Sunday, October 12, 2008

October, Surprise!

The question that is coming back to light, at least for some on the right, is the question of Barack Obama's citizenship.

There is a video out there of a Phillip Berg, a Philadelphia attorney, who has brought suit against Barack Obama challenging Obama's qualification to be President. The charge is that he is not a "natural-born citizen." The rationale? This is threeprong. First, Mr. Berg charges that Senator Obama was not born in Hawaii. Then he suggests that Obama was born in Kenya. Finally, as a "Just in case" charge, Mr. Berg asserts that Senator Obama renounced his citizenship by enrolling in school in Indonesia. His assertions almost seem plausible if you only listen to what he says. But let's look at this a little more closely.

The first issue presented is that of Barack Obama's place of birth. Senator Obama's birth certificate has been made available through his website. It has also been inspected by independent agencies (Mr. Berg implies that is not trustworthy because they are based in Chicago, and Senator Obama represents this part of Illinois), including Politifact. Newsweek has an article on this very topic. In a nutshell, it would take a pretty grand conspiracy to put all this in place, including the posting of a birth announcement in the Honolulu Advertiser in August, 1961 (viewable in the link, above). For some people, though, this will not be enough, in fact, nothing will be sufficient evidence for them. This is where it becomes interesting, because the argument is "All they have to do is produce documentation," which they have done, and which the challengers discount because it doesn't say what they want to hear.

However, just to be on the safe side, let's pretend for just one moment that Senator Obama was not born in Hawaii, but, rather was born in Kenya. Does this mean he is not a citizen by birth? Nope. While the Constitution, Bill of Rights, and 12th and 14th Amendments have been silent on the meaning of "Natural-born citizen," they are abundantly clear on what it means to be a citizen by birth, which is what appears to be generally accepted as the proper criteria for being elected President. There is no Supreme Court case on point, but the writings on the matter suggest that natural born is meant in contrast to a naturalized citizen. The U.S. Code, specifically 8 U.S.C. 1401 covers citizenship by birth. The clause that would pertain here (8 U.S.C. 1401 (g) reads in part:
[A] person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years...
This is what pertains to Senator Obama, as the argument would then have to be that his mother either 1) had not lived in the United States or its outlying possessions for fewer than 5 years, or that 2) at least 2 of those years did not occur after age 14. Essentially, the presumption would be that Senator Obama is a citizen by birth, and the burden to disprove this would be on the part of the movant, in this case, Mr. Berg. To my knowledge, no argument regarding the Senator's mother's places of residence over the years has been made, so, even if Senator Obama were born in Kenya, he's probably still a citizen by birth.

This is where the fallback position comes into play. Mr. Berg has also argued that even if Senator Obama was a citizen by birth, he renounced his citizenship when his family moved to Indonesia and he went to school. This takes some legal gymnastics to understand. The premise is that Senator Obama moved to Indonesia when he was five with his mother and stepfather. His stepfather enrolled him in school. At the time in Indonesia, you could only enroll in school if you were a citizen, which means that Senator Obama's stepfather would have had to have made Senator Obama a citizen of Indonesia. Also at this time, Indonesia did not allow dual citizenship at all, nor did the United States allow dual citizenship with Indonesia, therefore, the argument goes, Senator Obama's citizenship would have to be renounced, or at the very least, automatically revoked, and, upon returning to the United States, Senator Obama would have had to apply for citizenship, in effect becoming a "naturalized" citizen, thus rendering him unfit for the office of the President. You with me? You don't need to be, because all this is crap.

Again, all one needs to do is look at the law. If you go to 8 U.S.C. 1481, you can find the means by which one loses U.S. Nationality:
(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality - (1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years (emphases mine).
In other words, Senator Obama would have had to have wanted to lose his nationality at age five, which he could not do. But it gets better, because, again, Mr. Berg is saying that Senator Obama just needs to show that he is a citizen, but the burden is HIS to show that he lost citizenship:
8. U.S.C. 1481 (b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence (emphasis mine).
This is much ado about nothing.

What is interesting about this, is that it is making its rounds now. The question presented by some is "if this is nothing, then why not just provide the documents to show it?" Well, other than the birth certificate that has been shown to be bona fide, the answer might be because there is no need - this is summary judgment territory and Mr. Berg, as an attorney, knows that. But more to the point, this is a question that has been asked about Sarah Palin's and Senator McCain's records as well, and I think it's a valid question that deserves addressing.

What strikes me the most, though, is that this spectre is being resurrected at this time, and that the hopes of the Republican faithful rests in the muckraking done by an ardent Hillary supporter. While this would normally sound off the wingnut alarm in the Right, it's one of the few remaining pieces of ammo left to throw at Senator Obama, and that should not be Right.

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