the act of certifying” or “the state of being certified”. The distinction that Lupin fails to understand is right there in Hawaii law and Hawaii DoH regulations, albeit DoH has illegally devised paper (COLB) that is worthless scrap if tested. Notwithstanding, some have a faith in Hawaii DoH that is impervious to reason and inquiry.
ellid: “The Obamas’ marriage was indeed considered legal in Hawaii….if a child is born on American soil…could not possibly have been born in Kenya…immunizations…that a baby could be born without any citizenship…right wing talking points and bogus interpretations”
ellid must not read have my comments thoroughly because nothing of what I have been accused of saying is true. Again, to be clear:
1. The Obama’s marriage was bigamous in Kenya and voidable in law in Hawaii, meaning it could only be declared void in Hawaii AFTER a Hawaii court ruling on request of an injured party. No such ruling was ever made but, even had it been, Dunham would have been deemed a putative wife and Obama Jr. would have been deemed her legitimate issue. In which case, if Obama Jr. was born outside the US before Dunham was 19, he did not qualify for citizenship.
2. Children born in the US are natural born citizens; Vattel’s opinions etc. have no legal standing and are unenforceable in law.
3. I never said Obama was born in Kenya; there are at least four alternative credible scenarios involving birth outside the US. Having personally traveled between four continents and with small children, the airlines state that (quote) “Restrictions are based on an honor policy”. It was no stricter in 1961.
4. International law stipulates that persons cannot be placed by any nation in circumstances which leave an individual without at least one citizenship. Foundlings are registered in Hawaii and elsewhere as natural born US citizens.
5. I have uttered no right wing talking points: name one. Neither do I presume to tell ellid what ellid’s politics are.
6. In reasoned debate, and the law, interpretations can only be overcome by more cogent interpretations: even a faulty interpretation trumps no interpretation. I notice ellid has supplied NO cogent alternative legal interpretations, and all ellid’s other points are demonstrated to be in error. Neither have I resorted to ad hominem insults to rebut ellid’s comments: it can be done.
JoZeppy: “alternate world set of facts (DOH admitted to a delayed registration…)”
DoH in several instances denied access to records concerning the amendment(s) and delay of Obama’s registration, even illegally denied access to the ancillary processing records of same. The Hawaii Freedom of Information watchdog stated on appeal that such denial of access constituted an admission that said amendment(s) and delay existed. Even Dr C has not outright called these requesters liars when this information has been made public. I always invite skeptics to make similar FOI requests to Hawaii or query the FOI watchdog, if they doubt the facts, to disprove the denials of access. None have ever came back with a disconfirmation, not even JoZeppy.
misha: “…coffee…thorazine…”
Since when did exploiting the mental ill, to show how much one despises other people, become less disgusting than describing others as no better than a socially despised ethnic, religious, or sexual minority?
In an earlier career I had a very successful practice enabling people to regain their lives without the need for thorazine or similar drugs (thorazine has actually been superseded by modern compounds in the chemical management of mental illness). As I sit here in many acres of my own forest, with nothing between me and the highway a mile out front, and nothing between me and the ocean surf a mile out back, looking at the sparkling eyes of my daughter as my spouse works on a second PhD, I say yes, Misha is right, how could I have allowed coffee into my life and gotten it all so horribly wrong?
Dr C: “…You are a crank with crank interpretations…”
I did express the hope, in the interests of civilized discussion, that nothing personal be used to distract from anyone’s argument. As has been said: “When you have the facts, argue the facts; when you don’t have the facts, argue the law; when you have neither the facts nor the law, ATTACK THE OPPONENT.” The proven disadvantage of attacking “birthers” is a precipitate loss of credibility and the self-inflicted rousing of opposition among the voters on all other issues, as recently seen in the mid-term elections. More of the same will only lead to more of the same, and the accumulating political damage will be so massive that, even if hypothetically Obama were able to overcome future legal challenges to secure renomination and get on the ticket, he would be subsequently defeated. By allowing the provenance and probity of his vital records to be determined, Obama could only gain by November 2012. Given his demonstrated reluctance and his underlying motive, it most probably won’t get that far. I would say enjoy it while it lasts, but it doesn’t seem likely to be very pleasant.
When did the Democratic Party become a government agency?
I do not see anything in your comment that supports the claim that the CRS report is “outdated”. You suggest that there has been new evidence since April of 2009 that invalidates the report; however, for that to be the case (based on what the report actually SAYS), there would have to be an official statement or document from a foreign government or hospital that Obama was born in that country, and such has not been forthcoming. That is the standard of evidence used by the report. Therefore, your claim that the report is “outdated” is false.
By the way, I find your UIPA statement so much turgid gobbledygook.
I think the corollary to that is, when your opponent is a crank, don’t even bother.
Please provide some evidence that Hawaii has confirmed this. Or is this the “it’s not what they said but how they didn’t say it argument.”
If you argue with a fool, make sure you are not doing the same thing.
i believe this is the definition of a concern troll.
Actually, his COLB looks the same as one posted by a birther Danae at freerepublic. Her “Certification” of Live Birth was issued by Hawaii, it has a raised seal but it is invisible in the photos.
You can see them at:
http://www.freerepublic.com/focus/f-news/2606951/posts?q=1&;page=1501
Just scroll down to post # 1545.
The first and third photo show her COLB. And if you look very carefully you can even make out the date “filed”.
Doc C. – Here is a little answer to a previous question.
On Danae’s COLB it says date “filed” as August 14, 1969. And her original BC says date “accepted” August 14, 1969. At least in this case the two are the same.
I see there is another one saying that the COLB that President Obama posted on his website was not issued by the State of Hawaii. Would this “person” care to venture forth his or her, probably conspiracy, theory as to why it is that Hawaii has not prosecuted him for forging one of their certified documents even though Dr. Fukino stated that she knows he posted “a copy of his birth certificate” online as well as why they passed a state law to deny repeated requests for something that you say is forged?
Her we go ’round again. A new Lucas Smith email must be going around peddling the same old proven fake birth certificate.
THE BIRTH CERTIFICATE FROM MOMBASA
Sent: Monday, November 15, 2010 11:54 AM
Subject: The Birth Certificate
Sent: Sat Nov 13 13:00
Subject: Fwd: The Birth Certificate
Here it is, folks! The document we have been waiting for! Now if only SOMEONE in Congress or the Supreme Court will act on this!
Spread this around…..if these documents are as authentic as they certainly seem to be, Obama is NOT qualified to be our President and he sits in the White House illegally!
http://gretawire.forums.foxnews.com/topic/the-birth-certificate-from-mombasa
This paragraph makes no sense whatsoever to me. It is almost word salad. I am hesitant to opine on a matter about which I freely recognize that I am unfamiliar, but IF there is some kind of loophole or problem, it has to be stated in clear and convincing language, not in a rambling, nonsensical way.
If there is an actual underlying fact somewhere in there, please someone explain it to me.
By Obama showing the suppositional COLB, depictions of which were placed on the internet and which Factcheck researchers claimed they were ushered through a backdoor at night to examine, never to surface again?
http://www.factcheck.org/elections-2008/born_in_the_usa.html
Hmm nothing about backdoor at night there.
I see misha jumped all over that one. lmao
I would have too, but it’s late, and I’m too tired to argue with idiots. Tomorrow is another day
Did you see how I punked the Post & Email?
http://www.thepostemail.com/2010/11/12/memo-to-members-of-congress-proves-they-never-saw-obamas-long-form-birth-certificate/
Comments on WAYK assertions gathered from several posts:
WAYK: “his parents’ marriage was bigamous”
Keith: irrelevant. He was born on U.S. Soil. Parental marriage status and parental citizenship status are completely irrelevant.
WAYK: “in the case of a delayed filing”
Keith: irrelevant. The filing was not delayed, and you have zero evidence to support such an assertion.
WAYK: “Obama’s delayed and amended registration”
Keith: irrelevant. The filing was not delayed and the registration has never been amended. You have zero evidence to support such an assertion. We have prima facie evidence that the registration was not amended by the fact that the Certified COLB does not describe any such amendment.
WAYK: “Keith must read my comments more thoroughly, as that is precisely the point I made. Common law means born INSIDE US=natural born citizen, born OUTSIDE US=not natural born citizen.”
Keith: Then why are you wasting time making assertions that everyone here agrees with? Your post is already way too long, ever heard of KISS? Obama was born in Honolulu, Hawaii; end of controversy.
WAYK: “Keith: “Whether foreign born children of citizen parents are natural born’ or automatically naturalized at birth’ is irrelevant to Obama.” WAYK: Irrelevant, only on the assumption that Obama was not born outside the US”
Keith: Not assumption. Certified fact.
WAYK: “WAYK: The CRS memo does not confine itself to an abstract discussion of Presidential eligibility; it offers advice, comments, and opinions concerning the legal status of Obama’s (in)eligibility, the (de)merits of ongoing litigation, the evidence pertaining thereto, with a protracted disquisition upon the eligibility of foreign born citizens, “
Keith: Exactly. None of this is political commentary, it is legal analysis, and it is what the Congress pays them for.
WAYK: “and e.g. invites readers to believe that the ONLINE IMAGES of Obama’s purported COLB found on the internet are equal to, i.e. the same as, an official certified record and consequently probative evidence.”
Keith: No it doesn’t, that is just stupid. No one except unthinking semiconscious nitwits think that a photo image on the web is the same thing as the paper document of which it is a photo. What the series of photos do show is that such a document exists and that the document contains specific information. That the information shown on the images of the document matches the information verified by the State of Hawaii on at least three occasions, at least one of which was under oath in front of a Hawai’i State legislature committee meeting, further demonstrates that the images are accurate, have not been tampered with, and are indeed exactly what they purport to be: images of Barrack Hussein Obama’s official Birth Certificate issued by the State of Hawai’i.
WAYK: “The CRS memo does not contain even an abstract discussion of a Presidential incumbent’s ineligibility and how to resolve it. This IS a brief and has been exploited as such.”
Keith: Of course not. That is a political question that the CRS has not been tasked to answer. That would be a discussion between Congress, SCOTUS, and the Attorney General (with the help of every Constitutional Lawyer in the country and not the ambulance chasers you are getting your info feeds from). In the end if an incumbent President is found to be ineligible and ‘has’ to be removed, there are only two possibilities: impeachment and resignation. This is, of course, all hypothetical since this incumbent President is not ineligible.
WAYK: “Given they were completely wrong on several points of law, they have forfeited trust in this issue.”
Keith: IANAL, but they are not wrong on any point of law and I know this because each and every one of their points has been discussed and chewed on and argued out and rehashed many times, by real lawyers, gifted amateurs, and interested onlookers, naysayers, semiconscious nitwits, concern trools, sockpuppet trools, and fly-by spammer trools , on this esteemed site and several others for two years and they all come to the same legal conclusions as the CRS memo.
WAYK: “This alleged COLB does not contain a summary of reasons (as required by law) for being delayed and amended, which Hawaii DoH has indicated is the case;”
Keith: Because it has not been amended, and the Hawai’i DoH has made no such indication. You have zero evidence for either and are just making things up.
I tire of this game.
It has been said many times, you are entitled to your opinion, no problem. You are not entitled to your own facts.
P.S. I claim copyright on the term “trools” – a combination of the word “troll” and “tool”.
P.P.S. Somebody beat me to it: http://www.urbandictionary.com/define.php?term=Trool
this statement boggles the mind.
the COLB meets all requirements of the state department for proof of birth. how exactly is it worthless ?
No, this is the Bomford fake, not the Lucas Smith fake.
http://www.obamaconspiracy.org/2009/08/a-stake-through-its-heart/
What I glean from this comment is that he/sh/it is saying that the COLB may be prima facie evidence in a court, but birthers outside of court do not accept it. My response to them: who cares what you think.
Did you get your law degree from an off-shore law school? I have to wonder, since your analysis of the Federal Rules of Evidence do not seem to reflect an understanding of the actual Federal Rules of Evidence. Are you citing some other country’s FRE?
It’s clear that the State of Hawaii disagrees with you, as the COLB itself states that it is prima facie evidence of the contents. You’re welcome to look to see if you can find a single case in the history of the nation where a COLB was found invalid on any of the grounds you have alleged. I’d point you to Inoue v. Inoue, 118 Haw. 86 (2008) as an example of where the COLB was upheld as a legal document.
902(1) does not state that only “originals” as opposed to “abstracts” are covered. It states that “A document bearing a seal” from “any State” is self-authenticating. It’s the SEAL that’s the important part.
The notes of the FRE itself shows that you are incorrect.
So, not exclusively rule (4).
You didn’t actually read this, did you? See Grimm, “Back to the Future…,” 42 Akron L. Rev. 357, 362-363, “[T]he Lorraine opinion identifies the following five evidentiary “hurdles” that must be evaluated in order to assess the admissibility of electronically stored or digital evidence: … (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, or if not, is there admissible secondary evidence to prove the content of the ESI (RULES 1001-1008) ”
Hmm, Rules 1001-1008? What’s there? How about Rule 1005 PUBLIC RECORDS:
.
So, guess the FRE admits the contents of birth certificates, even when they aren’t the original, or a copy of the original. It could be a data compilation in ANY FORM.
Let’s go back to Judge Grimm’s article:
So, the fact that the information is stored electronically is no barrier to its admission, as shown by the article YOU cited! Maybe you should read the things you think support your case. This article actually shows there is no problem in admitting vital records, even when they are stored electronically.
Nonsense on toast! Onaka is certifying that the information contained in the COLB is a true and accurate copy or abstract of the information contained in the records. It clearly falls within the hearsay exception for vital records:
Your cases are also clearly off-point.
US v. Marguet-Pillado = an “Application for Status as Permanent Resident” filled out by a private citizen. It was not a report made to a public office pursuant to requirements of law. It was not a vital statistic, then.
Hajda – statements made by prison guards. The documents themselves were admitted under the ancient document exception to hearsay and the statement of Stanislaw was admitted because it was a statement against interest. It has nothing to do with vital records.
The problem with your analysis is there is no hearsay within hearsay problem for the vital records. They are vital records, period.
Again, I await your presentation of a single case where a vital record was excluded on hearsay grounds, despite otherwise complying with the rules of evidence.
You mean like Chapter 8B, 2.4,B(1)(b)? (p. 19 of the linked pdf):
What research did you do before you made these claims? You clearly did not research Hawaiian statutes or regulations.
As a matter of fact, as seen in the mid-term elections, those candidates most closely tied with birthers, JD Hayworth, Tom Tancredo, Sharron Angle, etc. were defeated. You can point to no evidence showing a correlation between attacking birthers and a loss of credibility. It seems your political analysis is as flawed as your legal analysis.
“who cares what you think”
Stormfront.
Greg, excellent post!
It appears that birthers are not only asking for the “release of Obama’s vital records”, they have already prepared their arguments why these records, if released, would “not prove anything” because they are “hearsay” since “no-one really knows how the information got into the papers in the first place”.
It’s another logical fallacy, a relative of “moving the goalposts”. Simply paint *everything* as doubtful ad infinitum.
If Obama produces his long-form BC, doubt that the physician who signed it really signed it. Or claim that he simply signed his own “claim” and that further proof is required the physician was not lying or just relaying information by others. If all fails, demand to see said physician’s papers to verify he actually was a physician, was employed by Kapiolani hospital at the time and that the person who signed his work contract actually was working for Kapiolani hospital at the time and was who he claimed he was and… You get the picture, paranoia ad nauseam.
It’s the old story I’ve seen many times in people with querulatory disorder. They try to justify for themselves why a court ruling against them is “invalid” because the certified version they got “was not signed by the judge”. And end up demanding that the judge signs his ruling in front of them, of course only after proving to them, beyond the shadow of a doubt, that he actually *is* a judge, is the judge assigned to his case etc.
In the 1962 regulations, it said:
The reg was only changed slightly in 1976, notably by forbidding the inclusion of any illegitimate birth and the addresses of those
1. Where did they say this? And, by the way, what “watchdog” are you talking about?
2. Please show a court case where the denial of access to vital statistics was taken by the court to mean that the birth certificate was amended.
This seems to be the stance of the Department of Health:
Records pertaining to the Department of Health database for vital statistics information are not required to be disclosed by the Uniform Information Practices Act because those records, by their very nature, must be confidential in order for the government to avoid the frustration of a legitimate government function (see HRS §92F-13(3)). Disclosing such information compromises the department’s ability to protect the integrity of vital statistics records, to ensure their proper use, and to ensure the efficient and proper administration of the vital statistics system as is required by HRS §338-18.
Tracking back through Dr. C’s website, it seems the admission based on denial argument stems from this opinion letter from the OIP, which some birthers have interpreted to mean that when denying access would confirm existence, the organization should say “if any.” Any denial, therefore, that does not say “if any” confirms the existence of the documents.
This is a fallacy of denying the antecedent.
The Department of Health has issued a blanket denial of access to ANY vital record. Therefore, there is no reason for it to insert the words “if any.”
If you actually read the opinion letter cited, you would see how completely bass-ackward birther analysis is in this case. What’s the reason for inserting the words “if any” into the denial? As the opinion letter says, it’s “[t]o prevent identification of specific permit holders by the pattern of HPD’s responses…” Birthers are saying they can look at the pattern of denials issued by the DOH and use that pattern to discern the existence of documents. That turns the rationale of this opinion letter on its head!
The letter only requires a blanket response, which the DOH has given – you cannot have access to ANY vital records, period.
> Any denial, therefore, that does not say “if any” confirms the existence of the documents.
That birther argument is a bit like the “are you still beating your wife?” question, isn’t it?
Logically, any statement about the empty set is true (since to falsify it, you’d need an element of the empty set for which that statement does not hold, but there is none).
“All records confirming Barack Obama was born in Kenya have a blue headline” is a true statement because there are no such records.
(Just as I could say “All supermodels and celebrities I ever slept with have praised my bedroom skills” without being a liar.)
“We cannot show you any records” does not confirm there are records to begin with, since the statement is logically true regardless whether there are records or not.
Birthers would probably say that my blue headline statement admits there are such records…
That’s because their bit buckets have been overflowing for some time.
It said this in the email that was posted in the forum, Doc, so I thought it was the one Smith was peddling back at the Santa Ana case, which I thought WAS the Bomford fake. I said in my post that it was “he same old proven fake birth certificate”, meaning the Bomford fake.
“This copy was obtained by Lucas Smith through the help of a Kenyan Colonel who recently got it directly from the Coast General Hospital in Mombasa , Kenya . Here it is…..Note the footprint!!”
http://gretawire.forums.foxnews.com/topic/the-birth-certificate-from-mombasa
Well done!
WAYK needs to come back later with more cut ‘n paste stuff he doesn’t actually understand and hasn’t actually read!
Greg’s takedown of him/her/it was epic!
Hats off to Greg. He has far more patience with these folks than I do. I’m at the point of just saying, “you have no bloody clue what the hell you’re taking about, and your legal theories are total garbage.”
gorefan: “When did the Democratic Party become a government agency?”
Hawaii law (HRS 11-113) makes a grant of state power to political parties to act on behalf of the state in state-run elections to verify the eligibility of candidates for President. The US Supreme Court has taken the view that the “statutory system for the selection of party nominees for inclusion on the general election ballot makes the party which is required to follow these legislative directions AN AGENCY OF THE STATE in so far as it determines the participants in a primary election. The party takes its character as a STATE AGENCY from the duties imposed upon it by state statutes…” [Emphasis applied] HDoH confirm that the Democratic Party never requested anything to verify Obama’s eligibility.
Greg: “I’d point you to Inoue v. Inoue…where the COLB was upheld as a legal document.”
I first read the decision in the Inoue v Inoue appeal in July 2009 and considered it not relevant. Quote from Inoue v Inoue as cited: “Child One, a girl, was born on September 11, 1996…Gina and Egan were married on June 8, 1997. A daughter, Child Two, was born on December 30, 1997. Another daughter, Child Three, was born on May 20, 2003. At some point after Child One’s birth, Child One’s birth certificate was changed…Ms. Inoue stated that she put Mr. Inoue’s name on [Child One]’s birth certificate when her daughter was 3 and a half years old.” (Three and a half years after is September 11, 1996 is February 2000.) The matter in dispute was the legal paternity of Child One; the paternity of Child Two and Three was not in dispute. Given COLBs were not brought into circulation until November 2001; given nowhere in the citation is it established that the vital records used by the court etc were post-November 2001 COLBs; given internal evidence shows the case was decided on the basis of pre-2001 vital records; given the court never had to address the legal status of post-2001 COLBs; and given the court noted “A Finding Of Fact is…clearly erroneous when the record lacks substantial evidence to support the finding”, it is (to be generous) beyond the evidence to assert this case says anything relevant about post-2001 COLBs. Naturally, Greg is welcome to supply cite a more reliable citation.
Greg: “In the 1962 regulations, it said: The director of health shall make available for public information current lists of vital statistics events…”
I closely read the DoH regulations when they first became available in November 2009. It was a harmless error for me to quote the regulation as beginning in 1976 when the regulation also applied in 1962. (This shows how easy it is for details to be forgotten when files are kept exclusively on computer rather than printed out and highlighted.) Anyhow, this immaterial error does not invalidate my argument. For me to write (as I should have) that “Hawaii DoH did not have the legal authority to release to local newspapers lists of registered births until November 1962; prior to November 1962 families were entirely responsible for birth announcements and there is not a shred of evidence to the contrary” leaves Greg in exactly the same position as before: he must find evidence that in August 1961 Hawaii DoH had the authority to release lists of vital events to the local press etc. If Greg finds such evidence I will, naturally, concede the point.
Greg: “…there is no hearsay within hearsay problem for the vital records.”
Vital records are ALWAYS hearsay, with a dedicated exception in FRE. Greg makes the assumption that a Hawaii COLB referencing a 1961 birth is THE vital record of that birth; not so, it is notification that such a record exists elsewhere i.e. hearsay within hearsay, thus titled merely a Certification (“the state or corroboration of being certified”). Here is the hearsay within hearsay FRE Rule (805): “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.” A document may be admissible under some hearsay FRE Rule, but under 805 hearsay within hearsay contained in the document is excluded from evidence unless it can be exempted under ANOTHER Rule. FRE 805 plainly allows no exceptions, not even for vital records. Numerous court decisions support FRE 805 in practice. When Greg says that US v. Marguet-Pillado and US v. Hajda have nothing to do with vital records this avoids the principle; these cases perfectly illustrate how hearsay within hearsay (Rule 805) has been interpreted by numerous courts. In both cases a hearsay document was admitted; hearsay within this hearsay evidence was accepted in Hajda and excluded in Marguet-Pillado because in one case it satisified and in the other did not satisfy another hearsay Rule. Even assuming a COLB referencing a 1961 birth is a genuine vital record, Greg still has the task of attempting to show how Obama’s alleged COLB qualifies for special exemption from the plain language of FRE 805, which clearly allows no such exemptions.
Greg: “You mean like Chapter 8B, 2.4,B(1)(b)? Standard certified copies shall contain an appropriate certification statement …signature…may be…entered by mechanical means.”
Another harmless error that does not materially affect the argument. First, I hope Greg agrees that DoH regulations cannot trump Hawaii law, which makes no statutory provision for facsimile signatures in vital records. Second, in 1976 (when the regulation cited was written and before COLBs were invented) a standard certified copy contained ALL the registration information (other than medical), whereas a COLB certainly does not contain all the registration information, and under Hawaii law (338-13) is not equivalent to a standard certified copy; therefore a COLB is not legitimated by this illegal regulation concerning facsimile signatures. Third, although there is something in the 1976 regulations called an “abbreviated copy” to which Hawaii DoH wanted to apply facsimile signatures, its function is not stipulated in the regulations and Hawaii statute law precludes anything less than the full contents of a registration being considered equivalent to a certified copy. Fourth, DoH acknowledges that an “abbreviated copy” is a COLB. Fifth, a COLB explicitly states it operates in accord with HRS 338-13 and thus is evidence of nothing more than the “fact of birth” (notifies a registration). Sixth, as shown directly above, if the hearsay within hearsay provisions of both Hawaii and federal law must exclude a COLB referencing a 1961 birth unless some HRE-FRE exception is found, then how could an illegal facsimile attestation, similarly excluded by both Hawaii and federal law, make it admissible?
Greg: FRE Rule 902(4) “The notes of the FRE itself shows that you are incorrect.”
Terms: Federal Rule of Evidence 902(4) is designed to admit into evidence “certified copies of public records…AUTHORIZED BY LAW to be…recorded or filed in a public office.” (Original documents i.e. letters, memos, internal processing records etc are not authorized by law.) Rule 1005: “The contents of an official record…if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has COMPARED IT WITH THE ORIGINAL.” Black’s Law Dictionary defines “certified copy” as a “copy of a document or record, signed and certified as a true [exact] copy by the officer to whose custody the original is intrusted”; Webster’s New World Law Dictionary defines “certified copy” as a “copy of a document to which a statement, usually by the person who issued or is keeping the original, affirming or swearing that THE COPY AND THE ORIGINAL HAVE BEEN COMPARED and that the copy is an EXACT REPRODUCTION of the original.” [Emphasis applied throughout]
Greg forgot to mention that he is actually quoting from the Advisory Note to Rule 902(4) itself, and omits the sentence which follows his quote: “It will be observed that the certification procedure here provided [902(4), from which Greg cited] extends only to public records, reports, and recorded documents, all including DATA COMPILATIONS, and DOES NOT APPLY TO PUBLIC DOCUMENTS GENERALLY. ” Which is why Professors Mueller and Kirkpatrick, sufficiently authoritative to be cited in the Advisory Notes, state: “Rule 902(1) authenticates only ORIGINAL public documents and records. Authentication of copies of public records is addressed by FRE 902(4)…Courts sometimes erroneously cite this provision [Rule 902(1)] where the public documents received are copies rather than originals….FRE 902(4) provides for the self-authentication of copies of official records or reports, or documents recorded or filed PURSUANT TO LAW in a public office…” [Emphasis applied throughout]. FRE 902(1) concerns paper documents NOT filed pursuant to law in a public office.
Greg acknowledges that a COLB claims to be no more than a “True Copy Or Abstract”. A COLB drawn from a 1961 record is hardly a legal true copy if it does not reproduce the exact contents of the original record, and no COLB can be presented in original form, because in that form it is an electronic file stored in a hard-drive inside a Hawaii DoH server rack. If Rule 902(1) authenticated electronic records or certified copies of public records then Congress would not have mandated another Rule – 902(4) – to perform exactly this function.
As for Judge Grimm et al in Akron Law Review, Greg chose not to quote this passage: “Although not specifically addressed in Lorraine [v Markel], courts have begun to analyze the self-authentication of ESI under Rules 902(4)… [Grimm now quotes Mueller and Kirkpatrick] ‘The primary purpose of Rule 902(4) is to make it unnecessary to remove original records from their official custody for litigation, for modern copying methods and the integrity of those certifying the copies offer some assurance against the possibilities of mistake or fraud’. [Grimm ends Mueller and Kirkpatrick quote] Also, Rule 902(4)’s reference to ‘data compilations in any form’ has been interpreted to include electronically stored or recorded data and COMPUTER OUTPUT…. [consequently] when relying on Rule 902(4) when self-authenticating ESI [electronically stored information]– as REQUIRED BY RULE 902(4), a proponent of ESI must still obtain a certificate of a custodian in order to ensure the information is true, accurate, and was properly recorded. If not, then the ESI will not fall under the purview of Rule 902(4), and as a result, will not be self-authenticating.” [Emphasis applied] NOWHERE is this article does Judge Grimm make reference to FRE 902(1) ever being available to authenticate electronic records. Greg touches on Grimm’s reference to his own opinion in Lorraine v. Markel (the most recent judicial opinion) concerning electronic records and various FRE Rules, but gives no detail: again, NOWHERE in Lorraine v Markel does Grimm ever state that FRE 902(1) is available to authenticate electronic records. Greg’s insinuation, from Grimm’s article, is that various FRE Rules admit a COLB as electronic record, yet FRE 902(5) only admits official publications e.g. pamphlets; 902(7) only admits trade inscriptions; and 902(11) only admits certified domestic records of regularly conducted activity subject to FRE 803(6); again, NONE of these Rules admits certified copies of public records. Indeed FRE Advisory Note on Rule 902(11) states: “A declaration that satisfies 28 U.S.C. Sec. 1746 would satisfy the declaration requirement of Rule 902(11), as would any comparable certification under oath.” That is, subscribed with a real, handwritten signature (facsimile attestation is NOT permitted in federal law) by “the custodian or other qualified person”: practically the same authentication standard as Rule 902(4) i.e. a real, handwritten signature “by the custodian or other person authorized to make the certification”.
Greg: “How about Rule 1005 PUBLIC RECORDS”
FRE Rule 1005 reads in part: “an official record…may be proved by copy…certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original”. Greg doesn’t reveal Judge Grimm’s only reference to Rule 1005, in either his article or opinion, is that it “describes how to prove the contents of public records, since it is obvious that SOMETHING OTHER THAN THE ORIGINAL must be used.” [Emphasis applied] Greg astonishingly suggests that 1005 admits the “contents of birth certificates, even when they aren’t the original, or a copy” in ANY form. However the Advisory Committee’s Note to 1005 has already warned such anarchy “would open the door to the introduction of every kind of secondary evidence of contents of public records were it not for the preference given certified or compared copies”. (In the context of FRE 1005, “or” here indicates synonymous entities). As Judge Grimm’s and the Advisory Committee’s authorities Professors Mueller and Kirkpatrick write: “An “official record” under FRE 1005 should be given the same interpretation as an “official record” under FRE 902(4) … [Under FRE 1005] when a public record is proved by a certified copy, the certification must comply with FRE 902(4)…[Certification which complies with 902(4)] should bear an apparent ACTUAL SIGNATURE…rather than a facsimile thereof…” [Emphasis applied] Otherwise, in the words of FRE 1005, it cannot be established that the certifier has actually non-routinely “COMPARED IT WITH THE ORIGINAL” as stipulated. Concurring, the US Deputy Assistant Attorney General wrote in 2008: “For the printout [of an electronic record] to be introduced under Rule 1005…it will have to be…certified correct ‘by the custodian…’ [under] Fed. R. Evid. 902(4) [and] it would seem advisable to exercise quality control to ensure that signatures and notarization markings on documents are clear and legible”. Only actual handwritten signatures are notarized.
It is clear that Greg must resist applying FRE 902(4) and 1005 to Obama’s alleged COLB because it does not comply with the requirements of those Rules (a handwritten signature and a non-routine comparison of the COLB database with a COLB printout), especially given nobody at HDoH will officially acknowledge the online images of Obama’s alleged COLB, not least by simply issuing a non-certified copy to anyone on request, as its regulations permit.
Greg: “Onaka is certifying that the information contained in the COLB is a true and accurate copy or abstract of the information contained in the records.”
By “information…in the records”, Greg means nothing more than SELECTED data ABSTRACTED from an originating paper record and entered into the COLB database, then printed out. If Onanka or Obama’s alleged COLB refers to or cites ANOTHER record which is not in evidence, that is hearsay within hearsay.
“Electronic Fingerprints”, Adam Wolfson, Michigan Law Review, Vol. 104, No. 1 (Oct., 2005):
“In essence, computer-stored records are human assertions stored in an electronic format. These records constitute “assertions” because they are ‘the by-product of a machine operation which uses for its input “statements” entered into the machine by out of court declarants’. Computer-stored records…are deemed the electronic equivalent of handwritten documents. Since they are created or maintained by a human, they are considered statements and must therefore satisfy a hearsay exception in order to be admitted…”
The COLB database has only officially existed since November 2001; Obama’s purported COLB was allegedly issued in 2007. Under FRE 805, Onaka cannot make admissible hearsay statements about Obama’s original paper vital records from 1961 (if they exist) because under Rule 803(8) such statements are restricted to someone with first-hand knowledge of the events recorded (Onaka wasn’t at HDoH in 1961); similarly, a COLB, as a contemporary record, under FRE 803(6) cannot make admissible hearsay statements about Obama’s alleged original paper vital records from 1961 because it did not exist at the time the information was recorded. A modern COLB cannot make admissible statements about a 1961 event. Only a certified copy of the record(s) from 1961 (if it exists), with contemporary signed attestations, is admissible.
Even were Obama’s alleged COLB admitted into evidence, his problems would have only begun: a COLB printout referencing a 1961 birth, under the Federal Rules of Evidence is not the complete record, and when “a writing…is introduced [the other] party may require the introduction…of any other part or any other writing which ought in fairness to be considered contemporaneously with it” (FRE 106); and is not best evidence (FRE 1002), because to “prove the content of a writing…the original writing is required” (i.e. the 1961 record). Obama brought to court would be compelled show a copy of his 1961 record, if it exists.
Greg: “what “watchdog” are you talking about?… the stance of the Department of Health…”
FUTTHESHUCKUP: “Dr. Fukino stated…”
Watchdog = Hawaii Office of Information Practices, which oversees Freedom of Information in Hawaii; whose Director in response to appeals against the denial of access to Obama’s records stated that denial of access meant the records exist. HDoH was caught in a double-bind: comprehensively denying access to all information on Obama was illegal and highly suspicious, while “for some reason” DoH was unwilling to obey the law and release what it could and must; therefore it chose to part comply with the law and fulfill some requests and obfuscate the rest. However this revealed a pattern that Greg wishes had remained hidden. The facts are that DoH has never officially acknowledged online images of Obama’s alleged COLB; that DoH claims it is not policy to comment on or report forgeries of its documents; that the provisions of Hawaii Freedom of Information (UIPA) requires all documents and records which inform a statement issued by a Departmental director (e.g. Fukino) must be released to the public, especially when the slightest public interest is involved (proven by the DoH web page Greg quotes); and Obama waived privacy issued when he posted online what he claimed were images of his Hawaii COLB. The various stances of HDoH are self-contradictory, legally degraded, and highly suspicious; there would be no controversy if Hawaii DoH simply obeyed the law and quit lying; so what’s to hide?
Keith: “[Obama’s] filing was not delayed and the registration has never been amended…zero evidence…”
HDoH refuse access to any document, however ancillary and trivial, concerning the amendment and delay of Obama’s records. Apart from being illegal where this applies, such denials of access, rather than answers indicating that no records are responsive to the request, are constructive admissions of the documents’ existence. The Hawaii Freedom of Information (UIPA) Handbook and the OIP lawyers confirm this, as do the otherwise unnecessary HDoH double-talk, illegalities, and lies. If Keith never recognizes such experiences and facts they will always remain a convenient nullity and refuge to him.
let me be the first to start……
when did HDoH say this and where can i see it ?
Wayk is a good example of the principle of voluminous insipidity. That’s the principle whereby if you really don’t know what you’re talking about, make sure and type lots and lots and lots. That keeps the people who do know what they’re talking about from answering effectively because of the sheer volume of stupidity they would need to address. Plus it keeps the people on the fence from seeing how ridiculous your ideas are, by hiding them in a wash of verbiage so great that reading it all becomes second to the need to keep from drowning.
My drill sergeant used to tell us to beware the man who uses 10 words in the place of two. He doesn’t know any more than you, but he’s dangerous because he thinks he does.
The 1959 statutes give the Board of Health the authority to make regulations regarding the disclosure of records (57-21). It is obviously false that there is no evidence that the Department of Health provided the birth notices to the newspapers. The best evidence of this is the newspaper announcement itself which was titled: “Health Bureau Statistics.” Other evidence includes the fact that the same announcement comes before and after the Obama announcement in two competing newspapers, very unlikely if they were ads placed by the parents. I think, WAYK, you should conceded the point.
That’s good advice.
I really don’t have the time or inclination to educate every Tom, Dick and Harry who failed evidence on the proper interpretation of the FRE. I’ll just wish you luck with your efforts. Surely you are on the cusp of invalidating the 2008 election.
Wake me when Obama is frogmarched from the White House.
If you’re a practicing lawyer, show your clients these posts so they can judge your competence (or lack, thereof).