JURIST - Paper Chase: Sunday, February 24, 2013

[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] on Thursday filed an appeal [Petition for a Writ of Mandamus, PDF] in the Guantanamo Bay [JURIST backgrounder] military tribunal, the US Court of Military Commission Review [official website], to an order granting the government's request to censor testimony [JURIST report]. The ACLU is seeking access to testimony from 9/11 [JURIST backgrounder] defendants relating to torture and other abuses, held in the custody of the Central Intelligence Agency (CIA) [official website]. While the protective order does not prevent the defendants from testifying about their personal experiences of illegal government conduct, the ACLU argues it unconstitutionally prevents the public from hearing that testimony. The ACLU argues the censorship order violates the public's First Amendment [Cornell LII backgrounder] right of access to criminal proceedings. The government's request for censorship stated that the defendant's statements concerning the CIA's detention and interrogation program qualified as classified sources, methods and activities of the US that can be kept from public knowledge. The government's response to the ACLU's appeal is due [case materials] March 6, and the ACLU's request for oral argument is deferred until after the government responds.

The procedures and policies regarding the 9/11 military commission hearings have faced significant scrutiny. On Tuesday, the judge presiding over the 9/11 military tribunals at Guantanamo Bay granted defense lawyers access [JURIST report] for the first time to Camp 7, the secret facility where detainees are housed. Earlier this month, lawyers for the US Navy contended [JURIST report] that surveillance equipment deployed throughout the Guantanamo Bay detention center was not used to breach attorney-client privilege. Earlier this month a military judge ordered the removal [JURIST report] of any monitoring system that censors the public broadcast of the hearings. In September, a federal judge rejected [JURIST report] new restrictions on the ability of lawyers representing detainees who have had their habeas corpus challenges denied or dismissed to access their clients. In February 2012 the chief US military tribunal judge ruled [JURIST report] that the content of attorney-client mail inspected at the Guantanamo Bay prison is confidential and may not be released.

[JURIST] The Kansas Supreme Court [official website] on Friday ruled [opinion, PDF] that a non-biological mother of children conceived using assisted reproductive technologies has parentage rights under Kansas law. Kelly Goudschaal and Marci Frazier were in a committed, long-term, same-sex relationship and had two children via artificial insemination. The couple executed a co-parenting agreement and after they separated, Frazier filed suit to enforce the agreement. The district court found jurisdiction under the Kansas Parentage Act (KPA) [PDF] to consider Frazier's claim and awarded the couple joint legal custody. Goudschaal appealled, asserting that she was the only person with a constitutionally protected status of parent and that Frazier was an unrelated third party. The Supreme Court held that a woman can make a claim to being a presumptive mother of a child without claiming to be the biological or adoptive mother, and, therefore, jurisdiction was properly granted. Additionally, the court found the co-parenting agreement was appropriate:

Looking at the coparenting agreement ... the children were third party beneficiaries of that contract. They would have a reliance interest in maintaining the inherent benefits of having two parents, and severing an attachment relationship formed under that contract would not only risk emotional and psychological harm ... but also void the benefits to the children that prompted the agreement in the first instance. So what Goudschaal really wants is to renege on the coparenting agreement without regard to the rights of or harm to the children, all in the name of constitutionally protected parental rights. Surely, her constitutional rights do not stretch that far.

However, the court stated that it discerned an absence of sufficient evidence to determine what the best rights of the children were and remanded the case to determine that.

Same-sex child custody and support issues have been the subject of many state court decisions recently. On Wednesday, Puerto Rico's Supreme Court [official website, in Spanish] upheld [JURIST report] a law banning same-sex couples from adopting children. In June, the American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit [JURIST report] challenging North Carolina's law against second-parent adoptions, which effectively bans individuals in same-sex couples from adopting their partner's child. Earlier that month the New Mexico Supreme Court ruled [JURIST report] that the same-sex partner of a parent who has adopted a child has a right to seek custody of that child after the partnership has dissolved. In February the Massachusetts Appeals Court ruled that same-sex couples who marry and have a child through artificial insemination [JURIST report] are subject to the same child custody laws as heterosexual couples. In May 2009 a New York state appeals court ruled that child support claims cannot be brought against same-sex partners [JURIST report] who have no biological or legal ties to a child. In 2005, the California Supreme Court ruled that estranged same-sex couples who created a child using reproductive science were to be treated the same as heterosexual parents [JURIST report] under child custody and support laws.

[JURIST] Human Rights Watch (HRW) [advocacy website] on Saturday urged both the United Arab Emirates (UAE) and Iran [press releases] to allow detainees access to lawyers and provide them with basic rights. It urged UAE to not only grant immediate access to lawyers, but also to either charge or release 13 Egyptian detainees who are accused of having ties to the Egyptian Muslim Brotherhood [JURIST news archives]. Some of the detainees, which include doctors, engineers and professors, have been held since November, and no charges have been filed against them yet. HRW also urged Iran [press release] to allow 20 detainees who are being held on charges related to the killing of Iranian nuclear scientists access to lawyers and family members. HRW also stated that Iran has not provided "basic information" about the charges to the detainees or their families, despite the possibility of severe penalties which could include death. In both cases, HRW expressed doubt as to whether the governments have credible evidence to sustain charges against the detainees, stating that if they did they would not be denying them basic rights and information about why they are being held.

Denying detainees accused of terrorism and other serious crimes basic human rights while they are detained is a controversial issue internationally. Earlier this month, HRW urged Afghanistan to make meaningful reforms to end torture [JURIST report] in government detention centers. This came weeks after the UN released a report detailing abuses [JURIST report] occurring in Afghanistan prisons. In November, the US Department of Justice announced that it would appeal [JURIST report] a court ruling [JURIST report] that rejected its argument that the government could set special rules regarding Guantanamo Bay [JURIST backgrounder] detainees' access to counsel. The US's treatment of prisoners at Guantanamo Bay has been the center of controversy since the US began holding prisoners there in 2002.

[JURIST] The Iowa Supreme Court [official website] on Friday ruled [opinion, PDF] that a woman whose will designated that she be buried in Montana must be buried in Iowa at the behest of her husband. It ruled that the state's Final Disposition Act [text] gives the spouse of a decedent "the right to control the final disposition...with no accompanying requirement that he follow her instructions." The court said the only exception to the spouse's right to control a decedent's disposition is if there is a "declaration designating somebody else." In this case, the decedent specified in her will that she wished to be buried in Montana, but her husband wanted her to be buried in Iowa. The decedent's sister, the executor of the estate, originally obtained an order from the probate court to bury her in Montana pursuant to her will, but the supreme court's decision will reverse that order.

In the past, much of the legal controversy surrounding wills and estates has dealt with inheritance laws, most recently in the context of same-sex couples' inheritance rights. Last week, three briefs were filed [JURIST report] in a case pending review by the US Supreme Court challenging the constitutionality of the federal Defense of Marriage Act [text]. The case stems from Edith Windsor, who was legally married to her wife under Canada and New York law, being denied a spousal deduction for federal estate taxes when her wife died. In August, a Minnesota court ruled [JURIST report] that the state's Defense of Marriage Act [text] did not prevent same-sex couples from inheriting from each other.