Return to Transcripts main page

Anderson Cooper 360 Degrees

Republicans Block U.N. Disabilities Treaty; Interview With Utah Senator Mike Lee; Supreme Court Takes Up Same-Sex Marriage

Aired December 07, 2012 - 22:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ANDERSON COOPER, CNN ANCHOR: Good evening, everyone. It's 10:00 here on the East Coast.

We begin, as we do every night, "Keeping Them Honest" not taking sides or pulling for Democrats or Republicans. You can find that on plenty of other cable news channels. Our goal is just reporting, finding the truth, looking for facts.

Now, for two nights, we have been looking for any facts, a single shred of evidence that might support the inflammatory claims heard on the floor of the U.S. Senate that were used to block a U.N. treaty, a treaty, by the way, that is meant to improve the lives of hundreds of millions of disabled people around the world, hundreds of millions.

Now, the treaty is called the United Nations Conventions on the Rights of Persons With Disabilities and it was modeled on the Americans With Disabilities act. The treaty was meant to encourage other countries to be, frankly, more like the U.S. on the issue of equal rights for the disabled. Also, disabled Americans who visit or live in other countries could potentially benefit from the U.N. treaty; 125 countries ratified it.

But, on Tuesday, 38 U.S. Republican senators voted against it. Their names are right there. Now, some of them flip-flopped at the last minute. Some senators had actually signaled support for the treaty, indicated they would vote for it and then voted against it.

In fact, one of the measure's co-sponsors, a Senator Jerry Moran, he actually voted against it. So, the guy who co-sponsored the legislation voted against it.

We asked Senator Moran to come on the program yesterday, today as well. He declined.

A former senator got involved on this as well, Rick Santorum, whose 4-year-old daughter, Bella, is disabled. He was one of the treaty's strongest opponents. Here's what he said last month.

(BEGIN VIDEO CLIP)

RICK SANTORUM (R), FORMER U.S. SENATOR: This is a direct assault on us and our family to hand over to the state the ability to make medical determinations and see what is in the best interests of the child and not look at the wonderful gift that every child is.

(END VIDEO CLIP)

COOPER: Now, as you might imagine, those claims alarmed a lot of parents with disabled children, but "Keeping Them Honest," Mr. Santorum's claims are just not based in fact. He's claiming that the treaty would give U.N. bureaucrats power over U.S. law affecting disabled kids, but the treaty would not change U.S. law.

In fact, there's no precedent that we can find that any U.N. treaty has ever changed U.S. law. We will dig deeper on that in a moment.

After the vote, CNN asked Senator John Kerry, a strong supporter of the treaty, about Santorum's claims. Here's what he said.

(BEGIN VIDEO CLIP)

SEN. JOHN KERRY (D), MASSACHUSETTS: Well, I have great respect for both Rick and his wife, Karen, and their daughter and their family. He's a strong family man. But he either simply hasn't read the treaty or doesn't understand it or he was just not factual in what he said, because the United Nations has absolutely zero, zero, I mean, zero ability to order or to tell or to even -- I mean, they can suggest, but they have no legal capacity to tell the United States to do anything under this treaty. Nothing.

(END VIDEO CLIP)

COOPER: It's not just Democrats saying that. In a moment, you will hear from a Republican who says the exact same thing, former U.S. Attorney General Dick Thornburgh.

But the big question we have been trying to figure out is why. Why the flip-flopping and the no-voting based on, as far as we can tell, a boatload of misinformation? It turns out it could be because some powerful conservative groups lobbied hard against it and like Santorum, they claimed the treaty threatened U.S. sovereignty, claimed being the operative word. The Heritage Foundation also claimed the U.N. treaty would leave the door open for abortion advocates.

The Homeschool Legal Defense Association rallied parents claiming the treaty was a threat to homeschooling in the United States. Again, just claims, no actual facts.

Here's Democratic Senator Chris Coons of Delaware on that last homeschool threat.

(BEGIN VIDEO CLIP)

SEN. CHRIS COONS (D), DELAWARE: They have succeed in scaring the parents who homeschool their children all over this country. My own office has gotten dozens of calls and letters demanding that I vote against this convention. As a matter of international law and as a matter of U.S. law, this convention does nothing, does nothing to change the homeschooling of children in America.

(END VIDEO CLIP) COOPER: He gave that speech on the Senate floor just before the vote.

Senator Mike Lee of Utah was one of the 38 Republicans who voted against the U.N. treaty. He agreed to talk to us tonight. He's a constitutional lawyer, was a law clerk for Supreme Court Justice Alito. We spoke a short time ago.

(BEGIN VIDEOTAPE)

COOPER: Senator, you have said this treaty will somehow change U.S. law or could change U.S. law. Former Republican Attorney General Dick Thornburgh, who helped negotiate this treaty on behalf of President George Bush, said emphatically it would have no effect on U.S. law, not now, not ever. Is he wrong?

SEN. MIKE LEE (R), UTAH: Well, I respectfully disagree with the former attorney general's conclusions.

I look at the treaty and I see one provision that arguably sets in place international entitlement rights, another provision that can be read to undermine the rights of parents to make decisions on how best to educate and otherwise care for their children with disabilities, and another provision of the treaty that can be read to obligate the United States government to pay for abortion services.

COOPER: You're just interpreting things. It doesn't -- it never uses the word abortion. It basically says that disabled people should have the same access to health care that other people have, that non- disabled people have overseas. Again, we're talking about overseas.

LEE: It does refer to reproductive rights, and reproductive rights in this context has been interpreted to include abortion, and this is...

COOPER: Interpreted by you.

(CROSSTALK)

LEE: Yes, and a number of other people who looked at it as well. The point is that if this does mean something, and if it could mean something, it could impact U.S. law.

COOPER: But this treaty states it's not self-executing. And the U.S. Supreme Court has said that a non-self-executing treaty doesn't create obligations that could be enforced in U.S. federal courts.

LEE: The fact that it may be non-self-executing, Anderson, doesn't mean that it doesn't have any impact at all. It just means that you might not be able to bring a lawsuit arising under that treaty.

(CROSSTALK)

COOPER: But it doesn't become the law of the U.S.

LEE: Actually, it does.

Article 6 of the U.S. Constitution says any treaty ratified by a two-thirds supermajority of the Senate does become the supreme law of the land. This could come up in litigation. And although you couldn't have a cause of action arising directly under this treaty, it could come up and it could have an impact on the court's interpretation of U.S. law.

COOPER: Can you name...

LEE: And it could become part of U.S. law.

COOPER: Can you name any other U.N. treaty that has forced changes in U.S. law?

LEE: I didn't come prepared to cite Supreme Court precedent on this point, but it's a...

(CROSSTALK)

COOPER: But what you're saying is totally hypothetical. You're using a bunch of hypotheticals saying they're going to -- this is going to force abortion rights for people -- for example, people overseas, this is -- some groups are saying children with glasses are going to be taken from their parents. You're using all these very scary hypotheticals.

You can't even cite one case where a U.N. treaty has ever impacted U.S. law?

LEE: Not aware of one person who is saying children with glasses are going to be taken away from their parents.

The Article 7 concern from the treaty relates to the fact that the best interests of the child standard will be injected into decisions, regarding how best to educate and otherwise care for a disabled child.

(CROSSTALK)

COOPER: Again, you can't name one U.N. treaty that has ever had an impact on U.S. law?

LEE: Well, I can't name one U.S. treaty that has been the deciding factor in a decision. It may well happen. I didn't come prepared to cite Supreme Court precedent to you today.

(CROSSTALK)

COOPER: I know, but you have been on the floor of the Senate arguing vigorously against this, and you have had weeks and weeks to prepare on this. It just seems to be basing your decision on complete hypotheticals when there has never been a case that you can cite of a U.N. treaty -- again, this is a U.N. treaty -- affecting U.S. law.

LEE: OK. Look, the fact that it may not have happened in exactly the way that you describe it doesn't mean that it couldn't happen.

COOPER: U.S. law already has the Americans With Disabilities Act. But that law is not recognized in multiple countries overseas, and this is a treaty which is trying to basically just raise standards in other countries overseas. It's basically just trying to encourage, you know, the better treatment of disabled people around the world.

LEE: Look, U.S. law, including the Americans With Disabilities Act, already provides the worldwide gold standard on the protection of the rights of persons with disabilities.

There are lots of ways that we can promote and encourage other countries to do this without agreeing to an international convention that will be administered and overseen by a U.N. body sitting in Geneva, Switzerland.

(CROSSTALK)

COOPER: So, by that argument, you really don't support any kind of U.N. treaties, because you're saying the whole idea of kind of U.N. treaties that countries sign on to, you don't like that idea at all?

LEE: Typically, Anderson, we use treaties to deal with international relations, to deal with the law of nations acting on the world scene. This deals with a lot of issues that are distinctively domestic in nature.

COOPER: There are those who say that your objection to this and the objection of many groups has more to do with basically a dislike of the U.N. and any kind of thing that comes out of the U.N. And you sort of painted this picture that U.N. bureaucrats in Geneva are going to be telling parents in Utah how to raise their disabled child.

But is there any case that you can cite where U.N. bureaucrats in Geneva have been able to tell American parents how to do anything or American citizens how to do anything?

LEE: No, there's not, Anderson, but the fact that something like that hasn't happened, the fact that they haven't succeeded in telling people how to live their lives from their perch in a U.N. office doesn't mean that we shouldn't be concerned about it here.

COOPER: I'm just trying to look for facts, and I just don't see the facts of the concerns that have been raised.

I understand the hypothetical concern, but just based on the history of the U.N., it's been around for a long time, I would think if this was the internationalization of laws and U.S. having to sort of kowtow to U.N. law, I think that would have already happened in some case. And I just don't see it.

LEE: Well, you can't assume that because something hasn't happened already, that it couldn't happen in the future. And it doesn't render it a hypothetical concern simply because it hasn't arisen to this level up to this point.

We do need to be concerned about the direction in which our law moves, and that's what's motivating my concerns here.

COOPER: Senator Lee, I appreciate your time and your perspective. Thank you very much.

LEE: Thanks, Anderson.

(END VIDEOTAPE)

COOPER: By the way, Senator Lee said he didn't hear anybody raising concern about children with eyeglasses being taken away by -- their parents under this U.N. treaty. Actually, somebody did make that claim. His name is Michael Farris. He's with the Homeschool Legal Defense Association, one of the groups that lobbied hard against this treaty.

Here's what he said in a radio interview to the American Family Association.

(BEGIN AUDIO CLIP)

MICHAEL FARRIS, HOMESCHOOL LEGAL DEFENSE ASSOCIATION: The definition of disability is not defined in the treaty, and so my kid wears glasses. Now they're just saying now the U.N. gets control over them.

(END AUDIO CLIP)

COOPER: The idea that the treaty would give the U.N. vast control over American children's lives and take away kids with glasses from their parents is just factually incorrect. It's just not true.

In July, testifying before the Foreign Relations Committee, former U.S. Attorney General Dick Thornburgh pointed out that kind of stuff is just not true, it wouldn't have an impact on U.S. law. Mr. Thornburgh is a Republican. He's also the father of a disabled son.

He joins me now.

Mr. Attorney General, I appreciate you being with us. The crux of the senator's argument really seems to be just because U.S. law hasn't ever been affected by a U.N. treaty doesn't mean it couldn't happen some day. He says under Article 6 of the Constitution, any U.N. treaty automatically becomes law of the land in the United States. Is that true?

RICHARD THORNBURGH, FORMER ATTORNEY GENERAL: Well, the consideration of this treaty was very carefully framed by attaching a number of restrictions, understandings and declarations that make it clear that, number one, there is no need for change in U.S. law.

There is not a single dime that has to be appropriated pursuant to this treaty, that the sovereignty of the United States is protected, that individual parents' rights are protected. It has one very real, clear and important purpose to this, and that is to send a message to the world that enables them to follow in the footsteps of what the United States has done in its landmark Americans With Disabilities Act. That's purely and simply what the purpose of the act is.

It has no effect whatsoever within this country, and it gives no jurisdiction to the U.N. over any individual or any government within the United States. I'm puzzled as to where these strong objections come from.

COOPER: Because what they're saying is that U.N. bureaucrats in Geneva or some office somewhere are going to be able to like take homeschooled kids and force them to go to schools in America, or take kids with glasses away from their parents if they get labeled disabled. You're saying that's just fantasy.

THORNBURGH: Anderson, I served at the U.N. as an undersecretary general and I know that it's not without fault. There are a lot of things that the U.N. doesn't do as well as it might.

But there's never been any evidence of a grand conspiracy to take over parental rights or to take children away from their parents. These are pure fantasy.

COOPER: And Senator Lee could not come up with any example.

I mean, his whole...

THORNBURGH: Of course not.

COOPER: ... argument was based on the idea that the U.N. treaties automatically become law in the United States and therein change U.S. law.

He couldn't come up with one single example where that's ever happened. You have worked at the U.N. Are you aware of any examples where that's happened?

THORNBURGH: No, quite the contrary. I think the important thing is that when we adopt a treaty and we attach to it certain reservations, understandings and declarations that are in our interest and preserve our system and our rights, that's what becomes the law of the land. That's what's been done here very carefully to preserve our rights.

Really, the notion of the United States relinquishing its longtime leadership role in a very important human rights area like the rights of people with disabilities is to me unthinkable. But I'm sure this will be back again for consideration either by this Senate or by the new Senate that takes office next month. But I don't think these kinds of arguments that have been raised should carry the day.

COOPER: And you're saying that's what this is really about, U.S. leadership to the world in terms of encouraging equal treatment of people who are disabled, because the other thing Senator Lee says, and others who agree with him say, is, well, if this doesn't have any impact on U.S. law, why are we even talking about it, why even sign on to this U.N. treaty?

And to that, you say what? THORNBURGH: It's a very good reason. The United States has always aspired to world leadership in important areas like human rights. And for us to relinquish or forfeit that leadership because of these spurious reasons that have been raised in opposition to the U.N. convention simply doesn't make any sense.

We should be proud of what we have done in the United States. We should seek to see that the 650 million people around the world who don't benefit from statutes like the Americans With Disabilities Act are given that opportunity, given the opportunity to join the mainstream of society in their respective countries. But that's not going to happen if the world leader turns its back on the rest of the world and says we don't support this.

COOPER: The number you threw out there I think is an important one just to repeat; 650 million disabled people around the world could potentially benefit if the countries who sign onto this U.N. treaty followed through on it.

THORNBURGH: Absolutely.

COOPER: I mean, 650 million people, that is a world-changing number.

THORNBURGH: And 80 percent of those come from lesser developed countries where we should be focusing our attention when it comes to human rights.

COOPER: Attorney General Dick Thornburgh, I appreciate you coming on to talk. Thanks very much.

THORNBURGH: Not at all. Thank you.

COOPER: Let us know what you think about this. Follow me on Twitter. I'm already tweeting about it @AndersonCooper. Do you think this was the right decision?

The Supreme Court takes on the issue of same-sex marriage. A ruling could be just six months away on two cases that challenge the right of same-sex couples to marry. I will get into what's at stake on that with or senior legal analyst Jeffrey Toobin next.

(COMMERCIAL BREAK)

COOPER: Big news today. The Supreme Court is taking on the issue of same-sex marriage. The high court today decided to hear two appeals, one involving DOMA, the federal Defense of Marriage Act, which denies federal benefits to legally married same-sex couples, and the other, a challenge to California's Proposition 8 which took away the right for gays and lesbians to legally wed in the state of California.

Now, the court's expected to hear arguments in March with a ruling by late June, and the decision to take on the issue comes just weeks after voters in three more states approved same-sex marriage.

No one knows more about the Supreme Court than our CNN legal analyst, Jeffrey Toobin. He joins me now.

How big a deal is this? Put this in perspective.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Huge.

This is really a major event in American history, not just court history, because same-sex marriage now is at the center of the American legal world. This was a cause that was seen as a fringe issue as recently as the '90s.

COOPER: It wasn't even mentioned as a possibility.

TOOBIN: It was not even mentioned. Polling has gone from approximately 20 percent to 30 percent support in the '90s. Now Gallup polls showed 53 percent. Exit polls showed 49 percent. It now appears to command close to a majority support and now the Supreme Court may decide that same-sex marriage will be the law of the land everywhere.

(CROSSTALK)

COOPER: How much of this do you think has been affected by the fact that for the first time in this last election you have people going to the polls and actually voting to allow same-sex marriage, as opposed to it coming from judges or from legislators?

TOOBIN: I don't think justices sort of said the polls did X., so I will do Y.

But in 1986, Lewis Powell, the swing justice of his day, they had the first real gay rights case. And he said to his law clerk, you know, as they were sort of weighing the case, you know, I have never met a gay person. I have never met a homosexual. What is that like?

COOPER: Wow.

TOOBIN: He didn't know that law clerk himself was homosexual. But he also -- that was what the world was like in 1986, that a worldly, intelligent man could have thought that he had never met someone who was gay.

Now even the conservatives on the court couldn't possibly express a sentiment like that, and that's just reflected in how the court acts.

COOPER: What do you think they're likely -- is there any way to read the tea leaves on this?

TOOBIN: You know, based on my experience in the health care case, I'm not going to do a lot of predictions, because wrong is wrong.

But Anthony Kennedy has been the key figure on gay rights. He has been basically a conservative justice, but in gay rights, he is the author of the two most significant pro-gay rights decisions. He's also someone who believes in states rights. And if you combine states rights and gay rights, that suggests supporting overturning the Defense of Marriage Act, because that is really a case that says, look, states should be able to define marriage and the federal government should honor that.

That's a fairly easy case for Anthony Kennedy. The Proposition 8 case I think is much more of a wild card and I don't really know what to predict in that case.

COOPER: It is interesting on the so-called Defense of Marriage Act because it does -- it puts this federal ban. And conservatives who are supposed to believe in states rights normally would not be arguing for a federal law defining something.

TOOBIN: Especially in something like marriage, because marriage is something that's always been regulated by states. The states do alimony, the states do child custody. All those things go to the states and the idea that the federal government would step into that was legally controversial even in '96, when it was passed, and now it's even more controversial.

COOPER: But the two cases do cover different ground.

TOOBIN: Well, Proposition 8 is a potentially much bigger case, because that -- the two extreme positions the court could do. They could simply say, look, the state of California can define marriage any way it wants, man and a woman, and it has nothing to do -- and gay people simply have to wait for California voters to change their mind.

They could also say that under the equal protection clause of the 14th Amendment, all states have to allow gay people to get married. They could conceivably say every state has to allow same-sex marriage. That would be the extreme position. I think that that would be...

COOPER: That seems unlikely.

TOOBIN: It seems unlikely to me, but certainly Ted Olson, who is the lead lawyer in this part of the case, he is going to urge that.

Now, they could also do a variety of compromise positions. They could say California has to allow same-sex marriage, but we're not deciding about the other states. They could also get rid of the case on procedural grounds in various ways. There are lots of different possibilities in the Proposition 8 case.

(CROSSTALK)

COOPER: At this point, you think that -- the year I was born, 1967, in New York, gay people were not allowed to congregate together. They were not allowed to be in the same bar dancing together. I mean, how far things have come so quickly.

TOOBIN: And 1967 was also the decision in Loving v. Virginia. That was the famous case that said interracial marriage could not be banned by states.

Today, that looks like, can you imagine like a state that would ban interracial marriage? But 19 states still had that law in 1967. This -- gay rights supporters have said this is the Loving vs. Virginia of gay rights. We will see. I don't know what the outcome will be, but the fact that they took both these cases suggests they're really ready to engage with the issue.

It sure looks like the four Democratic members of the court will vote to allow to allow -- to overturn DOMA, to allow California to have same-sex marriages. I think Anthony Kennedy, as is often the case, will be the swing vote here.

COOPER: Fascinating.

Jeff Toobin, thanks very much.

TOOBIN: OK.

COOPER: A tragedy after a prank call makes worldwide headlines. This is just such an awful story. A pair of Australian shock jocks, deejays, whatever you want to call them, got through to the ward treating Catherine, the duchess of Cambridge, for morning sickness. You know that.

Now the nurse that answered the phone has apparently taken her own life. There is fallout obviously for the deejays. The royal family is weighing in on what happened. We have a live report from London ahead.

(COMMERCIAL BREAK)

COOPER: Tonight, 360 following a story that started as a joke, a hoax. Took a sad and tragic turn today. The nurse who answered a prank call and transferred it to the ward treating Catherine, the Duchess of Cambridge, apparently has taken her own life.

The call came from a pair of Australian deejays who used phony accents, pretending to be Queen Elizabeth and Prince Charles. They are now off the air indefinitely, following word of the nurse's death.

A statement issued on behalf of William and Kate expressed sadness over the tragedy and also their gratitude for the wonderful care they received from the hospital.

CNN royal correspondent Max Foster is live in London with the latest. This is such a shocking story. What's the latest we know now about this nurse and about what happened to her?

MAX FOSTER, CNN ROYAL CORRESPONDENT: We know that she was married. She had a husband and two young children. They weren't in London at the time of the death. Thankfully, they didn't see any of this. They were out of town. But that's the context.

And the hospital, everyone that seemed to know her said she was a brilliant nurse. Her boss said she was a first-class nurse. She was obviously very, very good at her job but felt under some sort of pressure from all of this. Now the palace, St. James' Palace, has said they never at any point complained to the hospital about this prank call going through and this personal information being released to these -- these Australian radio presenters. So they didn't put any pressure on, and actually the hospital, Anderson, said there were no disciplinary proceedings taking place either. So this was a personal weight on her shoulders, it seems.

COOPER: And it's so horrible. She wasn't being disciplined. The royal family hadn't complained. Colleagues had been supporting her. I mean, is there any idea, do we know -- I don't want to get too personal and pry into her life, but was there more going on with her or was it simply the pressure of this? Or do we not know?

FOSTER: We obviously have to find out more about her. Very little information coming out. But certainly, if she was so professional and she felt so proud of her job and this happened -- and the headlines have been extraordinary. I mean, you know, front-page news daily this story. Her name wasn't out. But everyone knew that there was this big mess-up when the call got diverted up to the ward. And she was responsible.

COOPER: What's the latest on the two deejays who pranked the hospital? I understand they're now off the air?

FOSTER: Yes. They've taken themselves off air. That's what the radio station says. They've also closed down their Twitter accounts. If you look on social media, if you look at their Facebook page, the radio station's Facebook page, immense amounts of criticism. I mean, the comments are really, really negative.

This has become a very emotional story in the U.K. and around the world, it seems. And "blood on your hands" is the phrase that keeps coming up. They obviously didn't intend this. These weren't journalists. They were comedians, if anything, and they gave it a go, and it went through. But there's a lot of criticism here that this should be tried.

You have reported, I know, on the privacy laws in this country and the tabloid journalism and the pressure around that. And so this was seen as completely inappropriate. And it's come out with a worse possible ending, as well.

COOPER: It's just an awful, awful event. Max Foster, appreciate you being with us. Thanks.

A 21-month-old girl was caught up in an adoption battle. That's ahead. First, Kyung Lah joins us with a "360 Bulletin" -- Kyung.

KYUNG LAH, CNN CORRESPONDENT: Well, Anderson, the Republican chairman on the House Intelligence Committee says the U.S. has a moral obligation to act immediately if there's concrete proof Syrian troops have loaded chemical weapons that are ready to be launched.

This video posted online, which CNN cannot independently verify, purports to show Syrian missiles that have been modified to carry chemical and biological weapons.

A hundred and forty-six thousand jobs were added last month. And the unemployment rate fell to 7.7 percent. That is the lowest level in four years. But it is mainly due to workers dropping out of the labor force.

And today marks the 71st anniversary of the Japanese attack on Pearl Harbor. A survivor was honored at today's ceremony in Hawaii. Ninety-one-year-old Ray Emery's research has helped identify the remains of nine victims who were buried as unknowns. A former soldier, Anderson, who won't give up on his friends even all these years later.

COOPER: That's great. Kyung, thanks very much.

There's a battle for a little girl in Utah we want you to know about. She was put up for adoption without her biological father knowing it. That's the little girl. Now her father is fighting to get his daughter back. I'll speak to him, and we'll hear how all of this happened when we continue.

(COMMERCIAL BREAK)

COOPER: Welcome back.

A custody battle over a little girl in Utah has pitted her adoptive parents against the biological dad who didn't know that his wife was putting her up for adoption. Now the father is desperate to get his daughter back, but the adoptive couple, who are the only parents she's ever known, are doing everything they can to fight that. I'll speak with the father in just a moment. He says he's only seen his daughter twice since he found out where she was.

But first, Randi Kaye has the story of how all this happened.

(BEGIN VIDEOTAPE)

RANDI KAYE, CNN CORRESPONDENT (voice-over): At 21 months, this girl is caught in a fierce battle between the only parents she's ever known and her biological father, who says until last year, he never even knew she existed.

It all started in February 2009 when Staff Sergeant Terry Achane married Tyra Bland. In June 2010 they discovered they were expecting a baby girl, whom they planned to name Talia.

About six months later, though, Achane was called for duty. So he left Texas for South Carolina. By then, the couple's marriage was on the rocks. His wife even suggested adoption, but Achane wanted to be a father. Still, just ten days after he left town, his wife went against his wishes.

TERRY ACHANE, BIOLOGICAL FATHER (via phone): She just made the decision not to let me be a father and went behind my back, deceived me, and gave my child up for adoption. KAYE: Tyra Bland called the adoption center of choice in Utah. Around that same time, a Utah couple, Jared and Kristi Frei, called the same agency looking to adopt.

When Bland gave birth to Talia, the agency arranged for the Freis to adopt her. The trouble is, no one ever told the girl's father. Court papers show the birth mother knowingly gave the adoption agency the wrong contact information for Mr. Achane. Two addresses in Texas, even though she knew he was in South Carolina.

Tyra Bland told "Good Morning America" her husband wasn't there for her and that's why she turned to the Freis and adoption.

TYRA BLAND, GAVE DAUGHTER UP FOR ADOPTION: They cared, you know, about me and, you know, the well-being of Lia when he wasn't there. When he wasn't around. When he didn't care. He just showed no interest in me being pregnant. When he left me, he didn't leave me with an address.

KAYE: But Achane's lawyer told me that's just not true, that his client provided for Bland by paying the bills and that he wanted to care for their baby.

MARK WISER, TERRY ACHANE'S ATTORNEY: They took a child away from a married father.

KAYE: Achane has since divorced his wife. But around the time Talia was supposed to be born, Achane contacted his wife's sister and brother-in-law in an effort to track down his wife and baby. Court records show Achane's brother-in-law told him he had seen his wife but that she no longer looked pregnant and their baby was, quote, "nowhere in sight."

(on camera) According to court documents, the adoption agency had informed the adoptive parents, Jared and Kristi Frei, that the girl's biological father was not aware his daughter had been put up for adoption, warning the couple there was a risk he may contest it. It was made clear to the Freis the placement could be upended, and the baby could be returned to her father. Records show the Freis acknowledged the risk but decided to proceed anyway.

(voice-over) It wasn't until six months after Talia's birth that Achane's wife told him what she'd done. He immediately called the adoption agency to find out how to get his daughter back. Instead of directing him to his daughter, court records show the agency refused to help, even asked Mr. Achane if he would be willing to sign away his paternal rights.

Meanwhile, the Freis, now aware the little girl's father wanted her back, filed another adoption petition. And when Achane's lawyer sent a letter to the Freis, asking his client be allowed to spend time with his daughter, that letter was ignored.

ACHANE: I've just been with her six hours total out of her own life. That's hard to deal with. KAYE: In response to the Freis' petition for adoption, a Utah judge has now ordered the couple return the toddler to her biological father within 60 days. The judge found that Mr. Achane's opportunity to develop a relationship with his daughter was deliberately thwarted.

The court ruled that because the Freis knew Mr. Achane had been married to Talia's mother and was her legal father, he was entitled to immediate custody of his daughter. Not what Talia's birth mother was hoping to hear.

BLAND: My heart was comfortable with Lia being with the Freis. I'd rather see her with me struggling first before she goes with him.

KAYE: The clock is ticking for the Freis to hand Talia over. The deadline is January 16.

But the Freis aren't giving up. They've requested a stay of the judge's order and are planning to appeal. Calls to the Freis were not returned, but their lawyer sent me an e-mail, explaining, "The Freis do not believe that anything can be gained by trying their case in the court of public appeal. They believe the district court made some fundamental errors in its decision, and they will raise those with the appropriate appellate court."

"But once a natural parent comes forward," the judge's ruling reads, "the adoptive parents become merely legal strangers."

Randi Kaye, CNN, Atlanta.

(END VIDEOTAPE)

COOPER: Joining me now is Staff Sergeant Terry Achane along with his attorney, Mark Wiser. Appreciate both of you being with us. First of all, Terry, how are you holding up? How are you dealing with this?

ACHANE: I mean, I've been going through this for now about 18, 19 months. So my main focus is just getting my daughter back right now.

COOPER: Have you even seen her?

ACHANE: Yes, I've seen her twice.

COOPER: What was that like?

ACHANE: I mean, I was very happy the first time I seen her. But the only hurtful part about it is when it's time to go, when I'm giving her back. And she's not coming with me. That's the only hard part of it.

COOPER: Why do you think your ex-wife did this?

ACHANE: She never gave me an answer, but I believe, if I would say, just to hurt me. Why? I don't know, because we don't talk or nothing like that. COOPER: And Mark, legally, what happens now? Where does this stand?

WISER: Well, the judge made a ruling on November the 20th. And he's ordered that a transition take place within 60 days.

The Freis, through their attorney, have notified us that they plan to do an appeal and they've asked the judge to stay that decision and not do anything. Unfortunately, if this is appealed, it could be another year, year and a half before he would actually get his child back.

COOPER: And would you be allowed visitations during that time or how would that...

WISER: No, he would not if the judge were to stay the decision. But we're hopeful that the judge will make the right decision again and that he'll be able to get his daughter. If they want to appeal, then they can.

COOPER: Because I mean, I've read the court documents. This family can't be surprised by this, because they were informed by the adoption agency that you had not been informed about the adoption, correct?

ACHANE: Right, correct.

COOPER: So, I mean, the judge has said that both you and the adoptive parents are innocent victims in this. Do you think they are innocent victims in this?

ACHANE: I mean, they're also victims, but at the same time, they did know. They did know. And once I asked for my daughter back, that should have just happened right then and there instead of prolonging this, taking me all through this.

COOPER: Did you always want to be a dad? I mean, did you -- you had told your then wife that?

ACHANE: Yes, that's the reason I got married, to have a family.

COOPER: And she knew that all along?

ACHANE: She knew that. She knew that.

COOPER: Wow. I can't imagine what this is like.

ACHANE: I mean, like I said, I've been going through it for a while now. Now my main focus is just to get my daughter back.

COOPER: We wish you the best. We'll continue to follow. Thank you so much.

ACHANE: Thank you.

COOPER: We'll continue to follow that story. President Obama asking Congress for billions in relief after Superstorm Sandy. But is it enough to coverage all the damage? We'll tell you how much he's asking for ahead.

(COMMERCIAL BREAK)

COOPER: Welcome back. As part of an ongoing series, CNN has taken a close look at what it means to be black in America today. Soledad O'Brien went in search of some answers to some of the most pressing and provocative questions like what determines race: family or society? She met an activist who's trying to teach young kids a lesson that she hopes they never forget. Watch.

(BEGIN VIDEOTAPE)

KIARA LEE, COLORISM ACTIVIST: Can somebody tell me what that means?

My stance is, teach the children what it is. Show them the history. Make them aware of this issue so that when they go to school, when they go out in the world, they're armed with this information.

Because he wants to buy her because her skin is lighter.

UNIDENTIFIED MALE: That's just messed up.

TIM WISE, AUTHOR, "WHITE LIKE ME": Colorism was something that plantation owners used as an instrument to divide and conquer their own enslaved persons, by extending to a lighter-skinned enslaved persons more privileges. And it was a way to get those lighter- skinned black folks to be more likely to side with the owner if there was a slave rebellion planned.

LEE: You guys sit in the back.

SOLEDAD O'BRIEN, CNN CORRESPONDENT (voice-over): Even among 6- year-olds, Kiara is not afraid to shock. Today, the brown paper bag test. Kiara stops each child entering the classroom and compares their skin tone to a paper bag.

LEE: Let me see your arm. Can you put your arm out for me? OK. You got to sit in the back. OK?

O'BRIEN: Lighter than the bag, you can sit in the front. It's a real test from the early 1900s, used by social organizations like churches and fraternities and neighborhood groups to decide who was light-skinned enough to join.

(on camera) Was it too extreme to do to little kids?

LEE: The more shocking the activity is the better, because it's going to stick with them.

Why are you all feeling bad? UNIDENTIFIED FEMALE: She showed us that dark skin had to sit in the back and light skin had to sit in the front. I didn't think it was fair.

(END VIDEOTAPE)

COOPER: It's an eye-opening report, "Who is Black in America?" It airs on CNN this Sunday, 8 p.m. Eastern and Pacific.

Kyung Lah is back with another "360 Bulletin" -- Kyung.

LAH: Well, Anderson, new violent protests in Egypt aimed at President Morsi. They broke through barricades protecting the presidential palace while demonstrators outside Cairo threw bottles and rocks at Morsi's house. They want him to cancel an upcoming constitutional referendum. Today the government announced a willingness to delay the vote.

A powerful 7.3 magnitude quake struck off the coast of Japan today and triggered a small tsunami. There are no immediate reports of injuries or damage. But it hit the same region still recovering from the March 2011 quake.

President Obama is asking Congress for more than $50 million for Superstorm Sandy relief efforts. That amount falls short of the total damage estimates reported in the affected states.

And Arizona lottery officials say the second winner from last month's record Powerball drawing is now claiming the prize but does not want to be identified. They only say he is in his 30s, lives outside Phoenix and walks away with nearly $193 million before taxes -- Anderson.

COOPER: Kyung, thanks.

Coming up, how can you smell like pizza without going through all the trouble of actually eating it? "The RidicuList" is next.

(COMMERCIAL BREAK)

COOPER: Time for the "RidicuList." And tonight there is a brand-new product. It's a dream come true. Well, it's a dream come true if you're Canadian and dream about walking around and smelling like the inside of a Pizza Hut.

Yes, the good people of the think tank known as Pizza Hut Canada have come up with a limited edition run of Pizza Hut perfume. Mmm. The bad news is they only made 110 bottles and gave them away to some of their Facebook fans. So you can't just run out and buy it. Oh, Pizza Hut, Canada, you mercurial mistress, why must you tease us so?

They're not ruling out a larger run of Pizza Hut perfume in the future, by the way, but for now we'll just have to go old school, improvise a little. I find that a few heaping tablespoons of pepperoni grease behind the ears is -- it's a pretty decent work- around. I've got to say, Pizza Hut Canada has quite the brain trust going, because this is the same company that recently offered this limited-edition crust, because who hasn't gotten to the end of a slice of pizza and said, "I feel like something is missing and I'm pretty sure that something is a hot dog."

I can almost hear the scoffing. But come on. Pizza perfume, meat cologne. The fragrance industry is edgy, people. Have you seen the Brad Pitt commercials for Chanel No. 5?

(BEGIN VIDEO CLIP)

BRAD PITT, ACTOR: It's not a journey. Every journey ends, but we go on. The world turns, and we turn with it. Plans disappear. Dreams take over.

(END VIDEO CLIP)

COOPER: What? What? Brad Pitt should totally do the pizza perfume commercials: "It's not a pizza. It's a slice of a dream wrapped in a riddle around a hot dog. It's not delivery. It's DiGiorno." Although Chanel probably would not go for it. And frankly, I wouldn't want to confuse Conan O'Brien more than he already is.

(BEGIN VIDEO CLIP)

CONAN O'BRIEN, HOST, TBS'S "CONAN": I watched it again today. And I have to say, it's even stranger than I remembered it from the first time.

PITT: It's not a journey. Every journey ends, but we go on. The world turns, and we turn with it.

(END VIDEO CLIP)

COOPER: The point is, every perfume needs a celebrity spokesman. If Brad Pitt isn't available, I think Pizza Hut should do whatever it can to get Kristin Wiig.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: She knows exactly where to go. Exactly what to do, and all her friends are dudes.

UNIDENTIFIED FEMALE: Red flag.

UNIDENTIFIED MALE: She's exquisite. But she also lived in Vegas for 11 years.

UNIDENTIFIED FEMALE: Red flag.

UNIDENTIFIED MALE: She's funny, but not funny like ha-ha. Funny like, yikes.

UNIDENTIFIED FEMALE: Red flag. (END VIDEO CLIP)

COOPER: I've said it before, I will say it again. Kristen Wiig is a genius.

Now, look, I generally shy away from telling fast food restaurants how to run their perfume business, as a principle, as a rule. But Pizza Hut Canada, come on: get your act together. Get a celebrity, throw together some commercials, and let's get this in the stores as soon as possible, because I've got some Christmas shopping to do.

That's it for us. "ERIN BURNETT OUTFRONT" starts now.