In the final months of the 2008 presidential race, Sen. John McCain’s (R-Ariz.) campaign learned of a lawsuit filed in Pennsylvania that asked the state to strip Sen. Barack Obama (D-Ill.) of the Democratic nomination on suspicion that he was not an American citizen. The complaint for declaratory and injunctive relief was filed by Phil Berg, a former deputy state attorney general who left government in 1990 for a series of gadfly political campaigns. His last round of notoriety had come when he filed RICO complaints against George W. Bush, Saddam Hussein and multiple members of the Bush administration for “accountability” for the 9/11 attacks. Still, Berg’s complaint had gotten glancing local media attention, and the Democratic National Committee’s counsel had filed a motion to dismiss it. One lawyer who was doing some work for the campaign was tasked with reading Berg’s lawsuit and gauging its chances of success.
“The conversation was along the lines of ‘this is idiotic, but explain to me why,’” said the lawyer, who spoke under condition of anonymity to TWI. “I looked at whether the lawsuit was going to be dismissed. I said yes.”
Berg’s main problem was the one that has bedeviled the the small, but growing, number of lawyers and amateur attorneys who have filed frivolous lawsuits against President Obama on the “question” of his American citizenship. He and they have run up against the doctrine of standing, which requires plaintiffs to prove that they have been or will be harmed by the law that they’re challenging. Like the people who challenged McCain’s citizenship in 2008 and 2000, or the people who challenged Dick Cheney’s right to run for vice president because he, like George W. Bush, resided in Texas, “birther” plaintiffs have failed again and again to get their cases heard because they lack standing.
“We monitored the progress of these lawsuits against the Obama campaign,” said Trevor Potter, a Washington attorney who served as general counsel to the 2008 and 2000 McCain presidential campaigns. “The McCain campaign faced a series of lawsuits like this, too, alleging that he could not be president because he was born in the Panama Canal Zone. Both campaigns took the position that these plaintiffs lacked standing.”
But the flawed conception of the many “birther” lawsuits, coupled with the inexperience and foul-ups of “birther” lawyers, have only fed the frenzy over Obama’s legitimacy to serve as president of the United States. A survey of the lawsuits filed against Obama reveals a reliance on widely debunked rumors, bogus stories sourced back to web sites, affidavits from “experts” who refuse to provide credentials or even their real names, and frequent and blatant misunderstandings of basic constitutional law. The dismissal of “birther” lawsuits has allowed conspiracy theorists to believe that the information in those suits is accurate–a belief that manifests itself in the emails, phone calls, and town hall meeting rants that have pushed the theories into the mainstream media and the halls of Congress.
While they ruled out any chance of the ‘birther’ lawsuits holding up in court, lawyers for the McCain campaign did check into the rumors about Obama’s birth and the assertions made by Berg and others. “To the extent that we could, we looked into the substantive side of these allegations,” said Potter. “We never saw any evidence that then-Senator Obama had been born outside of the United States. We saw rumors, but nothing that could be sourced to evidence. There were no statements and no documents that suggested he was born somewhere else. On the other side, there was proof that he was born in Hawaii. There was a certificate issued by the state’s Department of Health, and the responsible official in the state saying that he had personally seen the original certificate. There was a birth announcement in the Honolulu Advertiser, which would be very difficult to invent or plant 47 years in advance.”
“Birther” lawyers and bloggers, who gained an unexpected prominence in the mainstream media, have consistently denied Hawaii’s own records of Obama’s birth. They have also built up a corpus of information which, they argue, would invalidate Obama’s claim on the White House even if he was born in the United States. These rumors, and the inability of “birther” lawyers to test them in court, have proven pervasive enough to fuel the conspiracy theories.
After the DNC requested a dismissal of Berg’s lawsuit, he responded in a Sept. 29, 2008 filing that cited numerous Internet rumors and incorrect citations of American and international law. Berg cited “Wikipedia Italian version” and “Rainbow Edition News Letter” as evidence that Obama had not been clear about which hospital he was born in; he alleged that Obama must have been adopted by Lolo Soetoro, the Indonesian man who married Obama’s mother when the future president was five years old, because he attended elementary school in that country. Because a contemporary school record referred to Obama as “Barry Soetoro” and listed his nationality as “Indonesian,” Berg argued that there was “absolutely no way Obama could have ever regained ‘natural born’ status.”
“That’s just completely wrong,” said Mitzi Torri, an Arizona-based immigration lawyer. Torri pointed to the Immigration and Nationality Act of 1952, which sets a high bar for renunciation of American citizenship. According to the INA, an American can only forfeit his citizenship if he commits treason, if he makes a “formal declaration of allegiance to a foreign state,” or if he becomes a citizen of another country “upon his own application or upon an application filed by a duly authorized agent.”
“Berg wants to say,” said Torri, “that this document from a school in Indonesia, which has no signature, which has no standing whatsoever, is more important than Obama’s birth certificate or our immigration law.”
Berg’s filings made other claims that have shown up in anti-Obama lawsuits and in the proliferation of “birther” Website. One relies on an audio tape of Obama’s step-grandmother Sarah Obama, who lives in Kenya, being goaded into saying (through a translator) that the future president was born in Kenya before quickly correcting herself. (A doctored version of this tape, which cuts off before the retraction, is posted on YouTube.) Another claim: Obama traveled to Pakistan in 1981, when it was illegal for an American to do so, suggesting that he used a non-American passport. The problem is that there never was any such ban.
“We have no record of any travel ban between America and Pakistan during that period or since,” said Noel Clay, a spokesman for the State Department.
“We got that from someplace,” Berg told TWI on Thursday. In an email, he added his paralegal was “reviewing” his files on Pakistan. Yet the false claim appears in Orly Taitz’s lawsuit on behalf of perennial presidential candidate Alan Keyes, which argues that Obama visited Pakistan “when entrance to Pakistan was banned to Americans, Christians and Jews,” proof that he gave up his American citizenship.
In October 2008, when Berg v. Obama et al was dismissed for lack of standing, the attorney told sympathetic reporters that the DNC had “admitted” the truth about Obama’s citizenship by not rebutting his claims. Joseph Sandler, who filed motions to dismiss Berg’s case and other Obama citizenship lawsuits as general counsel, explained why claims like these are never debunked by lawyers for the president.
“When you file a motion to dismiss, to try to get the case thrown out before any factual inquiry is made, the facts that the plaintiffs put into their complaint are assumed to be true,” said Sandler. “You have to show that even if the facts were true, they don’t have a case.”
As a result of that, extremely questionable theories and “facts” have become linchpins of ‘birther’ theories. ‘Birthers’ who refuse to acknowledge the legitimacy of Obama’s Certificate of Live Birth often cite the expertise of “Dr. Ron Polarik,” a self-described “expert in computer graphics” who maintains a blog at Townhall.com and has recorded a video, in which his face and voice are blurred, explaining how the image was “forged” with Adobe Photoshop. “Polarik” submitted an affidavit in support Orly Taitz’s Keyes case that is signed “XXXXXXXXXXX,” making it inadmissible.
“If it ever comes down to it,” explained Gary Kreep, another lawyer for Keyes, “we’ll use his real name.”
Some anti-Obama claims take the issue entirely out of the hands of the president or Hawaii officials. Carl Swensson, a conservative activist from Georgia, has organized “Citizens’ Grand Juries” that have indicted the president for treason. Mario Apuzzo, a New Jersey attorney, has sued Obama on the grounds that he never was, and never could be, a “natural born” citizen. Both men pass over precedent for “The Law of Nations,” the 1758 treatise by the 18th century French scholar Emerich de Vattel. In one translation, de Vattel writes that “the natives, or natural-born citizens, are those born in the country, of parents who are citizens.” That’s enough for some Obama ‘birthers’ to say that Obama might be a citizen of Kenya–as one constituent of Rep. Mike Castle (R-Del.) put it–but he cannot be a natural born citizen of the United States. “It’s what the founding fathers used,” explained Swensson.
Constitutional scholars consider this a dubious argument at best. “The framers of the 14th Amendment thought about this,” explained Elizabeth Wydra, chief counsel for the Constitutional Accountability Center. “They wanted to make sure that the children of slaves who were brought here illegally, slaves who were brought into this country after the end of the slave trade, would be citizens.”
Apuzzo is not convinced. He argued that the founders wrote the phrase “natural born citizen” for a reason; to make sure that no one with “blood ties” to another country could become president. He speculated what might happen if Gov. Bobby Jindal (R-La.), whose parents were Indian, became president. “India is a nuclear power. Here comes the president, who says we have to go in and attack Pakistan. Are we doing that because we are defending India’s interests? You just don’t know. You can’t have Constitutional rule if you allow this.”
Because of the dismissal tactics used by lawyers for the president, John McCain, and both political parties, believers in these various theories and readings of the Constitution argue that they have never been proven wrong. Although Rep. John Campbell (R-Calif.) explained his support of a House bill that would require copies of birth certificates from presidential candidates by saying it would “put all this to rest,” the very frivolity and obscurity of the challenges to Obama suggest the beginning of a conspiracy theory that will never be debunked to the satisfaction of its believers.