Do the “Birthers” Have a Point?

A couple of days ago, there were a number of diaries on the Rec List at Daily Kos gleefully trumpeting the news that the Pentagon had compelled a private military contracting firm to fire an employee Army Reservist who had challenged his military deployment orders on the grounds that Barack Obama had not yet proven that he is a “natural born citizen”. The comments were unanimous in their approval of the Pentagon’s action and derision of the soldier in question and his attorney.

More broadly, the “birther movement” is seen by progressives as a complete joke at best, and at worst a racist, even treasonous bunch of far-right xenophobes who cannot accept the fact that a black man with an African father could actually be elected President of the United States. There is never any acknowledgment of even the remotest possibility that there is any merit whatsoever to the cases being brought about this issue.

Nowhere in the progressive blogosphere have I seen anyone ask in an honest way the question of whether or not the birthers actually have a point. That kind of lack of intellectual interest and curiosity always raises red flags for me. For those who care to explore the merits of the case without screaming like banshees, please follow . . . but remember, “be excellent to each other . . . or else”.

Of Long-Forms and Short-Forms

The Constitution specifically requires that the President be a “natural born citizen” of the United States. Because of the age of his mother, and the fact that his father was a British citizen at the time of his birth, in Obama’s case this means that he qualifies because of the fact that he was born in the United States. When questions first arose in 2008 as to whether he was in fact born in the U.S., the Obama campaign released a “short-form” computer-generated abstract of his birth records — a Certification Of Live Birth (COLB) — that stated his birthplace as Honolulu, HI. The COLB is posted at FactCheck.org.

The issue has not died, however, for a number of reasons, but for our purposes, the legal cases hinge on the difference between the “short-form” COLB, which was released, and the original, “long-form”, hospital-generated, doctor-signed birth certificate which, assuming one exists, remains untouched and unseen in the vaults of the Hawaii State Department of Health. According to the rules governing such documents, a photocopy of the original, long-form birth certificate will be provided only upon the personal request of Obama himself or, presumably, pursuant to a court order, neither of which has yet occurred.  

From wikipedia:

Long forms, also known as certified photocopies, book copies, and photostat copies, are exact photocopies of the original birth record that was prepared by the hospital or attending physician at the time of the child’s birth. The long form usually includes parents’ information (address of residence, race, birth place, date of birth, etc.), additional information on the child’s birthplace, and information on the doctors that assisted in the birth of the child. The long form also usually includes the signature of the doctor involved and at least one of the parents.

.   .   .

Short forms, known sometimes as computer certifications, are not universally available, but are cheaper than photocopies and much more easily accessible. Limited information is taken from the original birth record (the long form) and stored in a database that can be accessed quickly when birth certificates are needed in a short amount of time. Whereas the long form is a copy of the actual birth certificate, a short form is a document that certifies the existence of such certificate, and is given a title such as “Certification of Birth” or “Certificate of Birth Registration”. The short form typically includes the child’s name, date of birth, sex, and place of birth, although some also include the names of the child’s parents.

wikipedia

A Distinction Without a Difference?

Having established that he has not in fact released his long-form birth certificate, the next argument would be that his short-from birth certificate is “good enough”, because (1) the short-form conclusively proves the location of his birth, (2) regardless of whether it conclusively proves the location of his birth, his privacy rights trump the public’s right to that information, or (3) long-form birth certificates can no longer be obtained in Hawaii. I think there are good arguments to counter each:

1. I would be willing to bet “dollars to donuts” that if this issue is ever heard on the merits by a competent judge in any U.S. court, the short-form will not be “good enough” and the long-form will be demanded and produced. I’ve had enough experience as a trail lawyer to know that judges look askance at any document introduced as evidence that is not the most original, most authentic, most complete document available to prove a given point. There are whole law treatises written on what that means in theory and practice, but I don’t think it’s likely that very many judges would consider a short-form computer-generated abstract of a person’s birth records to be superior evidence in comparison to an original, hospital-generated, doctor-signed, long-form birth certificate. But there’s really no point in arguing about it; at some point, one of these cases will probably get to trial, and at that point the judge will provide us with a definitive answer to this question.  

2. As a general rule, with certain limited exceptions, I believe strongly in a presumption of full disclosure of information about public officials. It’s not as though the release of Obama’s long-form birth certificate would in any way jeopardize intelligence operations, troops in the field, state secrets, details about his personal life, personnel issues, or anything else that I can think of. For personal security reasons, most people probably have a general interest in keeping their birth certificate private, but it’s not like the President of the United States doesn’t already have plenty of personal security concerns. The chances that the release of his long-form birth certificate as opposed to the short-form would in alter in any material way his personal security seems pretty remote to me, although maybe somebody could enlighten me here.

3. In Hawaii, the long-form still exists and could be obtained either at the request of Obama himself, or with a court order. The short-form is more commonly used simply because it’s cheaper and quicker.

Now let me be absolutely clear that I do not subscribe to any “conspiracy theories” about whether the short-form Certification of Live Birth posted by the campaign was forged, or any other wild speculation about the circumstances surrounding his birth, his travels as a young man, his enrollment in schools in Indonesia and California, etc.  As far as I’m concerned, all of that is just noise obscuring the basic question of whether or not he should be compelled to disclose his long-form birth certificate.

A final question could be asked: given that from a Democratic Party and progressive perspective, almost nothing good can come of this controversy, why stoke it? In my opinion, however, the principles openness and accountability to the rule of law and the Constitution are far more important to me than any one politician, political party, or ideological position.