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Be careful what you pray for

Orly Taitz is thanking God [link to Taitz web site] for a ruling by DC Chief Judge Royce C. Lamberth that allows her to file 74 pages of motions and exhibits in the 2011 case, Taitz v. Astrue. I thought this case, a FOIA lawsuit to get at Obama’s Social Security records, was long-gone in October 2011 when Judge Lamberth denied Taitz’ motion for reconsideration of its summary judgment in defendant’s favor.

When the Court considers a motion for reconsideration, a party must show that there has been an intervening change of controlling law, that new evidence is available, or that granting the motion is necessary to correct a clear error or to prevent manifest injustice. Taitz is going for “new evidence” here, arguing speciously that she has proof that Obama is using the social-security number of one Harrison J. Bounel, born in 1890, and who has never been shown to even have a social-security number in the first place.

In his June 7 2013 order, Judge Lamberth notes:

Taitz has now, for at least the sixth time, failed to comply with her obligation in violation of Rule 5.2 [in regards to redaction of social-security numbers].

According to Taitz, she has now worked out a procedure for redacting the SSN, and has re-filed her motion for reconsideration. She didn’t get it 100%, but the judge must have given her points for effort (or more likely attempted to conserve judicial resources), saying in his June 17 Minute Order:

MINUTE ORDER. Pursuant to Federal Rule of Civil Procedure 5.2, the Court made minor additional redactions to plaintiff’s Motion [45]. Only the last four digits of the taxpayer-identification number and the year of an individual’s birth may be included in court filings. Signed by Chief Judge Royce C. Lamberth on 06/14/2013. (lcrcl3)

Without going back through all the paperwork in the case, at least in Taitz’ mind the issue today is whether or not SSA will release the Social Security application of Harrison J. Bounel. What Taitz and other birthers did was to ask for his name, a birth date of 1890, and Obama’s social-security number. That was rejected, of course, because their policies don’t allow the release of Obama’s records, records pointed to by his SSN. However, there is a slim chance that this suit will elicit Bounel’s records, since he is past the 120 years of age criteria for release of the records. The smart money says that if she gets the record (or a statement that no number was ever issued to Bounel) it will show conclusively that President Obama never used a social-security number belonging to Bounel, making Orly Taitz look like a fool

Be careful what you pray for.

The birther contribution to American jurisprudence

Dealing with frivolous litigation, whether filed by a seasoned attorney or a novice pro se litigant, is a bit like wrangling cats.

Robert J. Davis

Where's the Birth Certificate? billboardWhile one doesn’t usually combine “birther” and “contribution” in the same sentence, the birther phenomenon has left its mark on the US justice system through educational examples, black letter law, and a bit of humor to spice up otherwise dull legal briefs. This article details ways in which the birthers in general, and Orly Taitz in particular, have contributed to the law.

A good example of bad behavior

I don’t know whether they teach this at the William Howard Taft online law school, but there are certain standard reference works that attorneys rely on to inform their practice and to find the citations that they need to make legal arguments. One source is the Practicing Law Institute whose mission is:

To enhance the professionalism of attorneys and other qualified persons by providing, in a cost effective manner, the highest quality and most innovative programs, publications and other services to enable them to practice law competently and ethically, and to fulfill pro bono responsibilities.

In 2010, the PLI published a paper by Koral and Price titled: “Trying the Court’s patience instead of the case: common litigation mistakes” to draw the line between “zealous advocacy” and “impermissible or injudicious tactics.” One way of brightening the line is to give examples of what constitutes “impermissible or injudicious tactics” and the birthers, in the person of Orly Taitz, provide a featured example of being on the wrong side of the line. Writing about Rhodes v. MacDonald, where Judge Clay D. Land sanctioned Taitz:

Attorney Orly Taitz provides a notorious recent example of an attorney’s conduct succeeding more at irritating the judge than at advancing the interests of her client. A member of the “birther” movement, which challenges President Obama’s citizenship on the grounds that he had failed to adequately prove that he was born in the United States, Ms. Taitz filed a motion in connection with this litigation on behalf of a Captain in the United States Army to enjoin her deployment to Iraq. District Judge Clay D. Land held that the motion was frivolous, and further found that “Plaintiff’s motion is being presented for the improper purpose of using the federal judiciary as a platform to espouse controversial political beliefs rather than as a legitimate forum for hearing legal claims.”

Taitz was sanctioned for her conduct in the case because, as Judge Land said:

[t]his pattern of conduct reveals that it will be difficult to get counsel’s attention [and so a] significant sanction is necessary to deter such conduct.

The PLI article was written in 2010, before Orly Taitz brought a federal lawsuit against Judge Land. I wonder what the article would say if it were written today!

Black letter law

The Wikipedia article on Precedent says:

gavelIn common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts.

Black letter law is the body of cases that attorneys and courts look to for established precedent. If you have ever read a birther legal decision that involves dismissal for lack of standing, you will almost invariably see Lujan v. Defenders of Wildlife cited. Once the body of birther lawsuits built, one began to see citations on standing to decided birther cases, notably Hollander v. McCain and Berg v. Obama. More recently we see extensive citations to Ankeny v. Governor of Indiana alongside US v. Wong on the question of whether Obama is a natural born citizen and Robinson v. Bowen on ripeness of election challenges.

The precedential value of birther lawsuits now extends beyond the backwaters of birtherism; they have become mainstream precedent in several areas of the law and now appear in the standard reference resources used by attorneys.

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Amazing fact found in the National Archives: birthers will believe anything

Assuming that you are a rational person and that you haven’t been off-planet for the past few years, you know that Barack Obama was born in Hawaii in 1961, and it might come as a shock to you that his father Barack Obama Sr. had an “unnamed son” born in Kenya in 1961.

Nevertheless, that compendium of all things birther, Obama Release Your Records, reported that just such a “fact” had been found in the British National Archives in an article by “Dr. Eowyn.” ORYR later removed their article and replaced it with one containing a disclaimer:

Two very credible sources informed us that records regarding “an unnamed son of Obama Sr. was born in Kenya in 1961” cannot be confirmed as being at the British National Archives. We can’t say anything more until the sources publish their research.

So ORYR admits that they publish unconfirmed rumors — that’s hardly anything new. One need not wait for these unnamed sources because unlike unconfirmed stories about the British National Archives, the United States has archives too, and we know what’s in there.

Archive v. Archive

First, FOIA documents from the US Department of State show that Barack Obama Sr. did not leave the United States at any time between his arrival in 1959 and 1964. That means that if he fathered a son born in 1961, he did it in the United States.

If he did father a son in the United States and that son was born in Kenya, the child is certainly not sitting in the White House, because the US immigration reports also show that no US citizen (e.g. President Obama’s mother) traveled from Kenya to the United States by air for the entire period between July 1, 1961 to June 30, 1962 (boat travel would have taken too long).

The Kenyan government looked into the matter in 2009 and called birther claims “baseless.”

The fools at ORYR should have known better to than publish the story in the first place. It reeks of fakery because it lacks verifiable details, and it no doubt sprung from the story that Jerome Corsi had gone to England to look for something – perhaps the Olympics. This little trip to the archives does, however, give us a little insight into the birther mind. They will believe anything.

The 1961 vital statistics instruction manual: well I’ll be damned (updated)

In May of 2011, I sent in a Freedom of Information Act request for a copy of “Coding and Punching Geographic and Personal Particulars for Births Occurring in 1961.” They sent, instead the Geographic Coding Manual, and the “1960-1961 Natality Tape Files for the United States.” I filed an appeal saying it wasn’t what I asked for. Their reply was that the manual probably never existed, but all the subject matter experts they consulted said they had no such manual.

Wrong :!:

The 1961 manual exists, and a blogger contacted the National Center for Health Statistics in Maryland directly and got a copy. Well to put it mildly, I’m upset with the Department of Health and Human Services! Your federal tax dollars at work, indeed.

Of course, codes are codes, and the codes in the 1961 manual obtained by ladysforest are the same codes used for the tape files that DHHS sent me. So it turns out that if the Cold Case Posse ever had the manual, they outright lied  because the codes they showed on screen are not the codes in the manual, and in particular, code “9” is not “Not Stated.” If they didn’t have the manual, they lied about having it or documenting the the value of code “9.”

I’d love to leave a congratulatory comment over at the My Very Own Point of View blog, but three’s no comment box available. If it’s just me that’s blocked, I hope someone will post this:

“According to the Vital Statistics of the United States – Natality – 1961, the federal government classified and punched its Hawaii data from microfilm copies of state records. Any coding on the original Hawaiian forms was done by Hawaii and for Hawaii. The very fact there are code values on Hawaiian forms that are not in the federal data set proves that they were keying for themselves. At this point, it appears that neither the 1961, nor the 1968 federal codes are consistent with codes used by Hawaii for race. Good luck finding out more information.”

I would think that increased confidence in the documentation of the President of the United States would be good news for everyone, but not for ladysforest, who opened:

It’s never a good feeling to get bad news.  In this case the bad news is that the “shocking” information which Mike Zullo, Cold Case Posse leader, released on July 17th is debunked.  Yes, I said debunked.  By the actual 1961 Vital Statistics Instruction Manual. 

Update:

There is something extremely interesting about the coding of birth place of the mother. Let me quote what the manual says and then explain its significance:

If the birthplace is omitted or unknown, and race is stated as Negro, Indian, Aleut, Eskimo, Hawaiian, or Part-Hawaiian, punch 1.

If the birthplace is omitted or unknown, and race is stated as Negro, Indian, Aleut, Eskimo, Hawaiian, or Part-Hawaiian, punch 1.

Code “1” is the code for “Native” (i.e., born in the United States). The federal government in 1961 recognized that the term “negro” was an American term so strongly attached as to assume that anyone “negro” was born in the US! No such association was made for “white.”

What is equally discomfiting to the birthers is that despite their claims that “African-American” could never be used in 1961, look at what the manual says:

If the racial entry is "C," "Col.," "Black," "Brown," or "A.A," "Afro-American," and the birthplace is the United States, consider the parent’s race as Negro [for the purposes of determining the child's race]. If the birthplace of parent is not in the United States code as other nonwhite.

And finally, if no race information is known at all, it is coded “white.”

You see why I wanted this manual?

I have a FOIA already submitted for the 1961 data. Note that this data set does not have personally identifying information. Data from later years is available.

Here’s the damned thing:

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Indicting Sheriff Joe and the Cold Case Posse

The charge

Sheriff Joe Arpaio and Mike Zullo are charged with fraud and fabricating evidence.

The crime scene

On July 17, Maricopa County Sheriff Joe Arpaio held a press conference featuring the results of an investigation by his volunteer “Cold Case Posse” presented by “lead investigator” Mike Zullo. The centerpiece of their presentation was a claim that President Obama’s birth certificate is a fake because of internal inconsistencies. The argument goes:

The race of Barack Obama’s father is shown as “African” on the birth certificate, but next to that is a penciled data entry code of “9” that should indicate “not stated.” The code is wrong, proving that the form is a fake.

In support of that very serious allegation they presented a race code table taken from what they described as a “1961 vital statistics instructions manual.” They lied. Here is a screen shot from the Cold Case Posse video of the purported 1961 manual.

image9

How do we know that they lied?

The US Public Health Service published Vital Statistics of the US – 1961 – Volume 1: Natality, a report of births in 1961 that’s available online.

image

In that report is stated on page 5-7:

Births in the United States in 1961 are classified for vital statistics into white, Negro, American Indian, Chinese, Japanese, Aleut, Eskimo, Hawaiian and Part-Hawaiian (combined), and "other nonwhite

Only the Cold Case Posse code table doesn’t have separate codes for Aleut and Eskimo and so it could not be the code table for 1961. Later on, the Natality Report includes  footnotes to table 4-2:

image_thumb[1][1]

This shows unambiguously that the real coding in 1961 distinguished between Indian, Aleut and Eskimo. The Cold Case Posse codes lump them all together and so could not be what was used for federal birth reporting in 1961. Whatever codes were really used in Hawaii in 1961, they are not the ones the Cold Case Posse claimed.

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Birthers doubt Doc FOIA response

Well this is interesting. I conclusively proved that the Cold Case Posse showed a 1968 vital statistics manual in one of their videos, claiming it was from 1961. This was proven by links to copies of the 1968 manual on a government web site.

However, I further showed an FOIA response I received last year which is the real 1961 data specification. Now a birther is questioning the veracity of that document. Well if they question Barack Obama’s birth certificate, verified by the State of Hawaii, I suppose one should expect them to pick at my document. Heck, it might even have layers! I hope the birthers forensic document experts will spend a few weeks working on that!

Long term, it’s trivial to verify my document. Just file a FOIA with DHS and you might even mention my request number 11-00673. However, there were some specific objections (in italics), and I will answer those now.

  1. I am quoted as saying: “In 1961 Hawaii, for the first time, participated in the National Center of Health Statistics statistical report on births, 1961 Vital Statistics of the US – Volume 1: Natality (VSUS).” The objection is that Hawaii also participated in 1960; therefore, I’m not credible. Well, I’m not infallible, and in this case I was wrong. When I am wrong, I correct my mistakes as I have this inconsequential one made last March.
  2. Dr. Conspiracy claims to have obtained through a freedom of information request, (sic) it gives separate coding categories for Aleut, Eskimo, Filipino, Hawaiian and Part-Hawaiian, supposedly used in 1960 and 1961. The 1960 Natality Report says that those classifications were simply lumped together as “other races.” IOW, they wern’t (sic) coded separately. However, the VSUS doesn’t say that they weren’t coded separately, but that they were statistically reported together. Computers are really good at adding numbers. This objection is nonsense.
  3. The 1961 Report specifically says: “Births in the United States in 1961 are classified for vital statistics into white, Negro, American Indian, Chinese, Japanese, Aleut, Eskimo, Hawaiian and Part-Hawaiian (combined), and “other nonwhite. Dr. Conspiracy’s alleged coding document doesn’t allow for Hawaiian and Part-Hawaiian to be combined.” Of course, this rather proves the problem with the Cold Case Posse report. The 1961 federal report shows separate tabulations (in a footnote) for Eskimo and Aleut, which is impossible with Zullo’s video code set which doesn’t distinguish between them. To this specific objection, a computer can combine two codes into one; it just can’t turn one into two. This objection is nonsense.
  4. The heading on Dr. Conspiracy’s alleged document refers to a “Vital Statistics Programming Branch” … after a google search for this exact phrase, the only results go to Dr. Conspiracy’s site. As for the other organization, the “Division of Data Processing” … this wasn’t formed until 1963 according to a booklet on the history of the National Center for Health Statistics:

    “Effective in September 1963, NCHS was reorganized, with the Division of Vital Statistics becoming one of five operating divisions. This reorganization separated support activities, such as data processing and publication activities, from the substantive vital statistics program operations.”

    Odd that the 1961 VSUS (link above) says: “In conjunction with national estimates prepared by the Nation Office of Vital Statistics (the National Statistics Division since 1961)…” page 5-4. As for why the Google doesn’t list the “Vital Statistics Programming Branch” I cannot say, except to mention that the 1961 manuals aren’t on the Internet to be found by a search engine.

I have this web site to attest to my integrity and honesty, and without those, I am wasting my time. While I can document many things and do, there are some things that you just have to take on trust or not as you see fit. You only have my word for the FOIA document (that and any internal proof you find in it). To be doubted by a birther places me in good company.

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