Federal Lawsuit, Senators Demand Answers from DHS; Levin Responds

In reaction to the Department of Homeland Security’s recent threat analysis, the Ann Arbor, Michigan-based Thomas Moore Law Center announced that it had filed a federal lawsuit in US District Court for the Eastern District of Michigan against DHS on behalf of 3 Plaintiffs:

The lawsuit was filed in the U.S. District Court for the Eastern District of Michigan on behalf of nationally syndicated conservative radio talk show host, Michael Savage, Gregg Cunningham (President of the pro-life organization Center for Bio-Ethical Reform, Inc (CBR)), and Iraqi War Marine veteran Kevin Murray. The Law Center claims that Napolitano’s Department (DHS) has violated the First and Fifth Amendment Constitutional rights of these three plaintiffs by attempting to chill their free speech, expressive association, and equal protection rights. The lawsuit further claims that the Department of Homeland Security encourages law enforcement officers throughout the nation to target and report citizens to federal officials as suspicious rightwing extremists and potential terrorists because of their political beliefs.

The Law Center stated the following as the basis for their suit:

Richard Thompson, President and Chief Counsel of the Law Center stated, “Janet Napolitano is lying to the American people when she says the Report is not based on ideology or political beliefs. In fact, her report would have the admiration of the Gestapo and any current or past dictator in the way it targets political opponents. This incompetently written intelligence assessment, which directs law enforcement officials across the country to target and report on American citizens who have the political beliefs mentioned in the report, will be used as a tool to stifle political opposition and opinions. It will give a pretext for opponents of those Americans to report them to police as rightwing extremists and terrorists. You can imagine what happens then.”

The Report specifically mentions the following political beliefs that law enforcement should use to determine whether someone is a “rightwing extremist”:

* Opposes restrictions on firearms
* Opposes lax immigration
* Opposes the policies of President Obama regarding immigration, citizenship, and the expansion of social programs
* Opposes continuation of free trade agreements
* Opposes same-sex marriage
* Has paranoia of foreign regimes
* Fear of Communist regimes
* Opposes one world government
* Bemoans the decline of U.S. stature in the world.
* Upset with loss of U.S. manufacturing jobs to China and India
* . . . and the list goes on

…

The Law Center is asking the court to declare that the DHS policy violates the First and Fifth Amendments, to permanently enjoin the Policy and its application to the plaintiffs’ speech and other activities, and to award the plaintiffs their reasonable attorney’s fees and costs for having to bring the lawsuit.

The complaint can be found here.

DHS Secretary Janet Napolitano released a statement following up on the report. The following except is quite telling in what it doesn’t say:

Let me be very clear: we monitor the risks of violent extremism taking root here in the United States. We don’t have the luxury of focusing our efforts on one group; we must protect the country from terrorism whether foreign or homegrown, and regardless of the ideology that motivates its violence.

We are on the lookout for criminal and terrorist activity but we do not – nor will we ever – monitor ideology or political beliefs. We take seriously our responsibility to protect the civil rights and liberties of the American people, including subjecting our activities to rigorous oversight from numerous internal and external sources. [emphasis mine]

One must admit that this is a bit of a politicat canard, as DHS isn’t in the business of doing the actual monitoring of activities; that’s left up to other agencies, such as the FBI, CIA, etc. who all happen to have a hand in the DHS. Therefore, of course DHS doesn’t do any actual monitoring. Rather, they take data that has been collected by other agencies and analyze that data.

In fact, Pamela Gellar at AtlasShrugs makes the point quite clearly (of course, in relation to the tea parties):

Md. Guard Issues Warning to Staff about Local TEA Party Protestors Southern Maryland (hat tip Randall)

CALLAWAY, Md. (April 15, 2009) - A document issued by the Maryland National Guard on April 9 warns full-time Guard personnel to be aware of threats from local citizens protesting income taxes during grass roots events known as TEA (Taxed Enough Already) Parties -- one of which was held on Solomons Island March 22. The Guard document, “Planned TEA Party Protests (FPCON Advisory 09-004),” was believed to have first been revealed by a blog called The Jawa Report. A call today to Col. Kohler, Md. National Guard Public Affairs in Baltimore, confirmed the authenticity of the document. The document was officially classified as UNCLASSIFIED/FOR OFFICIAL USE ONLY (U/FOUO). (The document appears in its entirety at the bottom of this article)

The Guard document describes the TEA Party protests as a movement. “Numerous entities have formed recently to express displeasure/anger over recent federal/state government actions: more taxes, increased spending, higher deficits, a surge of borrowing to pay for it all, bailout of the financial institutions,” stated the document under the heading of SITUATION.

The document appears to treat protestors as potential terrorists. The Point of Contact is identified as “Antiterrorism Program Coordinator” and provides a redacted army.mil email address.

The verbiage in the document advises Guard personnel to prepare for the worst. “Commanders are encouraged to update alert rosters and review emergency evacuation plans/rally points. Ensure all facilities have emergency phone lists posted (i.e. FBI, FIRE, POLICE, HOSPITALS, EMS, ETC…). Be aware of and avoid local protests.”

Despite the alarmist warnings in the document, the lead paragraph states, “there is no known direct threat to MDNG facilities and MDNG members, they may become a target of opportunity during plan protest activities throughout Maryland.”

The Guard document follows closely on the heels of a Dept. of Homeland Security document, released on April 7 that profiles American citizens who are concerned about gun rights and the “current economic and political climate” as potential rightwing extremists and domestic terrorists. The document is titled “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment” and was recently profiled in a Washington Times article.

Yet another Homeland Security document from the Missouri Information Analysis Center (MIAC), leaked to the press in March, profiles vocal supporters of Ron Paul, Bob Barr and Chuck Baldwin as potential domestic terrorists. The so-called MIAC document also cautions police to be aware of citizens carrying a copy of the U.S. Constitution, labeling the document as “political paraphernalia.”

Ron Miller, a prominent Republican from Calvert County who ran against Rep. Steny Hoyer in 2006, and one of the organizers of the TEA Party protests in Maryland, told somd.com that the revelation of the Md. Guard’s document was “kind of timely” given the discovery of the aforementioned Homeland Security document.

Miller said he had received reports from unknown sources that some individuals opposed to the TEA Party message might try to insert themselves into the protests to discredit the initiative. However, nothing happened at any event, to Miller’s knowledge, that supported the reports.

Miller was on the way home from today’s TEA Party protest in Annapolis when we spoke to him. The Annapolis event was specifically mentioned in the Guard document.

Miller said he estimated there were 2500 people at the event he attended. “There were no problems that we could determine,” said Miller. “Given the weather, it went very well.”

Protests were also scheduled today for Baltimore, Bel Air, Cecil County, Frederick, Cumberland, Havre de Grace, Salisbury, Westminster, and Washington, DC.
[...]

RELATED INFORMATION:

Anti-Tax Protest Draws Hundreds on Solomons, April 1, 2009
HEADQUARTERS, MARYLAND ARMY NATIONAL GUARD
13620 Meuse Argonne Circle
Camp Fretterd Military Reservation
Reisterstown, Maryland 21136

JFHQ-MDARNG-G3 9 April 2009

MEMORANDUM FOR SEE DISTRIBUTION

SUBJECT: Planned TEA Party Protests (FPCON Advisory 09-004)

1. (U) This Maryland Army National Guard (MDARNG) Force Protection advisory is in response to a nationwide planned protest activities scheduled for April 15, 2009. Although there is no known direct threat to MDNG facilities and MDNG members, they may become a target of opportunity during plan protest activities throughout Maryland.

2. (U) FORCE PROTECTION CONDITIONS.

a. (U) USNORTHCOM FPCON baseline for the continental United States, Alaska, and Canada remains unchanged at ALPHA.

b. (U) MDARNG is not recommending a FPCON baseline change at this time.

3. (U//FOUO) SITUATION: Numerous entities have formed recently to express displeasure/anger over recent federal/state government actions: more taxes, increased spending, higher deficits, a surge of borrowing to pay for it all, bailout of the financial institutions, and etc. This movement can be identified by different variations of “TEA Party” or “Tea Party.” Past “TEA Party” events have been peaceful. There was a “Tea party” event at Solomons, Maryland, on March 22, 2009. “TEA” stands for “Taxed Enough Already.”

4. (U) KNOWN LOCATIONS AND EVENTS: According various websites and open source information, planned protest locations and time on April 15 in Maryland are:

*Annapolis, 12:00 pm -- 2:00 pm, Campbell Park (Dock/Boardwalk), Annapolis Harbor

*Baltimore, 3:00 pm -- 5:00 pm, The Inner Harbor

*Bel Air, 12:00 pm, Bel Air Courthouse Plaza on Main Street

*Cecil County, 4:00 pm -- 6:00 pm, Elkton Christian Academy, 144 Appleton Road

*Frederick, 3:00 pm, City Hall then march to Winchester Hall

*Cumberland, 12:00 pm, Baltimore and Mechanic Streets

*Havre de Grace, 4:00 pm -- 6:00 pm, Tydings Park Gazebo

*Salisbury, 4:30 pm -- 6:30 pm, Downtown Salisbury

*Westminster, 6:30 pm, Legends Cafe off of Route 140 in Westminster

*Washington DC, 12:00pm-2:00pm, US Treasury Department -- National Stage; 11:00am-3:00pm Lafayette Park -- Grassroots Stage (not MD)

5. (U) FORCE PROTECTION RECOMMENDATIONS:

a. (U) Full-time personnel (i.e. armories) and recruiters need to be aware their surroundings. Contact local law enforcement when feel threaten by protesters or protesters trespass into MDNG property.

b. (U//FOUO) Commanders at all levels should establish relationship with local police in order to understand the local threats. Keep family members informed. Talk to other service personnel to share information. Practice OPSEC. Don’t provide personal information to anyone you don’t know. Avoid high risk areas.

c. (U//FOUO) Commanders are encouraged to update alert rosters and review emergency evacuation plans/rally points. Ensure all facilities have emergency phone lists posted (i.e. FBI, FIRE, POLICE, HOSPITALS, EMS, ETC…). Be aware of and avoid local protests. Report all potential protest activities to your next higher headquarters.

d. (U//FOUO) Continue implementation of RAM and a review of policies and procedures, especially in regards to cooperation or assistance with local emergency responders.

5. POC is Antiterrorism Program Coordinator, –[redacted- at (410) 702-[redacted] or by e-mail [redacted]@us.army.mil
[Redacted LTC author's name]

DISTRIBUTION:
ATOs
MSCs CDRs [emphases in posting]

RedState and Michelle Malkin report that 7 GOP Senators submitted a letter to DHS requesting the bases for the report’s claims (PDF):

Dear Secretary Napolitano,

We write today regarding the release of the Department of homeland Security (DHS) report entitled “Rightwing Extremism Current Economic and Policial Climate Fueling Resurgence in Radicalization and Recruitment”and prepared by the Extremism and Radicalization Branch of the Homeland Environment Threat Analysis Division.

While we agree that extremists of all varieties represent a potential threat to the United States, we are troubled by some of the statements included as fact in the report titled above.

First, your report states that “rightwing extremists will attempt to recruit and radicalize returning veterans in order to exploit their skills and knowledge derived from military training and combat.” Using the DHS rationale, do you also believe that weapons familiarity and tactical training means local, state, and federal law enforcement personnel, and members of the National Guard, are also being recruited? To suggest that a soldier returning from a combat tour is more prone to join an extremist group is unconscionable and insulting to our brave men and women who risk their lives protecting our freedom.

Second, the report states that the millions of Americans who believe in the Second Amendment are a potential threat to our national security. Why? Do you have statistics to prove that the law-abiding Americans who purchase a legal product are being recruited by so-called hate groups? If so, please present us with DHS’s independent data.

Third, the report identifies those individuals who believe in such issues as pro-life legislation, limited government, legal versus illegal immigration and limited federal government as potential terrorist threats. We can assure you that these beliefs are held by citizens of all races, party affiliations and sex, and should not be listed as a factor in determining potential terror threats. A better way to describe them is as citizens exercising their First Amendment rights.

Also, you listed those who bemoan the decline of U.S. stature and the loss of U.S. manufacturing capability to China and India as being potential rightwing extremists. We would suggest that the millions of Americans who have lost their jobs in the manufacturing industry to foreign countries are no potential terror threats, but rather, honest Americans worried about feeding their families and earning a paycheck. Once again, to classify Americans who have lost their jobs as potential terror threats does a disservice to millions of Americans.

In closing, we support the mission of the DHS in protecting our country from terror attacks and are proud of the many DHS employees who make it possible, in conjunction with our state and local law enforcement. We ask that DHS not use this report as a basis to unfairly target millions of Americans because of their beliefs and the rights afforded to them in the Constitution, and that you provide us with the data that supports the claims listed in the report titled above.

Sincerely,

David Vitter (R, Louis.)
Sam Brownback (R, Kansas)
Jim Demint (R, So Car.)
Tom Cobrun (R, Oklahoma)
Richard Burr (R, No. Car.)
Lisa Murkowski (R, Alaska)
James Inhofe (R, Oklahoma)

Nevertheless, another poster at RedState thinks that “Vitter, DeMint, et al: time to go Patrick Henry on Obama’s assault on conservatives.”

In fact, the report even got FoxNews’ Judge Andrew Napolitano in an uproar.

As HotAir.com notes, what’s really interesting is that civil liberties lawyers’ warnings were apparently ignored in the rush to release the report:

The DHS pushed its report out on right-wingers in one hell of a hurry, according tothe AP. Internal reviews of the document showed concerns over potential civil-liberties violations before its publication, but DHS ignored them in order to quickly make the document public. What was the rush?

Civil liberties officials at the Homeland Security Department flagged language in a controversial report on right-wing extremists, but the agency issued the report anyway. …

Homeland Security spokeswoman Amy Kudwa said the report was issued before officials resolved problems raised by the agency’s civil rights division about analysts’ definition of right-wing extremism.

In a footnote in the report, right-wing extremism was defined as hate-motivated groups and movements, such as hatred of certain religions, racial or ethnic groups. It went on to say, “It may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration.”

This answers the rather absurd meme that has popped up on liberal blogs, that the Bush administration is responsible for this report. First, while the Bush administration might have wanted an assessment of right-wing extremist threats, it didn’t necessarily want one that painted returning veterans and conservative thought on abortion, illegal immigration, and federalism as extremist threats, nor did it want a threat assessment that couldn’t find a threat and had no data on actual, specific groups. Secondly, and most obviously, this report was dated April 7, 2009, almost 3 months after Bush left office. [emphasis original]

Update: Talk show host Mark Levin also promises to sue if DHS starts coming after conservatives (thanks, RovingPatrol):

This thing isn’t over by a long shot, folks, especially in light of the anecdotal evidence that seems to point to the President not only being aware of the tea parties happening (and remember that if there were only, say, 500 parties around the nation and they all averaged 500 attendees a pop, that’s still 250,000 based on that very conservative calculation; besides, if these things weren’t that big of a deal, why would even CNN stoop to the level of performing a journalistic hit job?) but likely rushed this report out in order to divert attention from the goings-on.

As I said in my previous DHS posting, never trust the government any more than that government trusts you.



*Reposted from The Right Side of Life