Monday, August 11, 2008

Forget natural born. Let's talk Kenyan.

Updated: I've added a couple of clarifications. They appear in blue in the text.

Updated, August 19, 2008, at noon: Thanks to a comment by Jrs Dad I actually looked up The Master Nationality Rule of Article 4 of the Hague Convention of 1930. Article 4 says in its entirety:

A State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.

You can read the entire "Convention on Certain Questions relating to the Conflict of Nationality Laws" here.

You'd think I'd learn. Always go to the source. Sigh.

(I also corrected a couple of typos.)

It looks like the issue of Obama’s citizenship is percolating again. I actually have a theory about why this keeps coming up and I’ll try to get a post up on that in the next few days. In the meantime, however, I want to address the claims that are now being offered up.

I became aware of the latest Obama citizenship go-round because TigerHawk has up a post about Obama’s supposed dual US-Kenyan citizenship asking whether this is true and whether he should care. On the question of whether he should care, here’s my comment:

I care about this only because it highlights how short a time Obama has been under scrutiny on the national level and how many gaps there thus are in my knowledge of him.

As for dual citizenship itself, it’s not all that rare and often happens without the holder wanting it. I remember a guy I knew years ago. His parents - both US citizens - were living in Brazil (I think it was) because of work when the guy was born. Brazil considered him a citizen and always would. I remember his parents talking about how he might never be able to even visit Brazil as a tourist for fear he’d be drafted. Weird.

Based on what I’ve read so far, I don’t see any reason to care in the Constitutional sense. That is, I don’t see anything in this that means Obama is not a US citizen and it looks like if he ever did hold dual citizenship, he no longer does.

Barack Obama was born August 4, 1961. The circumstances of his birth mean that he was a United States citizen at birth. So the question is whether he was also a Kenyan citizen.

I found what claims to be the Kenyan Constitution and read some of what it says about citizenship. I believe the first article that applies is:

Article 87-2 which would mean Kenya considered Obama a citizen since he was born prior to independence (December 12, 1963) and his father was/became a Kenyan citizen on December 12, 1963. I’m assuming Obama’s father met the criteria in Article 87-1. I'm also assuming Obama himself was considered a British-protected person since I assume his father would have been such prior to Kenyan independence.

Since Kenya would apparently consider Obama to hold dual citizenship beginning on December 12, 1963, I believe the following article would also apply:

Article 97-2 which means Obama would have ceased to be a Kenyan citizen on his 21st birthday unless he “renounced his citizenship of that other country [the US], taken the oath of allegiance and, in the case of a person who was born outside Kenya. made and registered such declaration of his intentions concerning residence as may be prescribed by or under an Act of Parliament.”

I don’t imagine Obama did any of those things.

One of the commenters at TigerHawk provides a link to a post up at Gateway Pundit on the same issue. The comments there raise a couple of other issues.

One of the commenters at Gateway Pundit is talking about The Master Nationality Rule of Article 4 of the Hague Convention of 1930. I don’t have the energy to go look that up, but the commenter himself says the Hague Rule only applies if Kenya doesn’t recognize dual citizenship. Since Kenya apparently does recognize dual citizenship and provides for automatic loss of Kenyan citizenship if the holder of dual citizenship does not actively retain his Kenyan citizenship after turning 21, I don’t think the Hague Rule is relevant.

One of the commenters at Gateway Pundit is also talking about Obama possibly holding Indonesian citizenship. The theory here is that Obama’s mother gave up her US citizenship and Obama was adopted by his Indonesian stepfather and thereby magically became an Indonesian citizen.

It’s a little harder to find info on this but I found a Q&A page
cached by Google with this line:

A foreign child aged below 21 and unmarried, who is adopted by an Indonesian, will be eligible for Indonesian citizenship if the process does not cause dual citizenship.

Since Obama was a citizen of the US (and probably of Kenya) his acquiring Indonesian citizenship would have caused dual (actually triple) citizenship so it seems unlikely he became an Indonesian citizen. Furthermore, I have seen no evidence that Obama's mother gave up her US citizenship or that Obama was adopted by his mother's Indonesian husband.

(Yes, I know there are now stories out there about a new birth certificate being issued when he was adopted and him traveling to Pakistan in 1981 on an Indonesian passport. If the new birth certificate is true, I don’t think that matters as far as his US or his Indonesian citizenship is concerned. If the Indonesian passport is true, I’m still not convinced it would mean Obama is not a US citizen. Someone would have to look at US law to decide if Obama’s mother or stepfather could renounce his US citizenship for him. I’m thinking they could not. Note, also, that Obama was under 21 in 1981. Plus, isn’t NoQuarter the place that said they had tape of Michelle Obama saying ugly things? Which tape I, at least, have never seen.)

I have to believe that if there was anything solid to the whole Obama citizenship issue in any of its many permutations, it would have come out by now. Let’s look at the possible players who could have something solid on this:

If - as some people who give Clinton either way too much or way too little credit think - the Clinton camp has definitive information, they would have released it before this. If Clinton had the info and waited to make it a Denver surprise, she’d be destroyed politically.

If mainstream Republicans have this, I believe they’d release it now, too. This is too nationally damaging an issue to hold onto for political advantage. And even if you find it unlikely they would act nobly in this matter, they would run the risk of being badly damaged politically if it became known they had this information and sat on it.

As for fringe groups, I don’t see the advantage for them in sitting on this either:

If they’re Clinton supporters and they release the information in Denver, Clinton will be destroyed politically just as surely as if she’d released it herself. If they release it after Denver, things will go even more badly for Clinton especially if it’s discovered they had the information before Denver.

If they’re McCain supporters, I suppose they might see an advantage to not releasing the information until after the Democratic convention confirms Obama as the official nominee - just as a baseball manager won’t change his pitcher until after a hitter is announced. However, I still think it would hurt McCain. There’s no advantage to a McCain supporter holding it until after the elections: if McCain wins, it’s irrelevant. If Obama wins, we’re not going take a mulligan on the election.

I suppose if one wanted to be truly devious, one could argue that Clinton or a Clinton supporter has solid evidence that Obama is disqualified for the office of President on citizenship grounds. If Clinton becomes Obama’s vice-presidential pick and Obama wins, then the information could be announced after the inauguration and Clinton would presumably move up to be President. I have to think, though, that Clinton’s reputation would be so badly damaged by precipitating a Constitutional crisis that she’d probably immediately be impeached. So it seems to me that the only person who benefits from having solid information and sitting on it it Nancy Pelosi.


Anonymous said...

The best day to make a Federal Court filing claiming Obama is not a US Citizen -- Is the Friday before the Dem Convention.

Remember, the 'super-delegates' can vote for whomever they wish.

A Court filing, with large press conference to air out the evidence, just before the convention, would cause total chaos in Denver.

But, that is too much to wish for.
and, I haven't seen any solid case against Obama being a US Citizen.

Elise said...

Great avatar.

Your idea (diabolically clever) probably would throw the Democratic convention into chaos but I think the fall-out would hurt everyone. I just don't see any upside for anyone in making this a late surprise - except maybe the tabloid arm of the media. Regardless of who springs the surprise, Clinton and the Republicans would probably get blamed in about equal measure.

And I agree - I just don't think Obama's citizenship is a real issue.

It is interesting though to wonder who the Democrats would come up with if Obama was out (citizenship), Clinton was out (blamed for sinking Obama), and Edwards was out (for reasons we won't get into). I can't even remember what other Democrats were running way back in January.

JRs Dad said...

I essentially agree with your analysis - under Kenyan law, Obama was a citizen until age 21 when he stopped barring specific steps we can be sure he did not take (per your references to the Kenyan Constitution). A little nit to pick - Kenya does not recognize dual citizenship as under Section 97 one must renounce the citizenship of the other country when one applies for post-21 citizenship of Kenya.

Elise said...

I'll see your little nit, jrs dad, and pick an even smaller one. Kenya does recognize dual citizenship for people under 21. If the Hague Rule applies to the citizenship of a child when he is born (which it sounded like it did), I'd argue Kenya does recognize dual citizenship at that point so the Hague Rule doesn't apply. However, if the Hague Rule means a country must recognize dual citizenship throughout a person's life, that may be a different ball game.

Okay, forget all that. I went and looked up The Master Nationality Rule of Article 4 of the Hague Convention of 1930. Article 4 says in its entirety:

A State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.

You can read the entire "Convention on Certain Questions relating to the Conflict of Nationality Laws" here.

You'd think I'd learn. Always go to the source. Sigh.