On April 7, 2009, the U.S. Department of Homeland Security (DHS) secretly provided to sheriffs and police departments across the country copies of an “intelligence analysis report” regarding what the DHS labeled as “rightwing extremists” and “rightwing terrorist groups” in the United States. The document, Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment, was not a secret long.

Within days of its delivery, conservative talk radio hosts and then the main stream media made the story national news prompting calls that DHS Secretary Janet Napolitano resign! What made the report of such concern was that it targeted unnamed individuals and groups because of their views on such issues as illegal immigration, centralizing power in Washington, D.C. rather than in state and local governments, restricting the right to keep and bear arms, abortion, and the loss of American sovereignty.

Even more shocking, noted the media and then some Senators as well as U.S. Representatives, was that the report singled out the military veterans returning from service in Iraq and Afghanistan because of their “combat skills and experience.” In fact, so disturbing was the slander of military veterans that the American Legion demanded an apology from Secretary Napolitano.

The report targeted more than military veterans; it averred that those who held certain public policy views were “rightwing extremists” and were or could become members of “rightwing terrorist groups” and that both posed a threat to national security. Thus, the report declared:

• “Rightwing extremists are increasingly galvanized by [public policy] concerns and leverage them as drivers for recruitment.”

• “Over the past five years, various rightwing extremists . . . have adopted the immigration issue as a call to action . . . .”

• “Many rightwing extremist groups perceive recent gun control legislation as a threat to their right to bear arms . . . .”

• “Rightwing extremist paranoia of foreign regimes could escalate or be magnified in the event of an economic crisis . . . .”

• “[R]ightwing extremists will attempt to recruit and radicalize returning [military] veterans. . . .”

• “DHS encourages [report] recipients . . . to report information concerning suspicious or criminal activity to DHS and the FBI.”

Given that the DHS document and its distribution along with reporting instructions to law enforcement entities across the country pose a threat to the civil rights and liberties of all Americans and especially those Americans—many of whom support the public interest litigation of Mountain States Legal Foundation (MSLF)—who hold conservative or libertarian views, MSLF filed a demand for documents using the Freedom of Information Act (FOIA).

In two seven-page letters delivered simultaneous to the U.S. Office of Intelligence and Analysis and the U.S. Privacy Office, MSLF demands delivery of the documents within the legally required 20 working days. In its letters, MSLF seeks, among many other and assorted documents:

• All documents “that reflect, contain or disclose the facts on which the [Report’s] assertions and conclusions” were based;

• “All documents that contain or reflect the identity and/or role, duties or job title[s] of the Report’s authors;” and,

• All documents that disclose the names of any and all employees who “knew about and/or approved the Report.”

MSLF intends to ensure that these documents see the light of day so that they may be promptly discredited and so that law enforcement agencies will know that they may not use the DHS report to spy on, report about, or take action against the legal activities of those who hold the legitimate beliefs set forth in the report. Recent events prove the need for MSLF’s action.

In 2008: Ohio officials investigated “Joe the Plumber” for questioning Senator Obama; Obama’s lawyers sent threatening letters to news agencies to stop NRA ads in Pennsylvania; and a Missouri County Attorney threatened citizens with criminal libel if they made “false” statements about Obama.

More recently, a Missouri agency issued a report linking conservative groups to domestic terrorism and warning law enforcement agencies to look out for suspicious individuals based on their “bumper stickers” and "radical" views. The Chief of the Missouri State Patrol quickly denounced the report.

Unfortunately, the DHS report has not been withdrawn, nor have any of its statements been repudiated. Instead, the DHS is pressing forward and “will be working with its state and local partners [e.g., the Missouri agency] over the next several months.” The DHS says this despite that a key DHS source was the one used by the Missouri agency for its discredited report.

It is imperative that the bases for the DHS report be exposed and discredited to ensure that law enforcement agencies do not rely upon that report to infringe upon the First Amendment and other rights of Americans.

MSLF believes there is no legal basis for the DHS to withhold the documents requested by MSLF; however, if those documents are withheld, the FOIA provides that MSLF may file a lawsuit to force their release.