Six months ago, President Obama committed to make the rights of lesbian, gay, bisexual, and transgender (LGBT) people a priority in U.S. foreign policy. Since then, the U.S. State Department has made great strides in that direction, but there is still much more to be done—including for LGBTI refugees.

Help us make a difference. Tell Secretary of State Hillary Clinton to help make sure that LGBTI refugees gain access to safety and protection from violence in their countries of asylum.

LGBTI  refugees are the most vulnerable and isolated among refugees. They seek protection from violence and discrimination in a new country only to face the same persecution from which they fled.

In our recently published report, The Road to Safety, we found that LGBTI refugees in Uganda and Kenya have been abducted, beaten, and raped. Others have been forced to relocate their homes because their landlords, neighbors, or other refugees harass or evict them.

Stand with us on International Day against Homophobia and Transphobia.  Tell Secretary Clinton to protect LGBTI refugees.

Brilliant legal minds have been debating the arcane details of proposed amendments to the 2013 National Defense Authorization Act for the last 48 hours or so, but I’m afraid the general public may be far less aware of the chicanery going in Congress right now than many of us legal and policy wonks are.

In short, the National Defense Authorization Act, or NDAA — the yearly bill that authorizes national defense spending — is up for debate in Congress now (as in, tonight) and includes some important proposed changes to last year’s bill. Signed into law on New Year’s Eve, it allowed indefinite military detention without trial of individuals merely suspected of supporting terrorism — possibly including U.S. citizens and others arrested on U.S. soil.

That piece of the law rightly outraged many on both the left and the right last year, and legislators from all over the political map are now responding. But while one of those responses is real — i.e., it would actually fix the problem — one is not, and by pretending to fix it would only make things worse.

The bi-partisan amendment, sponsored by Reps. Adam Smith (D-WA) and Justin Amash (R-MI), would amend the most controversial detention provisions in last year’s law to ban indefinite detention in the United States and repeal mandatory military custody of terrorism suspects.

The amendment offered by Republican Rep. Louis Gohmert of Texas, meanwhile, pretends to restore the right of habeas corpus to those detained in the United States — a lame substitute for the right to a real criminal trial — but, in fact, limits that current right. (For non-lawyers, the right to habeas corpus just means the right to challenge the legality of one’s detention in a civil proceeding in a U.S. court.)

As American University law professor Steve Vladeck explains, the Gohmert amendment does nothing to restore the right to habeas corpus, which was never taken away in the 2012 NDAA in the first place. In fact, the Gohmert amendment undermines the right to habeas corpus for some people arrested in the United States — in particular for anyone here in violation of U.S. immigration law. (Everyone has always had the right to challenge the legality of their detention in a U.S. court regardless of their immigration status.) It also could allow the government to forbid a detainee from taking his case to court, or even obtaining legal counsel, for the first 30 days of detention. Currently, any detainee can file a petition for habeas corpus as soon as he’s taken into U.S. custody.

In short, an amendment that’s masquerading as an effort to restore civil liberties would actually undermine them. Even more pernicious, its real purpose is to detract support from the amendment that would actually improve things — the Smith-Amash amendment.

As a group of 27 retired military generals and admirals wrote in a letter to Congress yesterday supporting that amendment:

[W]e strongly believe that sound national security policy depends on faithful adherence to the rule of law. Though it is lawful for the military to detain those engaged in hostilities in an armed conflict, the armed forces should not supplant our law enforcement and intelligence agencies at home.

Tell your Congressperson not to be fooled by substitutes.

Follow Daphne Eviatar on Twitter: www.twitter.com/deviatar

In December 2011, the Obama Administration issued a Presidential directive to protect LGBT rights at home and abroad across U.S. government agencies. A six month progress review is expected to take place this summer. Today’s Equality Talk will highlight recommendations highlighted in the report and steps that the United States can take in making sure that LGBTI refugees have access to safe housing and protection from violence.

Watch Equality Talk starting at 3:30pm EST:

Live streaming by Ustream

What investors should know ahead of Facebook’s IPO.

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• Much of Facebook’s IPO projected income depends on entry into China, a nation that is hostile to privacy and free expression. 

  But what is Facebook’s plan for staying in China? Google quit China after determining that dealing with authorities undermined its brand and put its trade secrets at risk. China, like other oppressive countries, is hostile to privacy and free expression. To operate in China, Facebook would likely have to partner with search engine giant Baidu, which already complies with China’s censorship regime, the Great Firewall.Censorship is standard operating procedure in China; that’s the cost of doing business there. But the Chinese government is likely to demand more than just compliance with the Great Firewall. If it asks Facebook for information about activists — which it could easily do under its overly broad state secrets law — would Facebook provide it?

  There are undoubtedly some things Facebook would refuse to do under government pressure. Where and how will it draw those lines? Does Facebook have policies to guide such decisions? Will it make them public? An ad hoc policy whereby it responds to government demands on a case-by-case basis is insufficient. Facebook should establish clear policies to guide its actions as it responds both to the demands of governments and the needs of users. And it should make them public so that the outside world can evaluate its actions according to Facebook’s own standards.

  Potential investors should understand the business risks companies like Facebook take on when they fail to protect the rights of users. If Facebook is serious about being the industry leader on privacy, it should use its mega-IPO to tell the world what that means by including an explicit human rights section in its written privacy policy.

• Facebook’s privacy policies have come under fire for lack of transparency. 

  Concerns about privacy issues deter potential users. According to a recent survey, 21% of people who don’t use Facebook named privacy concerns as the number one reason. The Federal Trade Commission recently ordered Facebook to be clearer with users about its privacy policies and to undergo regular independent review. The FTC review follows similar ones in Canada, Sweden, Ireland, the UK and Germany. Taken together, they establish that Facebook’s privacy policies are prohibitively confusing, make it difficult for users to protect personal information, expose to disclosure information users believe is private, and are changed without adequate warning or consent from users.Facebook’s privacy policies distinguish between what it calls “your information,” which includes registration information and information users post about themselves, and “information” about you, which includes the vast amount of data that Facebook collects about users. The FTC order requires Facebook to make disclosures and obtain affirmative consent before sharing “your information” with third parties, but doesn’t restrict sharing “information” about you. In addition, Facebook’s settlement with the FTC also requires it to clearly and prominently disclose to users specifically how and when their information is used, maintain a comprehensive privacy program to address existing and foreseeable issues, and submit to a privacy policy assessment by a qualified independent assessor every two years for 20 years.

  Access to some of Facebook’s privacy settings, however, remains needlessly difficult and opting out of some policies can require users to take multiple steps.

  Facebook has proposed changes to its privacy policy that make it clearer what information users can and cannot control. Facebook is currently taking user comments on the changes through its governance page and will finalize the updates on May 18, the same day as the IPO. A document with the proposed changes can be found here.

• The Global Network Initiative provides assurance that companies are taking steps to address these challenges.The Global Network Initiative (GNI) is a multi-stakeholder organization that protects online freedom and privacy in the face of government pressure on companies. Company members of GNI incorporate its guidelines into their policies and practices and undergo independent assessments of their efforts. In addition, GNI members work collaboratively to identify and address emerging threats stemming from government practices and policies that might limit or degrade online services.

  Human Rights First hopes that Facebook will use its time as an observer of the GNI to prepare to become a full member and adopt the corresponding obligations including implementing GNI principles and committing to accountability. This would address ongoing concerns about Facebook’s commitment to online privacy and free expression.

• One of the new female members of parliament, Azza al-Garf, is being taken to court by the New Women Foundation for advocating the repeal of 2008 legislation which banned female genital mutilation (FGM).

• In addition to a possible repeal of the FGM ban, the new parliament has been changing personal status laws to discriminate against women even more harshly than during the Mubarak era. One debate centers around whether to repeal the “Khulaa Law,” enacted to allow women to initiate no-fault divorce.

• Also at risk for repeal are last year’s custody amendments, which allowed women to have custody of children until they turn fifteen.

• Violence against women has not decreased since the revolution. Despite a judge’s ruling that “virginity tests” on protestors are illegal, there are allegations that SCAF continues the practice. In the recent protests at the Defense Ministry building in Cairo, over a dozen women were arrested. Some alleged that guards sexually assaulted them by inspecting their vaginas for drugs. Others complained of verbal and sexual abuse. These abuses follow the acquittal of a doctor accused of conducting these tests.

• Women make up less than two percent of the new parliament, occupying only 8 seats out of 508. Previously, quotas ensured a certain level of representation. Most recently, the 2010 law required 64 women members, but this was viewed as a tool of the old regime and discarded. There are no women running for president and women’s rights are not a major issue in the election. Some women’s organizations are insisting that the new president appoint a female as vice-president.

Pushing back against these assaults on women’s rights groups like Nazra for Feminist Studies, a partner of Human Right First, which is involved with The Women & Constitution Working Group. The group is proposing additions to the constitution to ensure protections for women, including equality and nondiscrimination.

Nazra has joined other groups opposing SCAF’s abuses of women, denouncing its “policies of suppressing freedom of expression and using the military judiciary as a tool to subjugate civilians and harass peaceful activists.” The groups report that “hundreds” of protestors have been abused, detained, and even killed since last year’s revolution, and that dissent is still as dangerous as it was under the Mubarak regime.

One positive development has been the grassroots movement to prevent violence against women. Human Rights First congratulates the founders of HarassMap for winning the “BOB” jury award for “Best Use of Technology for Social Good.” The Deutsche Welle International Blog Awards, or “The BOBs,” are presented annually to the blogs that “champion the open exchange of ideas and freedom of expression.”

HarassMap was featured by Human Rights First as an innovative use of social media to expose and prevent violence against women. The platform allows women to report sexual harassment by email, text, or Twitter, and then maps these instances using crowdsourcing. The HarassMap team then uses this information to follow up with communities where there have been many instances of harassment in order to increase women’s safety in these areas. Though HarassMap was founded before the Arab Spring, it had become a powerful tool for Egyptian women activists.

With continuing violence against women and legal setbacks, Egyptian women still struggle for basic human rights as Egypt stumbles on the path to democracy. But thanks to the inspiring resilience of women’s rights activists, there is hope.

The use of psychiatry to pressure dissidents, religious activists, and opposition leaders was not uncommon in the Soviet Union. Ironically, while churchgoers were routinely hospitalized for ‘insanity,” it was Efimov’s criticism of the Orthodox Church that triggered his prosecution. He was charged under article 282, part 1, for criticizing church leaders and believers in an online article published in December 2011.

Regional human rights group AGORA, whose lawyers represent Efimov, promised to conduct an independent psychiatric evaluation for their client, reminding the government that “the European Court has a clear and unequivocal position in relation to the grounds on which people can be placed in psychiatric hospitals,” which are hardly applicable in this case. AGORA is preparing to take this case to the Supreme Court of Karelia.

Meanwhile, state pressure on Efimov keeps mounting. This weekend, our partners from the SOVA Center for Information and Analysis in Moscow reported an arson attack on the Saint Catherine Cathedral in Petrozavodsk. Two days after this heinous incident, Efimov was summoned for another round of questioning, and the investigator alleged that the attack was carried out by his supporters—another effort by the government to interfere with his work. Efimov had condemned the attack on the cathedral and sent condolences to congregants and denies any involvement, claiming that his being at the center of this arson investigation is baseless and is yet another example of interference in his daily work as a human rights defender in Karelia.

Summary of the Smith-Amash Amendment

• What it would do: The Smith-Amash amendment would resolve two key questions that were left open during the last year’s NDAA debate on the detention of individuals suspected of involvement with terrorism. First, the Smith-Amash Amendment would ban indefinite military detention and military commission trials in the United States, making clear that individuals apprehended on U.S. soil who are suspected of terror-related activities can only be tried in a civilian court with all the corresponding constitutional protections. Second, the amendment would repeal a provision in the FY 2012 NDAA that requires that a category of foreign terrorism suspects be held in military custody, absent a presidential waiver.

A Closer Look

• What it says: “In the case of a covered person who is detained in the United States, or a territory or possession of the United States, pursuant to the Authorization for Use of Military Force, [the National Defense Authorization Act for Fiscal 2012], or the National Defense Authorization Act for Fiscal Year 2013, disposition under the law of war shall occur immediately upon the person coming into custody of the Federal Government and shall only mean the immediate transfer of the person for trial and proceedings by a court established under Article III of the Constitution of the United States or by an appropriate State court. Such trial and proceedings shall have all the due process as provided for under the Constitution of the United States. No person detained, captured, or arrested in the United States, or a territory or possession of the United States, may be transferred to the custody of the Armed Forces for detention under the Authorization for Use of Military Force, [the National Defense Authorization Act for Fiscal 2012], or the National Defense Authorization Act for Fiscal Year 2013.”

• What it would do: During the debate of the detainee provisions in the FY 2012 NDAA, there was considerable concern over the prospect that individuals in the United States thought to be involved with terrorism could be held indefinitely in military custody without ever facing charges or trial. The above subsections of the Smith-Amash amendment, if passed into law, would prohibit transfer of these individuals into military custody and require that any trials be in civilian court with all the corresponding constitutional protections; under the above subsections, these individuals may not be held indefinitely without charge or trial, or tried by military commissions. Because the ban on indefinite detention and military commission trials only applies within the United States, the Smith-Amash amendment would not alter the status quo for detainees held at Guantanamo or anywhere else outside of the United States.

• What it says: “This section shall not be construed to authorize the detention of a person within the United States, or a territory or possession of the United States, under the Authorization for Use of Military Force, [the National Defense Authorization Act for Fiscal 2012], or the National Defense Authorization Act for Fiscal Year 2013.”

• What it would do: Though some proponents of the 2012 NDAA detainee provisions sought to codify authority to indefinitely detain individuals picked up within the United States, Congress ultimately agreed on a provision that made clear that the NDAA shall not be construed to “affect existing law or authorities” with respect to the detention of individuals captured or arrested in the United States. However, “existing law” is unsettled on the question, and the Bush administration on two occasions held individuals – José Padilla (a U.S. citizen) and Ali al-Marri (a legal resident) – in military custody for years without charge or trial, with questionable-at-best legal justification. The above subsection makes clear that although the Smith-Amash amendment prohibits indefinite detention if a future President seeks to claim this extraordinary authority to use the military to detain individuals in the United States, the amendment is not authorizing any such detention.

• What it says: “Repeal of Requirement for Military Custody—Section 1022 of the National Defense Authorization Act for Fiscal Year 2012 is hereby repealed.”

• What it would do: In addition to codifying the authority of the military to indefinitely detain terrorism suspects without charge or trial, the FY 2012 NDAA, in section 1022, requires that a category of foreign terrorism suspects be initially held in military custody, absent a presidential waiver. Though the President issued a Presidential Policy Directive limiting the instances in which mandatory military custody applies, future Presidents are not bound by this directive. The above subsection of the Smith-Amash amendment would repeal the FY 2012 NDAA mandatory military custody provision altogether.

Under the detention provisions in the defense authorization bill, who can be detained indefinitely by the military without charge or trial?

The FY 2012 NDAA permits the military to indefinitely detain without charge or trial individuals determined to be members or substantial supporters of al Qaeda, the Taliban, or associated forces. The law does not define “associated forces” or what it means to provide substantial support.

Are American citizens or other individuals apprehended within the United States subject to indefinite military detention under the FY 2012 NDAA?

American citizens can be detained under the FY2012 NDAA because the bill codifies into federal statute existing authorities, which allow the military to detain U.S. citizens. The law is less straightforward for individuals, including citizens, apprehended in the United States. Although an amendment was added making clear that the FY 2012 NDAA is not intended to “affect existing law or authorities” relating to the detention of U.S. citizens or others picked up on U.S. soil, existing law is not clear on this point. For example, the Bush administration held two individuals apprehended in the United States – José Padilla (a U.S. citizen) and Ali al-Marri (a legal resident) – in military custody for years under the legal authorities that are now codified in the FY 2012 NDAA. If this or a future administration were to use the military to detain an individual apprehended on U.S. soil, it would pose serious legal issues, which would be decided by a court. President Obama has stated that he will not place an American citizen in indefinite military detention.

Aren’t citizens afforded special rights under the Constitution that protect against the kind of indefinite military detention contemplated in the FY 2012 NDAA?

When it comes to fundamental liberty and due process guarantees, the Constitution affords protections to all individuals within the United States, irrespective of citizenship. These protections include the right to due process and equal protection under the law.

Does the FY 2012 NDAA suspend habeas corpus? Doesn’t habeas corpus ensure against indefinite detention without charge or trial?

In codifying the authority of the military to hold terror suspects without charge or trial, the FY 2012 NDAA did not suspend habeas corpus or purport to overturn any other constitutional rights. However, habeas corpus, though an incredibly important right, has not prevented the government from holding individuals indefinitely without charge or trial. Habeas corpus, in this context, means that for individuals in the United States, or at Guantanamo, the government only needs to prove to a federal judge that it’s more likely than not that the person in question is a “member” or “substantial supporter” of al Qaeda, the Taliban, or an “associated force”. It’s not clear what these vague terms mean, and in a habeas proceeding the government often presents classified information, the content of which is presumed by the judge to be accurate and reliable. Importantly, habeas corpus in this context does not guarantee a jury trial, at which the individual must be found guilty of crimes beyond a reasonable doubt, or ensure that the government only arrest people when it has probable cause.

Does the FY 2012 NDAA force the administration to place terror suspects into military custody?

In addition to codifying the military’s detention authority, the FY 2012 NDAA requires the military to take initial custody of a category of foreign terrorism suspects, absent a presidential waiver. Specifically, the law mandates military custody for foreign terror suspects determined to be 1) part of al Qaeda or an associated force, and 2) involved in a terror plot against the U.S. or its allies. The President issued a policy directive substantially limiting the instances in which mandatory military custody applies, though it leaves open the possibility that it could apply to foreign terrorism suspects arrested in the United States on terrorism charges.

Won’t holding terrorism suspects in military rather than civilian custody make us safer by denying suspects a right to a lawyer and other essential due process requirements?

No. The criminal justice system has produced large amounts of invaluable counterterrorism intelligence information precisely because it provides incentives for suspects to cooperate. Many criminal suspects apprehended cooperate with authorities, whether or not they are read Miranda rights. Intelligence gathered through the criminal justice process includes telephone numbers and email addresses used by al Qaeda and other terrorist groups, al Qaeda communications methods and security protocols, al Qaeda recruiting and financing methods, the location of al Qaeda training camps and safe houses, information on al Qaeda weapons programs, the identities of operatives involved in past attacks, and information about future plots to attack U.S. interests. Holding individuals in indefinite military detention with little to no prospect for release does not provide incentives for cooperation.

Does the FY 2012 NDAA ban civilian terrorism trials? Does it require that suspected terrorists be tried by military commission?

In general, terrorism suspects can be tried either in civilian courts or military commissions under the FY 2012 NDAA. However, the FY 2012 NDAA does block the transfer of Guantanamo detainees to the United States for prosecution in civilian courts. Even detainees subject to initial mandatory military custody can be tried in civilian courts. While the FY 2012 NDAA preserves the option of civilian terrorism trials in many cases, it also politicizes prosecutorial decisions. For example, a provision in the FY 2012 NDAA requires the Attorney General to consult with the Secretary of Defense and Director of National Intelligence before moving forward with certain terrorism-related prosecutions.

Does the FY 2012 NDAA prevent Guantanamo from being closed?

Yes, at least for the foreseeable future. The FY 2012 NDAA contains within it transfer restrictions that limit the Obama administration’s flexibility to transfer detainees out of Guantanamo. These restrictions are in effect until the end of the 2012 fiscal year (September 30, 2012). Despite these restrictions, the Obama administration can, and should, work to fulfill its pledge to close Guantanamo by transferring as many detainees as possible to foreign countries that will accept them.

Since 2006, the Second Circuit has adjudicated more than 16,000 immigration cases.  In all too many cases, I could not but notice a substantial impediment to the fair and effective administration of justice: the too-often deficient counsel of represented non-citizens.  For immigrants, the stakes could not be greater – whether they can stay in the United States, whether they will be separated from their loved ones, often their children.

Over the last few years, Judge Katzmann has galvanized and led efforts to address the legal representation needs of indigent asylum seekers and immigrants in New York, working with a group of attorneys, bar associations, non-profit organizations, judges, New York City and State officials, law schools, and other concerned New Yorkers.  This group is known as the Katzmann Study Group.  In his speech, Judge Katzmann outlined a number of steps the group has initiated – including the creation of a Fellowship at Human Rights First, with the support of the Leon Levy Foundation, to help promote pro bono representation in asylum cases in New York.

Judge Katzmann also highlighted a number of the Katzmann Study Group’s disturbing findings – including:

• A striking percentage of detained (67%) and non-detained (27%) immigrants who appear before the New York Immigration Courts do not have legal counsel.
• The two most important variables affecting the ability to secure a successful outcome in an immigration court case are having legal representation and being free from detention.
• The greatest impediments to increasing the capacity of existing legal providers are a lack of funding and a lack of resources to build a qualified core of experienced removal-defense attorneys.

In closing his speech, Judge Katzmann eloquently made the case for why American lawyers and all Americans should care about the legal representation needs of immigrants and asylum seekers:

As I reflect on my subject tonight, immigrant representation, my own family’s past no doubt plays a part.  My father is a refugee from Nazi persecution, my mother the child of Russian immigrants.  I can still hear the accents and voices of my own relatives, who escaped persecution, who wanted to become part of this great country, and who, through their toil and belief in the American dream, made this great nation even greater.   When we work to secure adequate representation for immigrants, not only are we faithful to our own professional responsibilities, not only do we further the fair and effective administration of justice, but we also honor this nation’s immigrant experience.

There are so many ways for the legal community – and for all Americans– to respond to Judge Katzmann’s call to action.  Lawyers can volunteer their time.  Individuals and other donors can support legal providers so that they can hire competent staff to provide counsel to indigent immigrants.  Bar associations and other concerned Americans can replicate the work of the Katzmann Study Group across the country.  And all Americans can tell their representatives in Congress that they are concerned about the lack of legal representation for indigent immigrants  and want the government to take steps to address what Judge Katzmann accurately calls a “dire problem of grave human consequences.”

Human Rights First congratulates Judge Katzmann on his receipt of the prestigious Learned Hand Award, and expresses its deep appreciation for his commitment and leadership in highlighting the legal representation needs of immigrants and asylum seekers.

To read Judge Katzmann’s speech, click here.

Click to learn about Human Rights First and our pro bono representation program for asylum seekers.

Bahraini human rights advocate Husain Abdulla looks at the Bahraini Children's Art Exhibition. (Photo By Chris Maddaloni/CQ Roll Call)

In early 2011, the government of Bahrain met calls for democracy with a violent crackdown. Dozens of people were killed, and thousands arrested. Today, the crackdown on pro-democracy protesters continues and King Hamad and his unelected government remain in place.

Children have witnessed much of this violence first hand and we asked some of them to draw something from their experience. These are now being exhibited on Capitol Hill in Washington, DC. Many of the drawings feature tents at the “Pearl Roundabout”––the center of democracy protests in Bahrain during February and March 2011, and also the “Down Down Hamad” slogan.

We asked clinicians with experience in trauma to look at the drawings and make an assessment––these are also included. In one typical example, the clinical analysis describes a drawing as “overtly indicative of trauma. This child is experiencing heightened emotions, particularly fear, sorrow, and anger. She appears to be in an acute phase of grief.”

View the gallery. The exhibition will be displayed on Capitol Hill, from May 7-11, 2012, in the United Methodist Building, 100 Maryland Ave, NE (Lobby). The exhibition will also be displayed at other U.S. venues throughout the year.