Posted by David Kopel:
Suit filed over Dept. of Homeland Security Memo/"Policy" on Right-wing
Extremists:
http://volokh.com/archives/archive_2009_04_12-2009_04_18.shtml#1239922107
The [1]Thomas More Law Center has [2]filed suit in the Eastern
District of Michigan regarding the infamous Department of Homeland
Security "Intelligence Assessment," [3]Rightwing Extremism: Current
Economic and Political Climate Fueling Resurgence in Radicalization
and Recruitment. The Assessment states "The information is provided to
federal, state, local, and tribal counterterrorism and law enforcement
officials so they may effectively deter, prevent, preempt, or respond
to terrorist attacks against the United States."
Critics of the Assessment object to passages such as the following:
Rightwing extremism in the United States can be broadly divided
into those groups, movements, and adherents that are primarily
hate-oriented (based on hatred of particular religious, racial or
ethnic groups), and those that are mainly antigovernment, rejecting
federal authority in favor of state or local authority, or
rejecting government authority entirely. It may include groups and
individuals that are dedicated to a single issue, such as
opposition to abortion or immigration....
The possible passage of new restrictions on firearms and the return
of military veterans facing significant challenges reintegrating
into their communities could lead to the potential emergence of
terrorist groups or lone wolf extremists capable of carrying out
violent attacks....
Proposed imposition of firearms restrictions and weapons bans
likely would attract new members into the ranks of rightwing
extremist groups, as well as potentially spur some of them to begin
planning and training for violence against the government. The high
volume of purchases and stockpiling of weapons and ammunition by
rightwing extremists in anticipation of restrictions and bans in
some parts of the country continue to be a primary concern to law
enforcement.
Debates over appropriate immigration levels and enforcement policy
generally fall within the realm of protected political speech under
the First Amendment, but in some cases, anti-immigration or
strident pro-enforcement fervor has been directed against specific
groups and has the potential to turn violent. [DK: The implication
here seems to be that being against "the vast tide of illegal
immigration" is protected by the First Amendment, but being against
"the vast tide of illegal immigration by Central Americans" is not,
and is characteristic of "right-wing extremism." Even though,
patently, Central Americans are by far the largest groups of
illegal aliens currently in the United States.]
Notably, there are passages that recognize that certain behaviors or
beliefs are in themselves not proof that a person is a "right wing
extremist." For example:
Both rightwing extremists and law-abiding citizens share a belief
that rising crime rates attributed to a slumping economy make the
purchase of legitimate firearms a wise move at this time.
Weapons rights and gun-control legislation are likely to be hotly
contested subjects of political debate in light of the 2008 Supreme
Court's decision in District of Columbia v. Heller in which the
Court reaffirmed an individual's right to keep and bear arms under
the Second Amendment to the U.S. Constitution, but left open to
debate the precise contours of that right. Because debates over
constitutional rights are intense, and parties on all sides have
deeply held, sincere, but vastly divergent beliefs, violent
extremists may attempt to co-opt the debate and use the controversy
as a radicalization tool.
But even the above sets up a dichotomy between "rightwing extremists
and law-abiding citizens." There is nothing illegal about holding and
expounding extremist, irrational, and even hateful political views,
whether those views are left-wing extremist or right-wing extremist.
Plaintiffs in the lawsuit are the [4]Center for Bioethical Reform (a
group which chacterizes its mission as "graphically exposing the
injustice of abortion"); an Iraq War veteran who lives in the Eastern
District of Michigan; and Michael Weiner (a talk-show host who uses
the on-air name "Michael Savage").
The suit alleges that the DHS Intelligence Assessment "is designed to
deter, prevent, and preempt activities that government officials deem
to be in opposition to the policies advanced by the Obama
administration. Such activities are considered harmful, dangerous, and
a threat to national security. By deterring, preventing, and
preempting such activities, federal officials seek to influence
domestic public opinion in support of the favored policies of
President Obama."
It is further alleged that the Intelligence Assessment (which
plaintiffs characterize as DHS "Rightwing Extremism Policy") "is a
tool of intimidation for federal, state, and local government
officials. It provides a basis for government officials to abuse their
positions of power to stifle political opinion and opposition. It also
provides political adversaries with a basis for making official
complaints and allegations against 'rightwing extremists' to
government officials, thereby empowering the 'heckler' with a 'veto'
over controversial political messages."
Thus, plaintiffs allege an effort to chill the exercise of their First
Amendment rights, and a denial of their Fifth Amendment right to Equal
Protection. (Which well-established precedent has declared to be
implicit in the Fifth Amendment's Due Process clause.)
Now, on some websites, comments would consist of ugly arguments
between people who love or loathe Michael Savage, or trolling by
people claiming, "You only complain about civil liberties
infringements when Democrats do them." But well-informed VC readers
know that many VC authors were vocal opponents of what they considered
to be civil liberties infringements by the George W. Bush
administration, and some of the older VC writers were also critics of
alleged civil liberties infringements during the George H.W. Bush
administration, and the Reagan administration.
Accordingly, commenters should offer intelligent analysis of whether
the Thomas More Center lawsuit can, on its face, survive a motion to
dismiss. If so, should the case proceed directly to summary judgement,
or is there a need for discovery? Presumably discovery, if permitted,
might reveal information about the motives ("design") of the
Assessment's authors, and the sources on which they relied in forming
the Assessment, which says that it is based on open source
information. (BTW, the Thomas More Center has also [5]filed a FOIA
request for the latter information.)
And yes, it is ironic that Thomas More himself, when he exercised
government power, was a staunch persecutor of religious dissenters; he
was neither the first nor the last lawyer to better serve the cause of
civil liberty when he was out of government favor than when he was in.
References
1. http://www.thomasmore.org/qry/page.taf?id=14
2.
http://www.thomasmore.org/downloads/sb_thomasmore/ComplaintAgainstDepartmentofHomelandSecurity.pdf
3.
http://wikileaks.org/wiki/US_DHS:_Rightwing_Extremism:_Current_Economic_and_Political_Climate_Fueling_Resurgence_in_Radicalization_and_Recruitment,_7_Apr_2009
4. http://www.abortionno.org/
5. http://www.thomasmore.org/qry/page.taf?id=19
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