Berg v. Obama Update — Thursday, October 2

U.S. State Department Subpoena Request Denial Letter Turns Up in Court, and Setting the Record Straight on Internet Rumor

One of the letters attached to Berg’s Opposition and supporting Brief turned up in the court today. I thought it was new — apparently, even I haven’t been reading close enough. Here’s the deal, anyway, for those who missed the boat like me:

In a letter from David Newman of the Office of Legal Adviser for the U.S. Department of State dated September 24, 2008, Berg’s attempted service of subpoena on the Vital Records Section of the State Department and a pair of U.S. embassies was rejected.

While I did not originally know, due in part to some problems with the court’s computer system, about this letter and the request denial, I’ve known for a few weeks now that Phil Berg intended to subpoena several entities with regard to documentation sought to support his allegations in his federal case against Barack Obama, the Democratic National Committee, and the Federal Election Commission. I kept quiet because Berg discussed this with me off the record, and I must honor that. Here’s what the letter said, for those who haven’t seen it elsewhere:

Dear Mr. Berg:

This is in response to your attempted service of subpoenae on the U.S. Dept. of State, Passport Services, Vital Records Section; the US Embassy Nairobi; and the U.S. Embassy Jakarta in connection with the above-referenced proceeding. Through the subpoenae, you are seeking passport application and citizenship-related information regarding Barrack [sic] Hussein Obama. For the reasons explained below, the Dept of State currently cannot respond to your request because it does not comply with applicable Dept. regulations, referenced below and attached.

The procedure by which a party seeking official information from a non-party federal agency is to request the information under the agency’s “Touhy” regulations. See United States ex rel. Touhy v. Ragen 340 U.S. 462 (1951) … Your requests do not comply with those requirements.

In addition to serving the Executive Office of the Office of the Legal Adviser, as required under 22 C.F.R. 172.2, the requests also must be set forth in writing, and with as much specificity as possible, the nature and relevance of the official information sought. 22 C.F.R. 172.5(a). This information is needed by the dept in order to make a determination as to whether it is appropriate to authorize the production of the requested information and documents. The only information you have included is a description of the records that you seek. There is no information as to how all the information requested is relevant to the proceedings. Because your request does not comply with the requirements in the Department’s regulations, we cannot comply and and no Department employee has been authorized to provide documents or any official information in connection with the proceeding.

Moreover, based on the description of the information that you seek, the records may be protected by the Privacy Act, 5 USC 552a. Under the Privacy Act, the Department may only be able to release such records with the written consent of the person to whom the record pertains. 5 USC 552a(b). Since you have not provided written consent on behalf of the individual to whom the records relate, we would be precluded by law from disclosing any Privacy Act protected information you requested.

For the foregoing reasons, please consider this letter as our written objection to the subpoena you have delivered and please be advised that no State Department records, to the extent any exist, can be produced to you pursuant to the above-reference subpoena.

David Newman
Office of the Legal Adviser
U.S. Department of State


It wasn’t until after treating this matter as new information that I was informed of the nature of the letter. My initial inspection of the Opposition and Brief was performed on an advance copy. Therefore, I had seen an equivalent from Hawaii’s Kapo’laoni Hospital denying Berg’s request for documentation on HIPAA grounds because it was on the court’s Web site, but had not seen this one. There have been some problems with how the exhibits have been entered into the court’s computer system, and this is no doubt a side effect.

Berg, via e-mail, confirmed that the letter is indeed Exhibit 7 — on the court’s system, Exhibit 7 comes up as a single page which simply says the words “Exhibit 5″ on it.

My mistake notwithstanding, I find it amazing that the State Department is asking for Berg to include written authorization from Obama for release of any records (though it admittedly is law under the Privacy Act), and find it equally amazing that they spelled Barack Obama’s name wrong.

ALSO:

I’ve received a number of e-mails and messages stating that the judge has decided on the matter, all linking to the PDF copy of an official court document.

The document in question is a PROPOSED ORDER. It is not a decision by the court, but rather a procedural mechanism included with motions to essentially “assume the sale,” to provide the judge with a place to theoretically sign off and decide in favor of the filing party.

As of 2:28 p.m. today, there has been no decision by Judge Surrick. If there is, you will be among the first to know, as I am plugged in enough at the courthouse to see such an order as soon as it comes down from the judge’s chambers.

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Comments

  1. Anonymous says:

    Jeff,
    If the judge denies the dismissal could Obama’s lawyers appeal the decision? That would only delay the case.

  2. Anonymous says:

    If Obama continues the legal manouvres, it will become mor widely known. This would be better for him than to admit he was born in Kenya though.

  3. Anonymous says:

    Thanks Jeff. Much appreciated.

  4. suek says:

    Can the court require the State Department to submit these?

  5. Anonymous says:

    Jeff;
    Similar to John Kerry’s 180 request.
    Kerry still hasn’t released it to the public.
    The swifties couldn’t get a copy because of the Navy’s regulations.

    However that did not stop them from finally finding out about Kerry.

    So hang in there.

    If Obama is able to delay and get elected, the worst fear is all the pardons he’ll start giving out.

    People need to be made aware of this madman.

  6. Fred says:

    Jeff,

    Do you know if the judge was aware of the Subpoena Request? Is it possible the original case was contingent on getting more documents?

  7. Me says:

    Part of Obama’s legal team is Joe Sandler of the Washington law firm Sandler, Reiff, and Young. Sandler is part of the Council of American-Islamic Relations (CAIR). CAIR is an organization with terrorist ties, and is an unindicted co-conspirator in the Holyland Foundation Hamas Funding trial.

    Why is a candidate for President of the United States, a person who would become Commander-in-Chief of the United States forces and also CIC in the war on terror if he wins the election, using an attorney for CAIR, a group with known terrorist connections, to represent him in this lawsuit? Once again Obama leaves us with questions and no answers. And, once again, he aligns himself with someone with questionable character. Is his judgment really that bad? Or does he believe and support the same things these people believe?

    Again, there is SO much we do not know about Obama, which is disturbing in itself. Even more disturbing is what we DO know about him. There are SO many red flags that people refuse to see or explore or think about or question him about. I am sure Obama supporters will just dismiss this, as they did with so many other bad associations, (Wright, Ayers, Dorhn, Rezko, Farrakhan) but I have to question what these people are thinking or whether they are even thinking at all?!

  8. Anonymous says:

    Bureaucratic Hand job

    Prior consent by Barack is incidental and not mandatory under an order of a court of "competent jurisdiction".

    Ultimately the codes they cited also empowers the executive in charge to release the documents with a pen stroke.

    The privacy statutes they cited also reasons to accept the subpoena, as well as decline.

    TITLE 5 > PART I > CHAPTER 5 > SUBCHAPTER II > § 552a
    § 552a. Records maintained on individuals
    b) Conditions of Disclosure.— No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be— in the course of the performance of the duties of the Government Accountability Office;

    (11) pursuant to the order of a court of competent jurisdiction.

    Was the subpoena written by the clerk. If it was they should have stated as much given the following ..

    Mr. Berg did not need nor was he required to delineate how the documents would be handled
    What the state department was neither legal or illegal however….but it effectively delay's the court addressing the matter.

    The departments rebuttal was "
    This information is needed by the dept in order to make a determination as to whether it is appropriate to authorize the production of the requested information and documents. The only information you have included is a description of the records that you seek. There is no information as to how all the information requested is relevant to the proceedings. Because your request does not comply with the requirements in the Department’s regulations, we cannot comply and no Department employee has been authorized to provide documents or any official information in connection with the proceeding.

    The rational in their response could also be taken as can you guy's throw me a friggin bone here. I Mean I can't just give this to you without some paper work that covers my ass.

    34. DEFINITION OF "ORDER OF A COURT OF COMPETENT JURISDICTION" yadda yadda
    A subpoena signed by a clerk of a Federal or State court, without specific approval of the court itself, does not comprise an "order of a court of competent jurisdiction" for purposes of nonconsensual disclosures under the Privacy Act, 5 U.S.C. § 552a(b)(11). The overall scheme of the Privacy Act's nonconsensual disclosure provisions in subsection (b) is to balance the need for disclosure against the potential harm to the subject of the disclosure. Even though a subpoena signed by a clerk of the court is issued in the name of the court and carries with it the threat of contempt to those who ignore it, there is no guarantee that it is based upon a careful consideration of the competing interests of the litigant and the individual who is the subject of the record. It is common practice for a subpoena to be issued in blank by a court clerk to a party requesting it, who then fills in the blanks as he or she chooses.
    To allow nonconsensual disclosure pursuant to a subpoena–grand jury or otherwise-–would permit disclosure of protected records at the whim of any litigant, whether prosecutor, criminal defendant, or civil litigant. Therefore, disclosure of records under subsection (b)(11) requires that the court specifically order disclosure. If there is a threat of punishment for contempt for ignoring a subpoena not approved by the court, the subpoena should be challenged by a motion to quash or modify.

    Item 11 doesn't say that the court needs to fully inform as to why it the documents, are pertinant to the case. It merely needs to produce a court directed subpoena. The department is compelled to assume that the court will securely maintain the information as it pertains to the specific issues of the case which gave rise to the courts order.

    The specific Issues of and of evidence in ongoing court cases cannot be discussed outside of the parties involved.

    An ancillary precedent

    The action below and amendment which the final rule proceeded without comment addresses inter alia the courts and other agencies legal access. The Government's court system of records would by extension therefore be exempt from

    . 16 CFR 1014.12 currently exempts other systems of records from
    certain requirements of the Privacy Act. This rule adds a new paragraph
    to Sec. 1014.12 to exempt the Inspector General's investigative files
    from certain requirements of the Privacy Act.
    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
    U.S.C. 605(b), the Commission certifies that the amendment to 16 CFR
    1014.12, Specific Exemptions, will not have a significant impact on a
    substantial number of small entities.

    [Federal Register: June 22, 1994]

    =======================================================================
    ———————————————————————–

    CONSUMER PRODUCT SAFETY COMMISSION

    16 CFR Part 1014

    Privacy Act of 1974; Specific Exemptions

    AGENCY: Consumer Product Safety Commission.

    ACTION: Final rule.

    ———————————————————————–

    SUMMARY: The Consumer Product Safety Commission (“Commission'') is
    issuing a rule to exempt a system of records from certain provisions of
    the Privacy Act of 1974, 5 U.S.C. 552a (“Privacy Act''), to the extent
    that the system contains investigatory material pertaining to the
    enforcement of criminal laws or compiled for law enforcement purposes.
    The system of records includes the investigative files of the Office of
    Inspector General of the Commission.

    EFFECTIVE DATE: July 22, 1994.

    FOR FURTHER INFORMATION CONTACT: Richard W. Allen, Counsel to the
    Inspector General, Office of the General Counsel, Consumer Product
    Safety Commission, Washington, DC 20207, telephone 301-504-0980.

    SUPPLEMENTARY INFORMATION:

    Background

    The Commission proposed this rule on August 2, 1990, at 55 FR
    31404. No comments have been received, and the rule is being issued
    without change except for a fuller description of the record system
    subject to the rule and the correction of typographical errors. The
    purpose and effect of the rule is set forth below.
    The Inspector General Act, 5 U.S.C. App., authorizes the Office of
    Inspector General of the Commission to conduct investigations to detect
    fraud and abuse in the programs and operations of the Commission and to
    assist in the prosecution of participants in such fraud or abuse. The
    Office of Inspector General of the Commission maintains information in
    a system of records, identified as “Office of the Inspector General
    Investigative Files–CPSC-6,'' pursuant to its law enforcement and
    criminal investigation functions. Disclosure of information in these
    investigatory files or disclosure of the identity of confidential
    sources could seriously undermine the effectiveness of the Inspector
    General's investigations. For example, premature disclosure of
    information of such investigations could enable suspects to take action
    to prevent detection of criminal activities, conceal or destroy
    evidence, or escape prosecution. Premature disclosure of this
    information could also lead to the possible intimidation of, or harm
    to, informants, witnesses, or investigative personnel and their
    families. Further, the imposition of certain Privacy Act restrictions
    on the manner in which information is collected, verified, or retained
    could significantly impede the effectiveness of the Inspector General's
    investigations and could preclude the apprehension and successful
    prosecution of persons engaged in fraud or criminal activity.
    Thus, the Commission is issuing a rule to exempt this system of
    records from certain provisions of the Privacy Act where application of
    the Privacy Act would interfere with the conduct of an investigation by
    the Inspector General. Section (k)(2) of the Privacy Act, 5 U.S.C.
    552a(k)(2), provides the authority for agencies to exempt records
    containing investigatory material compiled for law enforcement purpose
    from certain other provisions of the Act.
    The information in this system of records may also be used for the
    purpose of determining suitability, eligibility, or qualifications for
    federal civilian employment. Section (k)(5) of the Privacy Act, 5
    U.S.C. 552a(k)(5), provides that investigatory material compiled solely
    for those purposes may be exempted from certain other provisions of the
    Privacy Act, but only to the extent that the disclosure of such
    material would reveal the identity of a source who furnished
    information under an express promise that the identity of the source
    would be held in confidence. The rule being issued provides for such
    exemptions.
    16 CFR 1014.12 currently exempts other systems of records from
    certain requirements of the Privacy Act. This rule adds a new paragraph
    to Sec. 1014.12 to exempt the Inspector General's investigative files
    from certain requirements of the Privacy Act.
    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
    U.S.C. 605(b), the Commission certifies that the amendment to 16 CFR
    1014.12, Specific Exemptions, will not have a significant impact on a
    substantial number of small entities.

    List of Subjects in 16 CFR Part 1014

    Privacy.

    For the reason stated in the preamble, Chapter II, Title 16 of the
    Code of Federal Regulations is amended as follows:

    PART 1014–POLICIES AND PROCEDURES IMPLEMENTING THE PRIVACY ACT OF
    1974

    1. The authority citation for part 1014 continues to read as
    follows:

    Authority: Privacy Act of 1974 (5 U.S.C. 552a).

    Sec. 1014.12 [Amended]

    2. Section 1014.12, Specific exemptions, is amended by adding
    paragraph (b) to read as follows:
    * * * * *
    (b) Inspector General Investigative Files–CPSC-6. All portions of
    this system of records which fall within 5 U.S.C. 552a(k)(2)
    (investigatory materials compiled for law enforcement purposes) and 5
    U.S.C. 552a(k)(5) (investigatory materials solely compiled for
    suitability determinations) are exempt from 5 U.S.C. 552a(c)(3)
    (mandatory accounting of disclosures); 5 U.S.C. 552a(d) (access by
    individuals to records that pertain to them); 5 U.S.C. 552a(e)(1)
    (requirement to maintain only such information as is relevant and
    necessary to accomplish an authorized agency purpose); 5 U.S.C.
    552a(e)(4)(G) (mandatory procedures to notify individuals of the
    existence of records pertaining to them); 5 U.S.C. 552a(e)(4)(H)
    (mandatory procedures to notify individuals how they can obtain access
    to and contest records pertaining to them); 5 U.S.C. 552a(e)(4)(I)
    (mandatory disclosure of records source categories); and the
    Commission's regulations in 16 CFR part 1014 which implement these
    statutory provisions.

    Dated: June 17, 1994.
    Sadye E. Dunn,
    Secretary, Consumer Product Safety Commission.
    [FR Doc. 94-15177 Filed 6-21-94; 8:45 am]
    BILLING CODE 6355-01-P

  9. halva says:

    Is this a new development??

    http://newswithviews.com/Ryter/jon252.htm

    Judge Orders Obama to Produce Birth Certificate

  10. Goldie says:

    Someone posted a comment on another story here about Obama turning in his law license. If that’s so then he must have been in a situation where he was “asked” to do so. This is the usual reason. Give it up or pay the price. Is there a way to really find out? I’m not in law and have no idea how to investigate such things. Can we find out if this is true and what the reason was?

  11. Anonymous says:

    OT. . ..Obama, Sandler and a DNC conflict of interest?

    Quote: "Obama is using Joseph E. Sandler, a member of the firm of Sandler, Reiff & Young, P.C., in Washington, D.C., who concentrates in campaign finance and election law matters, to defend him in the Philip Berg civil law suit."

    snip

    Sandler is “. . .the “Legal Hit Man for the Council of American-Islamic Relations (CAIR)” (“an organization with terrorist ties” and “an un-indicted co-conspirator in the Holyland Foundation Hamas Funding trial”)”

    CAIR = Council on American Islamic Relations

    snip

    “What Yid with Lid did not mention in this article is that Sandler is general counsel for the Democratic National Committee.
    Why is the DNC’s general counsel, and his law firm, involved in Obama’s civil case? Doesn’t this at least raise some questions on the proper role of the DNC’s counsel in a civil law suit involving a presidential candidate? It’s not the DNC that is being sued, after all.

    IS the DNC being sued?

  12. Jeff Schreiber says:

    Halva,

    Read the update — it’s a PROPOSED ORDER that people are talking about.

    No decision yet, my friend.

    Take care,

    Jeff

  13. Koyaan says:

    It’s not the DNC that is being sued, after all.

    The DNC is indeed being sued by Berg. Along with the FEC.

    The defendants named in Berg’s suit are Obama, the DNC and the FEC in that order.

    k

  14. Maggie M. Thornton says:

    Why would the FEC not know with certainty, before any candidate files for the Presidency, that citizenship is not in question.

    The FEC is also involved in the suit. Why wouldn’t they just provided what the public should already know – or require that Obama provide the same?

    Maggie
    Maggie’s Notebook

  15. Me says:

    FYI, Link to a blog that is examining allegations in the Philip Berg lawsuit:

    http://www.whatsyourevidence.com

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