Back on November 20, 2008, I had reported on a posting from attorney Leo Donofrio in which he brought up the concept that an individuals’ at-birth citizenship is what counts when it comes to determining an ambitious individual’s eligibility regarding Article 2, Section 1, Clause 5.

It has recently been shown — first via TheBirthers.org and then by Mr. Donofrio — and even reported in the Sonoran News that there appears to be a few problems in FactCheck.org’s reporting over whether or not Mr. Obama did, in fact, lose his Kenyan and/or British citizenship.

From TheBirthers’ main page:

Something FactCheck said made me start thinking. Personally, I think a pediatrician cuts out more tonsils of newborns than FactCheck checks facts, as I have realized thatFactCheck lies in the most insidious of ways, not with blatant lies but with partial truths and the omissions of facts.

One such lie is about the question Q: Does Barack Obama have Kenyan citizenship? A: No. He held both U.S. and Kenyan citizenship as a child, but lost his Kenyan citizenship automatically on his 21st birthday. The Rocky Mountain News sets up a story on the internet to be debunked.  As proof that the article that appeared on the internet was false, FactCheck offered this explanation:

But the paper failed to note that the Kenyan Constitution prohibits dual citizenship for adults. Kenya recognizes dual citizenship for children, but Kenya’s Constitution specifies that at age 21, Kenyan citizens who possesses citizenship in more than one country automatically lose their Kenyan citizenship unless they formally renounce any non-Kenyan citizenship and swear an oath of allegiance to Kenya.

What FactCheck omitted was Section 98, subsection 6 and the footnote to the Kenyan Constitution which reads, *Sections 87 and 88, although spent in their effect, are retained for the sake of clarification. The same applies to section 97 (2) and (6) (b).

Section 98, subsection 6 reads as follows.

(6) In this section “the specified date” means–
(a) in relation to a person to whom subsection (1) refers, the date on which he attains the age of twenty-three years;

FactCheck omitted this, and that an Act of Parliament which is known as Chapter 170 The Kenyan Citizenship Act existed since 1963 that simply does not say whatFackCheck wants them to say. This is a lie of omission hoping that we would look no further, because if so, we would discover that Kenyan law does not automatically force a child who acquires citizenship by descent to choose which nationality they want on their 21^st Birthday. The law referenced below is from the Kenyan Embassy in Belgium.

Minors who are Kenyan nationals “by descent” (i.e. born abroad of Kenyan parents), become nationals “by registration” upon reaching the age of majority (21) and not “by naturalization”. They are required to renounce the nationality of their country of birth between their 21st and 23rd birthdays, and take the oath of allegiance. Any such persons who fail to do so on or before their 23rd birthday, automatically cease to be a citizen of Kenya on that day.

The law does not provide for dual citizenship for adults (those over 21 years of age), but allows minors (those under 21 years of age) to retain the citizenship which they may have acquired by birth, descent or registration, as the case may be. Any minor who acquires Kenyan citizenship is granted a period of two (2) years from their 21st birthday to decide on which nationality to retain. However, failure to renounce the other nationality on or before the 23rd birthday results in loss of Kenyan citizenship.

It is easy to see that he had the time between his 21^st and 23^rd birthday to make this decision; he did not automatically loose it on his 21^st birthday as FactCheck wants us to believe. FactCheck, upon whom everyone relied to investigate this matter. lied to the American public by omitting an important part of the Kenyan Constitution that blows their story out of the water: Obama did not loose his Kenyan citizenship on his 21^st birthday.

Let’s do some simple math. According to that brand new COLB FackCheck,  Obama was born on August 4, 1961. If we add 21 years to this date we arrive at August 4, 1982 and if we add 23 years we arrive at August 4, 1984. What happens if we divide these dates in half?  Do we get August 4, 1983?  Now are you beginning to understand the importance of the year 1983?

Mr. Donofrio added the following:

So, according to the Kenyan Constitution, the earliest date Obama’s Kenyan citizenship could have expired is August 4, 1984.

Factcheck.org was absolutely wrong when they reported Obama’s Kenyan citizenship expired on August 4, 1982.

This is not just an issue of numerical semantics.  Whether Obama was a Kenyan citizen on January 1, 1983 has important relevance to  Obama’s status in the United Kingdom and to Commonwealth Citizenship in the Commonwealth of Nations (formerly known as the British Commonwealth).

On January 1, 1983, the British Nationality Act of 1981 went into effect.  Section 37 of the BNA 1981 makes all citizens of commonwealth nations, who had been British Subjects before commencement of the BNA 1981, to thereafter “have the status of a Commonwealth Citizen“.

Section 50 of the BNA 1981 also states that Commonwealth Citizens are not aliens of the United Kingdom.

So, since Obama was a citizen of Kenya on January 1, 1983, he was also a Commonwealth Citizen and he was not an alien in the United Kingdom from that date.  Had Obama’s citizenship expired on August 4, 1982 -  as was incorrectly stated by Factcheck.org – then the British Nationality Act of 1981 (which didn’t go into effect until January 1, 1983) would not have governed Obama’s status.

The term “Commonwealth Citizen” – since the BNA 1981 – has  effectively replaced the former title of “British Subject”.  Up until the BNA 1981, both terms were synonymous and held synonymous rights and obligations.

It’s important to note that Section 35 of the BNA 1981 states:

s 35 Circumstances in which British subjects are to lose that status.

A person who under this Act is a British subject otherwise than by virtue of section 31 shall cease to be such a subject if, in whatever circumstances and whether under this Act or otherwise, he acquires any other citizenship or nationality whatever.

I’ve seen some very mistaken analysis of this section.  Let me set the record straight:  Even full British citizens ceased to be “British subjects” when the BNA 1981 went into effect.

The British government is doing away with the term, “British Subject”.  From January 1, 1983 and onwards, persons who were previously British subjects and citizens of the UK (or of any Commonwealth nation) are now “Commonwealth Citizens” of the Commonwealth of Nations.  “Commonwealth Citizen” has replaced “British Subject”.

If you were a British Subject before the BNA 1981, you are now (with very limited exceptions) a Commonwealth Citizen.  It’s important to note however, that prior to January 1, 1983, the term British Subject was still in effect and had effective legal implications.  We will return to this later.

Wiki says this about the Commonwealth leadership:

“Under the formula of the London Declaration, Queen Elizabeth II is the Head of the Commonwealth, a title that is currently annexed to that of British monarchy.“

Commonwealth citizens have the following rights :

In the United Kingdom, as in many other Commonwealth countries, Commonwealth citizens… are in law considered not to be “foreign” or “aliens”…  Commonwealth and Irish citizens enjoy the same civic rights as British citizens, namely:

• the right, unless otherwise disqualified, to vote in all elections (i.e., parliamentary, local and European ^[1] elections);
• the right, unless otherwise disqualified, to stand for election to theBritish House of Commons;
• the right, if a qualifying peer or bishop, to sit in the House of Lords; and
• eligibility to hold public office (e.g., as a judge, magistrate, minister, police constable, member of the armed forces, etc.).

So, as you can see from all of the above, the date which Obama may have lost his Kenyan citizenship creates a whole set of complex international law issues which have yet to be resolved.

The facts are important and do need to be checked and reported accurately.  If you are going about the world doing business under the name “Factcheck.org”, you should be held to a high standard of integrity and thoroughness, especially when reporting facts which intended to influence the national election of the United States.

The irony is that Factcheck.org was allegedly correcting The Rocky Mountain News story which stated that Obama was currently a dual citizen of Kenya.  Suffice it to say, I am not impressed with Factcheck’s fact checking abilities.  We shall see if they have the humility to correct their mistake.

Because of various statutory exceptions regarding the declarations mentioned in Section 97 of the Kenyan Constitution, the original report by the Rocky Mountain News – stating that Obama was a dual citizen of Kenya and the US – might have been accurate.  Information not currently in the public domain is necessary to answer this question as well as the question of whether Obama is currently a British citizen.

This documented false reporting by Factcheck.org coupled with the analysis below strips them of any previously assumed penchant for accuracy and objectivity.

Factcheck.org either dropped the ball on this one, or they reported the facts wrong on purpose as part of a propaganda package of deceit for the purpose of getting Obama elected.  It’s one thing to say that the public was aware of Obama’s foreign national issues – IF – the facts are reported accurately to the American people.

Since Obama quoted Factcheck.org and provided a link back to the site, it is important now that every single assertion Factcheck.org made be closely scrutinized.  I am in the process of doing a complete review of Kenyan and British nationality law.

Factcheck.org – Inaccuracy #2: While Obama’s status as a British citizen may have been short lived, Factcheck.org failed to state that his status as a British subject was not short lived.

Obama remained a British subject from his birth and after the Kenya Independence Act went into effect in 1963, all the way up until that status changed to Commonwealth Citizen in the BNA 1981.

Here’s what Factcheck.org reported:

When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed byThe British Nationality Act of 1948. That same act governed the status of Obama Sr.’s children…

Obama’s British citizenship was short-lived. On Dec. 12, 1963, Kenya formally gained its independence from the United Kingdom.

Obama only republished the first paragraph above, not the second which stated that his British citizenship was short-lived.

Please notice that Factcheck.org mentions Obama’s British citizenshipand his status as a British subject.  But when they conclude that Obama’s British citizenship was short-lived, they say nothing about his status as a British subject continuing, which it certainly did.

The report is not accurate as to Obama’s historical British Subject status in that the report implicates his British subject status was lost along with British citizenship back in 1963.  It was not.

The proof that Obama remained a British subject after 1963 exists in the Kenyan Independence Act of 1963 (KIA) which states in Section 2(1):

2.-(1) On and after the appointed day, the British NationalityActs 1948 and 1958 shall have effect as if-

(a) in section 1(3) of the said Act of 1948 (which provides for persons to be British subjects or Commonwealth citizens by virtue of citizenship of certain countries) there were added at the end the words ” and Kenya ” ;

Now we must look at the British Nationality Act of 1948, Section 1:

1.—(1) Every person who under this Act is a citizen of the United Kingdom and Colonies or who under any enactment for the time being in force in any country mentioned in subsection (3) of this section is a citizen of that country shall by virtue of that citizenship have the status of a British subject.

(2) Any person having the status aforesaid may be known either as a British subject or as a Commonwealth citizen; and accordingly in this Act and in any other enactment or instrument whatever, whether passed or made before or after the commencement of this Act, the expression “British subject” and the expression “Commonwealth citizen” shall have the same meaning.

(3) The following are the countries hereinbefore referred to, that is to say, Canada, Australia, New Zealand, the Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia and Ceylon.

According to the KIA, the words “and Kenya” are added to subsection (3) making all Kenyan citizens also British Subjects upon “the appointed day”, December 12, 1963.

It has now been conclusively established that President Obama could not have lost his Kenyan Citizenship on August 4, 1982.  This means his foreign nationality issues were not only governed by the Kenyan Constitution, but – as of  January 1, 1983 – he was also governed by the British Nationality Act of 1981.

My research has discovered multiple legal mechanisms which have the potential to establish that President Obama is now a full citizen of Kenya as well as the United Kingdom, the European Union, the Commonwealth of Nations and the Republic of Indonesia.  Unfortunately, information available in the public domain cannot answer these questions.

The American people, despite what they have been told by factions such as the unreliable Factcheck.org, continue to remain in the dark as to whether their President holds any foreign citizenships or nationalities at this time.

Obama, as President of the United States, is also the Executive head of the State Department.  Please review the following current policy of the Obama administration as to dual nationality:

The U.S. Government recognizes that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause. Claims of other countries on dual national U.S. citizens may conflict with U.S. law, and dual nationality may limit U.S. Government efforts to assist citizens abroad. The country where a dual national is located generally has a stronger claim to that person’s allegiance. However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there.(Emphasis added.)

The Obama administration policy is that dual nationals owe allegiance to the foreign country as well as the US.  The law applies to the President.  If he is a dual national, he owes allegiance to “foreign powers“.

THE SOLUTION

Whether President Obama currently holds the status of dual (or multi) national remains of paramount concern to the national security and the national sovereignty of the United States.  But unlike the issue of whether Obama is eligible to be President, the issue of whether he is currently a foreign national of any other nations can be resolved very easily.

All President Obama has to do is officially renounce citizenship in all foreign nations and supranational organizations.  This will remove any unwanted and possibly unknown lingering attachments to foreign nations which may exist at this time.

I have read many arguments alleging that foreign law should not effect US law.  While the issue is not that simple – as Obama’s own State department agrees -  the solution is.

President Obama, for the good of the nation, needs to officially renounce all foreign national ties.  Each nation to which he was attached has a legal mechanism by which he can permanently sever citizenship and/or nationality.

It’s time for the nation to call on the President to officially and legally renounce all foreign allegiance.  And it’s time for the President to respond. [emphases original]

Or, as commenter “elspeth” would say, “full disclosure.”

Attorney Mario Apuzzo similarly takes on the general nature of foreign citizenship disqualification via his recent posting, “Being Born Subject to a Foreign Power, Obama Cannot be President and Military Commander.”

Friday, September 4, 2009 Update: Leo Donofrio posts that FactCheck.org made a [at least one] mistake:

Yesterday, Factcheck.org admitted they reported a false factconcerning the alleged expiration of President Obama’s Kenyan citizenship.  They gave credit to this blog for correcting them:

Our Aug. 29, 2008, Ask FactCheck item asking whether Obama has Kenyan citizenship… stated that Obama did have dual citizenship as a child but that it expired as an adult.  But Leo Donofrio, a former lawyer, argues that we got the year wrong. He’s right about that, and we have corrected the item.

Initially, we said that Obama’s citizenship expired in 1982, on Obama’s 21st birthday. In fact, however, the Kenyan Constitutionprovides a two-year window during which one can decide which citizenship to keep. So, President Obama’s Kenyan citizenship expired on Aug. 4, 1984, not 1982, as we had initially reported.

We regret the error.

It’s not that they simply “got the year wrong”,  it’s that theymisconstrued the statute which required a deeper analysis in order to comprehend how to arrive at the proper date.

Unfortunately, they made another factual error above;  I am not aformer lawyer.  I am currently a lawyer with an active, pristine law license in the state of New Jersey.  I expect Factcheck.org to correct the defamatory statement.

Factcheck.org also incorrectly implied that I’m mixed up in the birth certificate issue.  I am not.  For those who don’t know the history of my blog, I’ve been asking a genuine legal question which stipulates Obama was born in Hawaii:

Since Obama admits he was a dual citizen governed by British law at birth, how can he be considered a natural born citizen of the US?

As to this question, Factcheck.org alleges a conspiracy theory.  But where is the conspiracy?  The US Supreme Court has never issued a ruling defining “natural born citizen”.  I have taken a position on this issue.  Others take the opposite position.  If taking a position thereto is a conspiracy theory, then their position must be the opposite conspiracy theory.

FACTCHECK.ORG or  FACTREFER.ORG?

Instead of addressing the legal question raised head on, Factcheck.orgaffirmatively adopted the viewpoint of another blogger whose credentials are unknown:

“We agree with his take on Donofrio’s argument.”

Factcheck.org was publicly humbled by the complexity of the statute they misconstrued, and so they should be referencing attorneys who will stake their public reputation upon interpretation of these laws.  If not, then how can Factcheck.org be a genuine “factchecking” resource?  Their proxy blogger has never provided evidence he is an attorney with professional qualifications to proffer accurate analysis of these difficult legal issues.

Bar exams exist for good reason – legal complexity.

MY CREDENTIALS

- My name is Leo C. Donofrio.  I am currently a lawyer fully licensed to practice in the State of New Jersey and the federal courts since 1991.

- I graduated from St. John’s University, School of Law with a J.D. in 1990.

- I passed the New York Bar Exam., the New Jersey Bar Exam. and received a high enough score on the Multistate Exam.  so that Washington D. C. has waived my need to take their Bar Exam.

BOGUS LEGAL REPORTING ENDORSED BY FACTCHECK.ORG

The legal analysis provided via proxy to their readers is juvenile, uneducated and wrong.  For example:

Because KIA 1963 removed citizenship of the UK and Colonies to the new Kenyan citizens, 1.—(1) above does not apply, and Barack Obama did not become a “British Subject” under this clause.

This is word hopscotch.  Read the codes for yourselves.  All UKC citizens who became Kenyan citizens under the Kenyan Independence Act of 1963 (KIA) simultaneously lost their UKC citizen status ANDsimultaneously gained the status of British subject under “2.-(1)(a)” of the KIA which states:

2.-(1) On and after the appointed day, the British NationalityActs 1948 and 1958 shall have effect as if-

(a) in section 1(3) of the said Act of 1948 (which provides for persons to be British subjects or Commonwealth citizens by virtue of citizenship of certain countries) there were added at the end the words ” and Kenya ” ;

That’s the KIA talking not Leo Donofrio.

However, adding Kenya to the list in (3) may well have granted him “Commonwealth citizenship“. (One may argue the equivalence of the two, but I prefer to keep the terms separate.) I have reservations about this because the Kenyan Constitution does not permit dual citizenship for adults which would seem a contradiction for someone like Barack Obama Sr.

The above expresses “reservations” as to whether President Obama became a Commonwealth Citizen in 1963 when Kenyan citizenship was bestowed upon him by virtue of an implication that the Kenyan Constitution would not permit Obama from obtaining Commonwealth citizenship.

That is absurd.

All they needed to check was Section 95(1) of the Kenyan Constitution:

95. (1) Every person who, under this Constitution or an Act of Parliament, is a citizen of Kenya… shall, by virtue of that citizenship, have the status of a Commonwealth citizen.

“Reservations”… are not possible.

Factcheck.org has endorsed an opinion which argues the Kenyan constitution prevents Commonwealth citizenship while it specificallyprovides for it.

The entire report is filled with this sort of Dr.  Seussian hooplah as follows:

Donofrio perhaps will claim that the British Nationality Act…and he might argue then that…

These are bogus claims I will never make.  It also attributes errors made by other attorneys to me.  Nothing listed in the full paragraph from which the above are culled will be part of my forthcoming report.

This bogus jumble is purposely confusing, false, legally defamatory, contradicts itself and does not deserve the respect of my attention.  This will be my final response to anything written by their proxy, the Dr. Seuss of legal analysis.

THE US NEEDS TO HEAR DIRECTLY FROM THE PRESIDENT

There exists multiple legal mechanisms which have the potential to establish that President Obama is a citizen of Kenya, the United Kingdom, the European Union, the Commonwealth of Nations and the Republic of Indonesia.

I will explain these in separate and individually published parts of a forthcoming report. Unfortunately, information available in the public domain cannot answer these questions.  We need to hear from President Obama.

Since the President has admitted to being a British citizen at birth, and we know he became a citizen of Kenya in 1963, he needs to tell the American people whether he retains any foreign nationalities.  We have never heard from the President on these complex issues.

Hearing from bloggers who do not have any legal authority to speak for him settles nothing.  It simply causes confusion and that very confusion testifies to the desperate need for clarity and guidance by the President.  Is he going to be a transparent leader, or will he continue to make believe we have no right to know?

If the President is confused and unsure of his legal status, then he ought to say so.

If he is not confused, he ought to explain.  This is because the average citizen can’t comprehend legalese and the myriad of complex possibilities these foreign statutes generate.

President Obama is an experienced orator and legal scholar.  A graduate of Harvard Law School and former law professor can certainly speak for himself.  It’s about time he does.  He works for us.  He is our public servant.

[Ed. While I'm proud of my WSOP Circuit Championship ring photo currently making the rounds, it was taken in March 2008 and doesn't represent the way I look today.  Below is a recent photo.] [emphases original]

Folks, I have been saying rather fervently — especially recently — that FactCheck.org is merely another blog on the Internet. I have always stated this under the auspices that, despite their apparently elitist backing, such elitism does not mean that they are infallible. This is an excellent case in point where they made a mistake in their reporting and — fortunately — they were willing, in this instance, to make amends for that mistake.

Speaking as an independent blogger, I think it’s great that FactCheck.org is openly admitting to being fallable; sometimes the discussions on this blog make the site appear as if it’s so far above the fray that they had thoroughly, exhaustively and completely verified everything that they report such that they wouldn’t make these kinds of mistakes.

While I think it’s great that they made a correct change, let’s start toning down the rhetoric that somehow the FactCheck.org blog is so much better than any other blog on the Internet.

See the following links regarding the eligibility saga:

• Obama’s Presidential Eligibility: What You Need to Know
• Obama’s Sealed Background Documentation
• Newsmax.com: Obama Birth Certificate Not Released
• What’s the Difference Between a Birth Certification Versus a BirthCertificate?
• Keyes v. Lingle: Forensic Examiner and IT Expert Disprove Certification of Live Birth
• Obama Citizenship Facts
• The State Department and Sen. Patrick Leahy’s (D-VT) Natural Born Citizen Resolution (April 10, 2008)
• Citizen Grand Jury Updates and Eligibility Lawsuit Listing

-Phil

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