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Friday, July 31, 2009

Those 'Crazy Birthers':
The Obama Eligibility Debate is Far More Complex Than the Media Pretend



You've no doubt seen the media trying to portray so-called "birthers" as fringe, lunatic conspiracy theorists. Even Fox News' Bill O'Reilly has taken several shots at the movement without first accurately reporting on what the movement is about.

To hear the story told by the MSM, "birthers" claim Obama was born in Kenya but, because Obama released a certificate of live birth from Hawaii, the argument is over and done. Not surprisingly, the media have failed to do their homework. Putting aside the fact that a certificate of live birth is not the same as a birth certificate, there are several other issues, entirely unrelated to Obama's birth certificate or his birth place, which have been totally unaddressed by the MSM.

(Chris Matthews, this is the part where you plug your ears and ignore facts and reason).

Let me first say that I think Obama was born in Hawaii and I also believe he is a citizen of the United States. I've not seen sufficient evidence to the contrary.

That said, Americans need to understand that simply being a citizen of this country (or simply being born in this country) does not make one a "natural born citizen." What's the distinction?

In order to be eligible and qualified to serve as the President of the United States you must be a "natural born" citizen, be at least 35 years of age and have resided in the U.S. for 14 years. (United States Constitution, Article II, Section I, Clause 5).

But what is a natural born citizen? You'd think that THIS would be the question being asked by the media...

There is difference between "naturalized" and "natural-born" American citizenship. Legal precedent on this distinction is a bit murky; while "naturalized" citizenship, "native-born" citizenship, "citizen at birth" status and American citizenship in general have been addressed several times by the Supreme Court, American "natural born" citizenship never explicitly has.

The Naturalization Act of 1790 defined natural-born status in this way:
"The children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens."
Note that is says citizens, plural. But this Act was revised five years later, and then excluded the phrase "natural-born." While this act speaks specifically to those born outside of the US, it does seem clear that our founding fathers saw a "natural-born" citizen as a child of two US parents.

Those who seek to simplify or dilute the definition of "natural-born" frequently point to the United States v. Wong Kim Ark case. That case was about:
"A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution,

All person born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
The majority opinion of the Supreme Court for this case (which is what sets precedence) did not explicitly comment on the definition of "natural born citizens." Instead, they simply said:
"The constitution nowhere defines the meaning of these words ['citizen' and 'natural born citizen']."
And they quite intentionally referred to Kim as "native born" instead of "natural born" throughout the ruling.

This precedent speaks nothing to the definition or application of "natural born citizenship," especially as it pertains to the presidency. It does however, address "naturalized" citizenship.

Perhaps the closest the courts have come to defining "natural-born" citizenship was in Minor v. Happersett, 88 U.S. 162 (1874): The Court stated (pp. 167–68):
"The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first."
The U.S. law in effect during Obama's birth stated if you are born abroad to one U.S. parent and a foreign national, the U.S. parent must have resided in the United States for a least 10 years, five of which were after the age of 14 in order to register the child's birth abroad in the United States as a "natural born" U.S. citizen. (Nationality Act of 1940, revised June 1952 and affirmed several times since). Since Obama was born in Hawaii, this law does not directly apply to him. It does, however, offer another specific definition of "natural-born" citizenship - one which confers "natural-born" status to multi-national children insofar as the US parent has resided in America for 10 years, five of which occur after the age of 14. Unfortunately, Obama's American mother was just 18 when she delivered him. So he fails to meet even this definition of "natural-born."

Where does this leave us? Well, we know that a child born of two US citizens on US soil certainly is a "natural-born" citizen. We also know that if a child has just one US parent and is born abroad, he can still be considered "natural-born" if that parent is over the age of 19 and has lived in the US for 10 years (five of which were after the age of 14). There is no clear precedent to extend the definition beyond that. So to those MSM who have so actively said, "He was born in Hawaii to an American mother, case closed!" - think again!

Barack Hussein Obama, Jr. was born to Stanley Ann Dunham (a U.S. citizen) and Barack Hussein Obama, Sr. (a National of Kenya and, therefore, subject of the United Kingdom). There is no American precedent which specifically suggests that "natural-born" citizenship might be conferred to a child of dual nationalities. Congress or the Supreme Court could easily make such a ruling so as to define "natural-born" status as conferred simply by being born on US soil, but doing so would not retroactively make Obama a natural-born citizen.

Yet, as I said earlier, legal precedent regarding the specific definition of "natural-born citizenship" is quite murky. Far be it from me to issue a finite definition of the term. All I'm seeking to prove here is that there is no justification for the self-righteousness I've seen in the MSM and other critics of the birther movement who assume that simply being born in America means one has "natural-born citizenship." The people who make such suggestions only show their very limited knowledge of the legal precedent.

So, the question of whether or not Obama is, definitionally, a "natural-born" citizen is the first concern of those "crazy birthers." It's a concern, by the way, which is entirely unrelated to any conspiracy whatsoever. It's merely a question of legal precedent. Doesn't seem like much of a conspiracy to me... it's a pity the Supreme Court won't hear any case bringing this issue up. Why? The Supreme Court has ruled that private citizens don't have "standing" to sue their president for this info. Why? Because a private citizen is not "uniquely damaged" by this problem. Lovely, right? God forbid the Supreme Court be asked to make a difficult decision on a matter of Constitutional definition which could massively effect the entire country...

The other, major concern those "crazy birthers" have about Obama's Constitutional eligibility to serve as our president relates to his Indonesian ties. Obama's American mother separated from her first husband, Barack Obama Sr., in 1963 when Obama was just two years old; they later divorced. She then married an Indonesian man named Lolo Soetoro; she and Barack Obama moved to Indonesia with Soetoro sometime between 1966 and 1967. Meaning lil' Barack was between five and six years old when his mother married Soetoro.

Here is Obama's registration card for Indonesia's Fransiskus Assisi school where Obama is registered under the name "Barry Soetoro" by his stepfather, Lolo Soetoro. Keeping in mind that Indonesian schools vary rarely let in any child who was not a citizen of Indeonesia, the school card lists Barry Soetoro as an Indonesian citizen born Aug. 4, 1961, in Honolulu, Hawaii. His religion is listed as Muslim.

But how could Obama's citizenship be listed as Indonesian? Simple, he was adopted by his new step-father. How do we know that he was adopted? Well, for starters, the papers filed in 1980 for Lolo and Ann's divorce cite Obama and his sister Maya as being the children of both parties, not just the mother. Had they not been adopted, this would not be the case. Not to mention, Obama assumed his step-father's last name, which for most rational people is a dead give-away...

What does this have to do with Obama's "natural-born citizenship" in America? Under Indonesian law, when a man acknowledges a child as his son, the son becomes an Indonesian State citizen.

To quote Indonesia Citizenship Law directly (Page 5, Article 21 (1-2)):

1) Children below the age of 18 (eighteen) or unmarried who are present and living in Indonesian territory, born from parents who have acquired Indonesian citizenship shall automatically become citizens of the Republic of Indonesia.

2) Children of foreign nationalities below the age of 5 (five) who are adopted through legal proceedings as children of Indonesia citizens will thereby acquire Indonesian citizenship.
And from Article 4 (8):
A citizen of Indonesia is...

8) Children born out of legal wedlock from an alien mother who is claimed by the Indonesian father as his natural child and such claim is declared before the child reaches the age of 18 (eighteen) or before the child has married
So, it's clear that Obama became an Indonesian citizen when he was adopted. Indonesia, to this day, does not permit dual citizenship, and it has been suggested that Indonesian law at the time Obama would have been adopted did not permit dual-citizenship to anyone - even adopted children. The Indonesian citizenship law was designed to prevent apatride (stateless) or bipatride (dual citizenship). Indonesian regulations recognize neither apatride nor bipatride citizenship. I am unable to find the original source of the "older" law which suggest this, though multiple blogs and Phillip Berg (one of the main attorney's suing Obama for his information) have cited it in the following way:
"It is stipulated that an adopted child has the same status as a natural child and that his or her relationship to the birth parents is severed by adoption.
...
on the condition of ratification of the adoption by the District Court: The law stipulates that children of mixed couples automatically assume their father's citizenship, and a divorced wife cannot take custody of her children because they have different citizenship."
The current law, however, does provide dual citizenship to adopted children. However, Section 6 (1-3) makes the following stipulations:
(1). The Indonesian citizenship status of children as determined in Article 4 Items c, d, h, and i, and Article 5 will effect in the dual citizenship of the child. Upon reaching the age of 18(eighteen) or upon marriage, the child must choose one citizenship.
(2). The decision to choose one of the citizenships as stipulated in Paragraph (1) shall be made in writing and forwarded to Officials and attach documents as determined by regulations.
(3). The decision to choose one citizenship as mentioned in Paragraph (2) shall be made within 3 (three) years after the child has reached the age of 18 (eighteen) or the child has married.
What would this mean for Obama? Either the blog chatter and "birthers" are correct in their assertion that older Indonesian law stripped the adopted Obama of his original nationality or, as with the current law, Obama must have had to make a denunciation of either his Indonesian or American nationality sometime between is 18th and 21st birthday.

Right about now you might be thinking does Indonesian law matter? Wouldn't US law supersede Indonesian law with respect to Obama's citizenship? And Obama couldn't have lost his American citizenship because he didn't willfully denounce it after the age of 18... that's not something his parents could have done for him when he was a child, right?

Not necessarily.

Let's first address this from the "birther" perspective that, under older Indonesian law, Obama would have been stripped of his US citizenship after he was adopted. Since Indonesia did/does not allow dual citizenship; the United States would not recognize dual citizenship with Indonesia (since the United States only permitted dual citizenship when both countries agreed, as per the Hague Convention of 1930). Since Obama was a “natural” citizen of Indonesia after his adoption, the United States could/would not have stepped in or interfered with the laws of Indonesia. In which case, he would become solely a citizen of Indonesia and would have had to become a naturalized American citizen when returning to Hawaii several years later - thus making him a naturalized, not "natural-born" citizen and, therefore, ineligible to serve as President of the United States.

From the perspective of current law, there is no suggestion that Obama would have been stripped of his US citizenship. He would have, under section 6 (1-3) of the Indonesian citizenship law, had to issue a written denunciation to Indonesia of either his Indonesian or American nationality sometime between is 18th and 21st birthday. Did he do it? Who knows, the man won't release his records!

But let us look at the possible paths he could have taken:
a) he wrote the Indonesian authorities sometime between his 18th and 21st birthday to tell them he had chosen his American citizenship
b) he wrote the Indonesian authorities sometime between his 18th and 21st birthday to tell them he had chosen his Indonesian citizenship
c) he did nothing and, therefore, is in violation of Indonesian law

If 'a' then either Obama or Indonesia should have the records to prove it. If 'b' then, according to INA § 349, 8 USC § 1481, Obama isn't even an American citizen, let-alone "natural-born." If 'c' then he's facing a whole world of legal troubles and scandal. But let's assume he did 'a.' If he waited until he was 21 to file his papers with Indonesia, that would certainly explain the rumors about his using an Indonesian passport to get into Pakistan in 1981. That's a pretty big "if," though. And if this is what Obama did, then he and Indonesia would have the records to prove it.

Which brings us back to the main point: I've no earthly idea as to whether Obama actually meets the qualification of a "natural-born" citizen. What I do know, however, is that there is certainly enough cause for concern and questions. To pretend like this is a simple issue which is immediately dispelled by his Hawaiian certificate of live birth is completely dishonest (or ignorant, as the case may be).

And even more astounding to me are the people who will argue with those "crazy birthers" for hours about legal precedent but with the same breath claim there is no uncertainty in the matter. If there is legitimate debate about whether or not our president meets the Constitutional requirements to be our president, then for Christ's sake - let's hear it out at the highest levels and stop pretending like it's a huge tin foil hat conspiracy. God forbid the American people ask their president to prove he's constitutionally qualified to hold the highest position in the land! Egads! What will they think of next? Asking you to show your driver's license when you order alcohol?! The horror!!!

The fact remains, there is just one person who can make this all go away: Barack Hussein Obama. In an instant, "Mr. Transparency" could release all of his records (as John McCain did when his natural-born status was in question). If everything is on the up-and-up, as Obama and his lapdog media purport, there is absolutely no reason not to release all of his birth, school, adoption and travel records. Assuming everything is in order, he will have done everything in his power to prove himself as Constitutionally qualified to the American people and the only people still talking about this conspiracy will then truly be, those "crazy birthers." All of this controversy has been fueled by his lack of transparency and stubborn refusal to be forthcoming with his documentation. Blaming the "birthers" before Obama has done everything in his power to clear up the concerns is ridiculous.

Until such time that Obama releases his records, it would be nice to see supposed "right-wing" blogs and media grow a pair and do some actual investigation and research into the more substantial concerns of this debate. There's a lot more to this than, "Was he born in Kenya?! OMG, is his birth certificate real?!" Pretending like this whole eligibility debate hinges on Obama's birth certificate is ignorant, willfully misleading or flat stupid... or all three.

In the words of Sarah Palin to the media, "Stop making stuff up!"
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