OBAMA HAS NOT MET HIS BURDEN OF PROVING HE WAS BORN IN HAWAII

By now, many of us know about the Certification of Live Birth (COLB) that Obama posted on the internet in June 2008 as proof that he was born in Hawaii. This document was touted by fightthesmears.com and factcheck.org as sufficient proof that he was born in Hawaii. Later on we learned about Hawaiian law in effect at the time of Obama's birth that allowed parents or guardians of babies born in a foreign country to register the foreign births in Hawaii and to receive a COLB as evidence of that registration. We also learned that only the original Certificate of Live Birth (BC), issued by the birth hospital, provides, among other things, the name of the hospital where a baby was born and the name of the attending physician that delivered the baby. We learned that the Department of Hawaiian Home Lands (a state agency that happens to detail the difference) states:

"In order to process your application, DHHL utilizes information that is found only on the original Certificate of Live Birth, which is either black or green. This is a more complete record of your birth than the Certification of Live Birth (a computer-generated printout). Submitting the original Certificate of Live Birth will save you time and money since the computer-generated Certification requires additional verification by DHHL."

After learning this information many concerned Americans had doubts about whether the COLB was sufficient proof that Obama was in fact born in Hawaii. But apart from the lax Hawaii law, there is another important point to understand about the COLB.

If one reads the document, one will see that at the bottom it states: "This copy serves as prima facie evidence of the fact of birth in any court proceeding." file:///C:/Documents%20and%20Settings/HP_Administrator/My%20
Documents/Obama/Birth%20Certificate%20Fight%20the%
20Smears%20Obama%20birth%20certificate.htm. The important words here are "prima facie evidence." "Prima facie" is a Latin phrase meaning "on its first appearance" or "by first instance." It is evidence which is adequate, if not invalidated, to confirm a particular intention or fact. It is evidence that is sufficient to raise a presumption of fact or to establish the fact in question unless rebutted. A prima facie case may be insufficient to enable a party to prevail if the opposing party introduces contradictory evidence. In other words, it basically means that on the face of it or on the surface there is enough evidence to prove the alleged fact, unless and until the alleged fact is contradicted.

What does all this mean? Obama has presented his COLB has proof that he was born in Hawaii. That document itself states that it is only "prima facie" evidence of that fact. As we have seen under the definition of "prima facie," the presumption that the fact exists fails when evidence contradicting that fact is presented. When evidence contradicting the alleged fact is presented, the interested party needs to present other competent evidence to prove the existence of that alleged fact. If he fails to do so, the alleged fact is not proven, even if the opposing party produces no further evidence.

Many concerned Americans have provided the public domain with evidence which contradicts the COLB's statement that Obama was born in Hawaii. They have presented the following: the existence of the lax Hawaiian law that existed at the time Obama was born which allowed parents to register their foreign born babies in Hawaii; Hawaii requires the original birth certificate to prove that one is a "native" Hawaiian which easily justifies concerned Americans requiring Obama to produce his original birth certificate to prove he is a "native" American; Obama's grandmother's statement that her grandson was born in Kenya and that she was present during that birth; the Kenya Ambassador to the United States, Peter N.R.O. Ogego, confirmed on November 6, 2008 during a radio interview with Detroit radio talk-show hosts Mike Clark, Trudi Daniels, and Marc Fellhauer on WRIF's "Mike In the Morning," that "President-Elect Obama" was born in Kenya and that his birth place was already a "well-known" attraction; the conflicting statements of Obama and his sister concerning in which Hawaiian hospital he was born; the failure of any Hawaiian hospital to confirm that Obama and/or his mother were present in any such hospital at the time of Obama's alleged birth in Honolulu; Director of Hawaiian Department of Heath, Fukino, said she has “personally seen and verified that the Hawaii State Department of Health has Sen. Obama’s original birth certificate on record in accordance with state policies and procedures," but she failed to say that the certificate shows that Obama was born in Hawaii; fightthesmears.com's and factcheck.org's current silence on the issue; the lack of any other corroborating document showing that Obama was born in Hawaii; the refusal of Obama to release for inspection his past documents (college and law school records and passports) which would shed some light as to where he was born; the failure of Obama to declare publicly after his COLB has been put into question that he was born in Hawaii; and Obama relying on state privacy laws to block the release of a certified copy of his birth certificate. This mountain of contradictory evidence is sufficient to cause the prima facie presumption of the COLB to fall. Obama therefore now has the burden to come forward with competent evidence to prove that he was born in Hawaii. To date, he has failed to come forward with that evidence. Hence, under these circumstances, how can the American people in good faith conclude that Obama was born in Hawaii which makes him a "natural born Citizen" and therefore eligible to be President? How can Obama in good conscious take the oath to be President on January 20th when so many Americans have put forward all this contradictory evidence regarding where he was born and he refuses to come forward with any other convincing evidence (like a certified copy of his original birth certificate) showing that he was born in Hawaii? Obama should do the right thing for everyone's sake and produce the evidence of where he was born.

(c) Mario Apuzzo, Esq.

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 14^th 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

How the Public Can Gain Access to Obama's Original Birth Records

I have said this before and I will say it again. There is a Constitutional requirement that a would-be President must be a "natural born Citizen." Someone running for President knows that this requirement exists and knows that he/she must satisfy this Constitutional requirement. This is a CONSTITUTIONAL REQUIREMENT. An individual running for President therefore knows two things: he/she wants to hold a public position and he/she must prove that he/she is a "natural born Citizen." I cannot imagine under any circumstance how that same individual has a reasonable expectation of privacy in his/her birth certificate and/or adoption records (if they exist) if those same documents must be relied upon to adequately prove that he/she meets the Constitutional requirements for the Office of President. No state law or even Federal law on privacy can trump the American public's need to know whether a Presidential candidate is a "natural born Citizen," a need that has its origins in the Constitution itself. Given this Constitutional requirement, a court could order that the private documents be released under seal and in camera (to the judge's chambers) for inspection by the court and the attorneys only, with an order that neither the court nor attorneys can reveal what the documents say without further order of the court. Once the documents are inspected and the relevant information is learned, the court could issue an appropriate order and the case would then proceed to its conclusion.

Mario Apuzzo, Esq.

December 29, 2008

Was Obama Properly Vetted for the Office of President?

Why do we currently have the massive debate over the question of whether Obama is constitutionally qualified to be President? On properly vetting Obama, our own political leaders, institutions, political parties, and main stream media have failed the people miserably and they should be taken to task after this is all said and done. One example of this failure can be seen from the August 12, 2008 interview by Hannity & Comes of Howard Wolfson, FOX News contributor and former Clinton communications director. Hannity asked: “Do you regret not vetting, you know, Senator Obama the way he should have been?” Wolfson responded: “No, I mean the media is tasked with the responsibility of vetting candidates. . . .” As we can see, all the players involved will simply point the finger at the other on the question of who was suppose to properly vet Obama. Another question that we need to ask is why was Obama not vetted properly?

Some concerned and well-informed Americans realize that our leaders have failed us in this regard and so have themselves demanded some straight answers-call it a vetting by We the People. These concerned Americans, in this time of crisis, have petitioned their government and political and legal institutions for help in resolving the question of whether Obama is Constitutionally eligible to be President. Their efforts have so far been in vain. Fortunately, these Americans have exercised their First Amendment right of free speech and have not had to rely on their government and these other institutions to have their grievance heard.

The internet has revolutionized society by giving individuals greater ability to guide their own destinies by participating in and benefiting from collective intelligence. Hence, concerned Americans have used the internet to bring to the fore the issue of Obama's eligibility to be President and have placed their hope in the U.S. Supreme Court to decide that issue. Some brave attorneys and pro se litigants, who have had the courage to put their necks on the line, have helped these concerned Americans. We the people should be forever grateful to them, regardless of what the Supreme Court decides. This whole process shows that we the people will not be fooled so easily. We will and must stand up and fight until we get a straight answer.

Mario Apuzzo, Esq.

December 28, 2008

OBAMA'S PERSONAL RIGHT TO PRIVACY CANNOT TRUMP THE RIGHT OF THE PEOPLE TO KNOW WHO THEIR PRESIDENT IS

The whole reason the AMERICAN PUBLIC cannot get credible information as to whether Obama was born in Hawaii along with other information revealing his past experiences seems to be Obama asserting a privacy right over his personal information. This right to privacy comes from State law and maybe could also have a basis in Federal law. But how can someone running for President of the United States, a public position to say the least, have any reasonable expectation of privacy over his or her personal information regarding who he or she is or what he or she has done in the past. How could any person running for President not reasonably expect to have to satisfy the Constitutional requirement that he or she is a "natural born Citizen?" How could any such individual reasonably expect to put legal blocks up which prevent the public from learning whether he or she is in fact a "natural born Citizen?"

Being President of the United States involves protecting national security at its highest level. Given that the United States is a nuclear superpower which can destroy the world and send all its inhabitants to their respective afterlives, I believe that not only do the American people have a right to know who their President is but probably also the rest of the world. Would America want some unknown person gaining control of the nuclear arsenals of Russia, China, India, Pakistan, and other nuclear power possessing nations? I believe that the "law of nations" would demand that any nation which will give such power to one individual should at least know the most basic information about that person(like where he was born and what are his or her past accomplishments), even though such information is no guarantee on how that individual will act once he or she gains power. Surely, under these circumstances, a person's individual right to privacy, whether grounded in State or Federal law, must give way to the AMERICAN PUBLIC'S (and that of the international community's) much weightier right to know who such a person is, for not only is America's survival at stake but also that of the World.

The public officials who have so far managed to keep Obama's personal information secret need to really understand the consequences of their actions. This is not some little "frivolous" political game (sour grapes, etc.) that concerned Americans are playing in wanting to know who Obama is. Other than President Chester A. Arthur, I do not know when in American history such an ongoing debate about where the President was born came up. Which leads me to the next question as to why then all the alleged "sour grapes" in this Election? Some people argue that today's birth place issue exists simply because Obama is the first African American who stands to become President and that the losers just cannot get over having to have a "Black" President. First, McCain is "White" and the birth place issue was raised by his political opponents without much public fanfare. Also, President Arthur was "White" and the issue was also hotly contested when he ran for Vice President. Additionally, I do not believe that so many truly concerned Americans would be giving this issue so much importance simply because Obama is "Black."

Let our Nation come together on this most important national security issue and put it to rest with WE THE PEOPLE having obtained the collective knowledge of who their next President is.

Mario Apuzzo, Esq.
Jamesburg, New Jersey
December 26, 2008