“Simply Saying Something Is So Does Not Make It So” — Judge Land, Rhodes v. Obama

On September 16, 2009, the Hon. Clay D. Land of the United States District Court in Georgia dismissed Captain Connie Rhodes, M.D.’s action against Obama and the military, finding that the court had to abstain (when a court declines to hear a matter because of comity and respect for the unique military decision-making process) from deciding the case because for the court to exercise its jurisdiction would be an inappropriate intrusion into military matters. In his opinion, Judge Land said that Obama’s “ ‘short-form’ birth certificate has been made publicly available which indicates that the President was born in Honolulu, Hawaii on August 4, 1961. . . .” In deciding the abstention issue, even though there has not yet been any discovery allowed in the case, the Court commented on the underlying merits of the evidence presented by the plaintiffs on the question of Obama’s place of birth. In discussing what evidence the plaintiffs rely upon to show that Obama was not born in Hawaii as he claims, Judge Land address the Lucas Smith Kenyan Birth Certificate and said the following in Footnote 5:

“One piece of evidence Plaintiff’s counsel relies upon deserves further discussion. Counsel has produced a document that she claims shows the President was born in Kenya, yet she has not authenticated that document. She has produced an affidavit from someone who allegedly obtained the document from a hospital in Mombasa, Kenya by paying ‘a cash ‘consideration’ to a Kenyan military officer on duty to look the other way, while [he] obtained the copy’ of the document. (Smith Decl. Para. 7, Sept. 3, 2009). Counsel has not, however, produced an original certificate of authentication from the government agency that supposedly has official custody of the document. Therefore, the Court finds that the alleged document is unreliable due to counsel’s failure to properly authenticate the document. See Fed. R. Evid. 901.”

Obama wants to be President and Commander in Chief. He therefore has to show that he is eligible for the position. This means he has to conclusively prove, among other things, that he is an Article II “natural born Citizen.” Given that his father was not a U.S. citizen and his U.S. citizen mother was too young when Obama was born and therefore could not transmit U.S. citizenship to him should Obama be born out of the United States, Obama must first conclusively prove that he was born in the United States and was subject to its jurisdiction when born, thereby making him a Fourteenth Amendment born “citizen.” Once he conclusively proves that fact, he must then conclusively show that he is a “natural born Citizen” under Article II, a showing that he cannot make because his father was a British subject/citizen when Obama was born and Obama himself was born a British subject/citizen.

On the threshold question of place of birth, Obama has posted on the internet a computer image of an alleged Hawaiian Certificate of Live Birth (COLB) (not a Hawaiian long-form Birth Certificate). Regarding the place of birth issue, Judge Land said that he could not accept the Lucas Smith Kenyan Birth Certificate as reliable because plaintiffs’ counsel did not “produced an original certificate of authentication from the government agency that supposedly has official custody of the document.” But let us consider what Obama has produced to show that he was born in Hawaii. We know that he posted on his web site the image of a Certification of Live Birth (COLB) as proof that he was born in Hawaii. But we also know that numerous people have questioned the authenticity of this computer image. There have been allegations by some “experts” that the electronic image is a forgery. Many people have demanded that Obama produce to some official government authority for inspection an actual piece of paper which was used to produce the on-line image of the COLB. Many people have demanded to see the real long-form birth certificate so that conflicting information (including but not limited to statements made by Obama’s own family, Kenyan government officials, and African newspapers) regarding his place of birth can be put to rest. Numerous people have demanded that Obama release to the public the many other documents (education, travel, and employment) which can corroborate his birth place claim but he has refused to do so. Neither Obama nor the State of Hawaii nor any governmental entity or official has provided this information to the American public.

Judge Land found that because Obama overcame a “grueling” primary campaign and a “formidable opponent” [McCain] in the general election, “ample opportunity existed for discovery of evidence that would support any contention that the President was not eligible for the office he sought.” But what Judge Land described is a political process that works well when a candidate does not hide virtually all his important papers (including his real birth certificate). Indeed, we must also remember that there is also a legal process to any election which must be respected for that election to have any legitimacy in a Constitutional Republic. Given our standard of what the rule of law means, are we to simply accept an internet image of a document that, given the existing contradictory evidence, does not in itself conclusively prove that Obama was born in Hawaii and which in no way erases the many doubts that still exist regarding the place of Obama’s birth?

I understand that when a party presents a document to a court of law as evidence, that party must satisfy the rules of evidence for that court to receive that document into evidence. A judge confronted with such a document is bound by the law to apply the rules of evidence when deciding whether or not to accept that document into evidence. I therefore cannot fault Judge Land for his decision to refuse to consider the Smith Kenyan Birth Certificate. I am also not suggesting that this birth certificate has been shown to be authentic. But what Judge Land ruled regarding the Smith Kenyan Birth Certificate raises a much more important point. Judge Land was not willing to accept the Smith Kenyan Birth Certificate because as he said counsel did not “produced an original certificate of authentication from the government agency that supposedly has official custody of the document.” But he automatically and without question in effect accepted Obama’s on-line image of an alleged “short-form” birth certificate (the COLB) without Obama or anyone on his behalf producing the same “original certificate of authentication from the government agency that supposedly has official custody of the document.” Why did Judge Land not apply the same evidence standard to Obama’s on-line COLB as he did to the Smith Kenyan Birth Certificate? I understand that Obama was not attempting to introduce the internet image of his COLB or the paper version thereof into evidence and so Judge Land did not have to rule on the admissibility of that evidence. Nevertheless, if we are committed to learning what is the truth regarding Obama’s place of birth, should we not expect Judge Land in his comments to treat all documents equally until each document’s reliability can be sufficiently confirmed?

Should not the Court have been much more concerned with the question of whether a person occupying the Office of the President and Commander in Chief is truly born where he says he was than it was with the question of whether the Smith Kenyan Birth Certificate was authentic and therefore admissible into evidence? Something is wrong when a Court does not accept the Smith Kenyan Birth Certificate because there is no government agency certification as to its authenticity but it accepts an unconfirmed, on-line electronic image of a document that is not even a birth certificate as the only piece of hard evidence that allegedly shows that the President was born in Hawaii. Just like Judge Land rejected the Smith Kenyan Birth Certificate because no one presented “an original certificate of authentication from the government agency that supposedly has official custody of the document,” should he not also have reject Obama’s internet-posted COLB since he also never provided any such authentication document to the American people or to any competent government agency? Should we not be more concerned with making sure that the computer image of the COLB which Obama presented to the public and the actual paper version thereof and the long-form birth certificate are authentic than with making sure that the Smith Kenyan Birth Certificate presented in a court proceeding is authentic? I believe the answer is obvious. In short, is Obama’s evidence as to where he was born any better or even worse than that of Captain Rhodes’ evidence?

Why have some allowed such a double standard to exist? Why should anyone protect Obama to the point that he or she is willing to risk the nation’s very survival? What is so wrong in confirming whether something is true, especially when one can suffer devastating consequences if it is false? Is the price for knowing the truth about Obama's birth place and whether he is an Article II "natural born Citizen" so heavy that we just have to accept things the way we are told they are? Let us hold Obama to the same Alice in Wonderland standard Judge Land used in the Rhodes case-“simply saying something is so does not make it so.” And let us also remember that the emperor could have no clothes.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
9-18-09