Monday, December 29, 2008

Regarding Senate Resolution 511 Declaring McCain A "Natural Born Citizen"

What is more interesting about Senate Resolution 511, passed by the Senate on April 30, 2008, is not the resolution itself but the legal analysis of Theodore Olson (former Solicitor General) and Laurence Tribe (Harvard Law School Professor) on which the U.S. Senate relied to come to its conclusion that McCain is a "natural born Citizen" (NBC) and which Senator Leahy requested be printed in the RECORD.

The Senate was faced with the question of the citizenship status of a person born outside the United States to two U.S. citizen parents (McCain). Compare Obama's factual situation which could be (1) that he was born outside the United States to a U.S. citizen mother and a British/Kenyan citizen father; (2) born on U.S. soil to those same parents; or (3) number (2) and he was adopted by an Indonesian father which arguably caused him to lose his U.S. citizenship (assuming there is no other factual explanation for Obama's origins). Mr. Olson and Professor Tribe argue that there are two reasons why McCain is a "natural born Citizen."

First, they say that he is a NBC simply because he was born to two U.S. citizen parents, regardless of where he was born. In coming to this conclusion, they rely on the British Nationality Act of 1730 (which was in effect at the time of the writing of the Constitution) that basically said that children born abroad to parents who were English "natural- born subjects" were themselves English "natural-born subjects." They conclude that the Framers would have been influenced by such legislation when using the NBC term in the Constitution. But in coming to their conclusion, they do not adequately explain who the Framers would have included in the category, “Citizen of the United States, at the time of the Adoption of this Constitution. . ." What is also questionable in their analysis is that they also cite the First Congress Act of 1790, which gave "natural born Citizen" status to children born abroad to two U.S. citizen parents but fail to mention that in 1795 Congress amended that statute by taking out the words "natural born" and just leaving in "citizen." This amendment can be used to argue that the Framers did not intend children born abroad to two U.S. citizen parents to be "natural born Citizens" but rather only "Citizens." Remember that Article II itself distinguishes between a "natural born Citizen" and "Citizen of the United States, at the time of the Adoption of this Constitution. . ." Finally, they fail to reconcile their conclusion with the 14th Amendment which states that a"Citizen" is any person born or naturalized in the United States and subject to its jurisdiction.

Second, they say McCain is a NBC because he was born in the Panama Canal Zone which was a "sovereign U.S. territory" at the time of McCain's birth in 1936. They treat that territory the same as U.S. soil and maintain that under the 14th Amendment he is a "natural born Citizen." What they fail to properly explain, however, is how they get from the 14th Amendment's use of the term "Citizen" to Article II's use of the term "natural born Citizen." In fact, the authors do not address in their analysis the question of whether there is a difference between Article II's "natural born Citizen" and the Fourteenth Amendment's "Citizen."

Whether any of this can be used for or against Obama is another question. Again, Obama presents a different fact pattern from McCain. Mr. Olson and Professor Tribe in their first point state that McCain is a NBC simply because he was born to two U.S. citizen parents, regardless of where he was born. We do not know if their conclusion would change if he had been born to just one U.S. citizen parent. Again, they conclude that he was a NBC and not just a "Citizen." They also say on two occasions that "natural born Citizen" includes birth within our nation's territory and allegiance. This statement clearly suggests that being born on U.S. soil alone is not sufficient to make the child a "natural born Citizen," for the child's "allegiance" also has to exist at the time of the birth. Just being born on U.S. soil cannot possibly provide that allegiance, for then why include the term with the requirement of having to be born on U.S. soil. The issue for the U.S. Supreme Court, assuming that Obama was born in Hawaii, would be to decide what is meant by the child's "allegiance." Does it mean one or both parents have to be U.S. citizens at the time of the child's birth? I submit that allegiance must be absolute in all respects and that if one parent can cause that absolute allegiance to fail in any way, then it must follow that both parents need to be U.S. citizens at the time of the child's birth. Keep in mind that here we are not talking about Wong Kim Ark 14th Amendment "citizenship" but rather Article II "natural born Citizen[ship]." Also, the Supreme Court would have to decide what effect, if any, did the Indonesian adoption have on Obama’s U.S. citizenship, if he ever had any.

Finally, they also state that Obama was born in Hawaii on August 4, 1961. If this statement is not true and Obama knew it was not true, then he allowed a fraud upon Congress, various national and state institutions, and the American people when he voted for the resolution.

Mario Apuzzo, Esq.
December 29, 2008


Anonymous said...

I have been thinking about the information in the Congressional Record concerning S Res 511 today as well. Although the resolution is non-binding, couldn't the Senate Judiciary committee be compelled to revisit this issue (NBC) to consider Obama's eligibility for the sake of completeness, fairness, if not in order to uphold the Constitution? It does seem to me also that the exclusion of the Naturalization Act of 1795 which REPLACED the NA of 1790 is an error which should perhaps even invalidate their conclusion or force a review with better counsel. I would also like to suggest to you that the ruling in the case Perkins v Elg indicates to me that if Obama was actually a US citizen before going to Indonesia, he did not lost that status because of what his parents did. Thanks for writing on this subject!

Mario Apuzzo, Esq. said...

To: Ubirevera

In Perkins v. Elg, 307 U.S. 325 (1939), Marie Elg's mother and father were from Sweden. They emigrated to the U.S. Marie was born to them in New York. Her father naturalized in the U.S. just before Marie was born. When Marie was 4, her mother took her to Sweden. Her father later went back to Sweden when Marie was 15. Her parents never came back to the U.S. The only thing that her parents did was take her from the U.S. where she was born and bring her to Sweden. There was no adoption involved. When Marie turned 21, she came back to the U.S.

The Supreme Court found that Marie did no act of her own showing that she renounced her U.S. citizenship and that there was no treaty or congressional act which should cause her to lose her U.S. citizenship which she gained at birth in the U.S. The Court held that since Marie elected to come back to the U.S. when she reached majority, she once again enjoyed the U.S. citizenship status which she never lost to begin with. This the Court found regardless of what Swedish law said about her citizenship.

What is different in Obama's situation is that he was adopted by his mother's Indonesian husband and taken by both of them to live in Indonesia. Adoption carries legal consequences which were not involved in the Perkins case. Adoption could be a factor which distinguishes the Obama case from the Perkins case. A thorough review of the effects of an adoption has to be made. If an Indonesian adoption of a U.S. child causes that child to lose his U.S. citizenship under treaty or congressional act, then Obama's U.S. citizenship, if he ever had any, could not be saved by the Perkins decision. I do know that when an American couple adopts a foreign baby, that baby is given U.S. citizenship and any foreign citizenship is severed. A court would have to decide whether Obama's Indonesian adoption caused him to lose his/her U.S. citizenship from birth, if he ever had it. Applicable treaties and Congressional acts need to be consulted in making this decision. Philip Berg is arguing this issue now in the U.S. Supreme Court.

Mario Apuzzo, Esq.

Anonymous said...

1. Where's the proof that Obama was ever legally adopted? (Please do better than pointing to the his school records.)

2. Even if Obama was allegedly adopted, exactly what law of Indonesia confers citizenship to adopted children?

3. Exactly which treaties or congressional acts of the United States would affect the citizenship status of U.S. citizen child that was allegedly adopted by an Indonesian citizen?

Anonymous said...

Mr. Apuzzo,
Is there a way to determine if Barack Obama was investigated for security clearance? Those who unquestioningly support him take offense at the idea that he has not been investigated as any ordinary person would be. I believe this is a major reason for the skepticism concerning Berg's case. Most people would assume the background check has been done and therefore the charges are ridiculous. But has it been done?

There are claims that Obama has spent large sums of money (up to $1 mill) to keep his records from public view. I do not know where the numbers come from. Is it possible to determine this with any accuracy?

J Cornish

Mario Apuzzo, Esq. said...

To: J. Cornish:

Regarding investigating Obama, this is what Attorney Berg has to say in this filings with the U.S. Supreme Court. Below is a part of his application to Justice Souter:

"12. In a July 2, 2008 interview with Mike Trivisonno on the Mike
Trivisonno Show, WTAM 1100, Special Agent-in-Charge: C. Frank Figliuzzi of
the Cleveland FBI was asked if background checks are performed on elected
officials including Presidential candidates. Figliuzzi responded, “The short
answer is no, no we don’t, but they’re given top secret clearances because they’re
members of Congress, or Senators, or even higher ranking officials.” Figliuzzi
further stated, “Well, its part of democracy, its part of what the American people
want, they want to be able to vote for somebody to represent them in Washington
and they don’t want us to get in the way of that and we have no predilection to get
in the way of that.” In the absence of governmental vetting, it is up to the people
including Petitioner to question and ensure Obama’s constitutional eligibility to
serve as President of the United States."

Further on vetting, Obama, see file:///C:/Documents%20and%20Settings/HP_Administrator/My%20Documents/Obama/Blogs%20to%20Which%20I%20Submitted%20Articles/The%20Right%20Side%20of%20Life%20%C2%BB%20Properly%20Vetting%20Obama%3b%20Links%20to%20Numerous%20Articles%2012-29-08.htm. The article refers to one of my previous writings on properly vetting Obama and provides a lot of links on the question of vetting.

On how much Obama has spent on legal fees to keep his personal information secret, I cannot verify that. I have only seen various numbers thrown about on the internet (e.g. over $500,000 to over $800,000). I do not know if those numbers are accurate. I assume however that he has spend considerable sums if he had law firms working to keep his personal information secret. Someone running for President of the United States does not accomplish that just by making phone calls. Usually court orders are needed to seal documents. Court orders do not come easy.

Mario Apuzzo, Esq.

Mario Apuzzo, Esq. said...

To Anonymous:

Attorney Berg states in his applicaton to Justice Souter and Kennedy the following:

"24. In addition, it appears that Obama became an Indonesian citizen. When Obama was approximately four (4) years old, his parents divorced and thereafter, Obama’s mother, Stanley Ann Dunham, married Lolo Soetoro, a
citizen of Indonesia. Evidence points to the fact that Lolo Soetoro either signed a
government form legally “acknowledging” Obama as his son or “adopted” Obama, either of which changed any citizenship status Obama had to a
“natural” citizen of Indonesia."

I do not know what evidence Mr. Berg is referring to. He has alleged it in his papers to the U.S. Supreme Court. If his case is accepted, I would hope that he is entitle to a minimum of discovery which would be the proper device to get at much of the truth in this national debate.

As far as the laws of Indonesia and those of the United States which may determine the citizenship status of an Indonesian adoption or acknowledgment, I have not had the time to research those issues. I have only raised the questions in my post when discussing the Perkins v. Elg, 307 U.S. 325 (1939). Maybe someone else reading these comments would care to help us.

Mario Apuzzo, Esq.

Anonymous said...

The divorce papers from Soetoro and Dunham could be used to demonstrate that Barack H. Obama aka Barry Soetoro was adopted by Lolo Soetoro.

Mario Apuzzo, Esq. said...

To Ubirevera:

Excellent point!! Divorce papers are public. There would be a divorce complaint which usually states the relationship between parents and children. If there is an agreement between the parties resolving all issues, that is also filed as an exhibit with the court and becomes part of the final judgment of divorce and official record. Finally, any divorce judgment of the court is also a public document. The divorce judgment usually contain a lot of information as to children, custody, visitation, and parental financial obligations to take care of them. It would be very helpful if someone could gain access to these documents to see what they say. I hope that Obama has not obtained some sealing order from some court regarding the public viewing of these documents. May be someone can help.

Mario Apuzzo, Esq.

Anonymous said...

I included a link for the divorce papers in my previous post.

Mario Apuzzo, Esq. said...

I read the divorce papers in the matrimonial action Stanley Ann Soetoro v. Lolo Soetoro, filed in the 1st Circuit Court of the State of Hawaii. Obama's mother signed the complaint on June 15, 1980 and filed it on August 20, 1980, the same day that the Summons issued. Stanley Ann Soetoro's divorce complaint says that the parties (Lolo Soetoro and she) have 1 child below age 18 (which the judgment of divorce says is Maya Soetoro, born on August 15, 1970) and 1 child above 18 who is still dependent on the parties for education. The complaint does not name that second child but that second child could only be Barack Obama (or whatever his name was then), for there were no other children. The point is that Obama's mother said that she and Lolo had Barack Obama as a second child. Hence, Lolo Soetoro must have either adopted him or acknowledged him in some significant way for her to say that the couple had him as a child. This is pretty good evidence that Lolo Soetoro adopted or acknowledged Obama. Of course, I would like to see the adoption/acknowledgment records.

Mario Apuzzo, Esq.

Anonymous said...

"The point is that Obama's mother said that she and Lolo had Barack Obama as a second child. Hence, Lolo Soetoro must have either adopted him or acknowledged him in some significant way for her to say that the couple had him as a child."

It is a boilerplate form, and nowhere states that Lolo Soetoro adopted Barrack Obama. It is not proof that an adoption ever occurred. (This is about as compelling as pointing to the Indonesian school forms, which are not compelling at all.)

And how things "appear" to Berg is also not evidence there was ever an adoption. In sum, no evidence has been presented demonstrating than a legal adoption ever took place.

Even if this alleged adoption did occur, where is the legal authority that would indicate such an adoption would have altered Obama's citizenship? Again, none has been presented.

So, Elg was distinguished away based on nonexistent facts and law; in other words, it is not distinguishable at all.

Anonymous said...

Soetoro divorce papers name a minor child Maya and one attending the University (1980).As per Obama and his sister Maya their mother only had 2 children. According to the divorce papers Lolo Soetoro was Barack Obama JRs' legal father. The 1964 Obama Sr. divorce established that Sr was Bo's biological father.
As for the Indonesian citizenship that would be Law #62 1958. that law did not change until 1974. But, the requirements for Muslims did not change. You will also discover that because Lolo Soetoro was a Muslim, a religious ceremony had to be performed. It was not necessary to register the marriage with the civil registry at that time. A foreign woman who married a Muslim was required to accept the Muslim faith as her own. And according to Indonesian law she became an Indonesian citizen by virtue of her marriage. It is unknown if any of this was reported to the US Consulate. The era was not one of technology. Religious marriages were the only valid marriages if you were a Muslim. Any documentation of the marriage was sufficient to obtain a passport. Also, at the time foreign women were not allowed to work in Indonesia. By Obamas admission in his book and her own admission, in her dissertation, she worked in Indonesia, at that time, teaching English and later at Bank Rykat. If Ann Soetoro chose not to report she had obtained Indonesian Citizenship, and that she did not, officially, renounce her US citizenship, neither country would have known. I must also point out, that Maya Soetoro NG, by her own admission, was born in Jakarta Indonesia, and was an Indonesian Citizen under Indonesian law, which did not recognize dual citizenship, and neither did the US with respect to Indonesia. (see Hague Convention 1961.) Yet, her mother claimed in the divorce that,"the mother and child are US Citizens and father is Indonesian Citizen." She was silent as to Obamas citizenship. According to the court records a hearing was not held. Thus it appears the judge signed the divorce docs in chambers. Somehow, the signed papers were never entered into the record until Nov. 26, 1988 ( a Saturday on Thanksgiving weekend.)Indonesia has two sets of laws, civil and religious laws pertaining to Muslims. It is not difficult to obtain any kind of papers in Indonesia, for a price. It is called "milking cow."

Anonymous said...

Forgot to mention, in reference to adoption, a statement by an Indonesian citizen of the Muslim faith can be made at the Mosque and is also considered as part of the Muslim law as the child would be required to be Muslim. A record of this would be housed at the Mosque where the statement was made.

Anonymous said...

In re: SRS 511 prove that neither party wanted to give up his candidate so they put party and/or personal gain before their country. McCain was not born in the Panama Canal Zone he was born in the City of Colon Panama, which was specifically excluded from the PMZ area in the treaty. There were changes to the treaty but this was never changed. Notice the word PROVISO meaning provision.

Hays Buana Varilla Treaty (President Rutherford B. Hayes)
Article II treaty 1903
"The Republic of Panama grants to the United States in perpetuity, the use, occupation and control of a zone of land and land under water for the construction, maintenance, operation, sanitation and protection of said Canal of the width of ten miles extending to the distance of five miles on each side of the center line of the route of the Canal to be constructed; the said zone beginning in the Caribbean Sea three marine miles from mean low water mark and extending to and across the Isthmus of Panama into the Pacific Ocean to a distance of three marine miles from mean low water mark with the proviso that the cities of Panama and Colon and the harbors adjacent to said cities, which are included within the boundaries of the zone above described, shall not be included within this grant."

Mario Apuzzo, Esq. said...

To Anonymous 3:36PM

There are good legal arguments supporting the proposition that McCain is not Article II "natural born Citizen." Such a citizen has to be born on U.S. soil. If born on foreign soil to two U.S. parents, then he would be a statutory citizen, not a 14th Amendment citizen, and surely not an Constitutional Article II "natural born Citizen." There is plenty of case law and other sources which show that where McCain was born was not U.S. soil.

Anonymous said...

Most of our Senators are attorneys. There is no excuse they could possibly give to explain the complete disregard of the SHAM called an investigation. Heck,according to them the framers were natural born citizens. Then they did not post the investigation on Thomas until after the election. The Senators have a lot to answer for,But McCain paved the way for Obama, knowing full well what he was doing. Then he has the unmitigated gall to select "Country First," for his campaign slogan. I am so Angry I could chew nails.
I am going to pursue this matter through the gates of hell.