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Justice Louis Brandeis

“Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding…

Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution.”

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Justice Louis Brandeis, dissenting in his opinion for Olmstead v. United States in 1928.

For this case, which was decided over 85-years-ago, the Supreme Court deliberated whether the wiretapping of private telephone conversations — which was initiated by federal agents — could produce evidence that was legally admissible. The Supreme Court eventually ruled, in a 5-4 decision, that such wiretapping was not a violation of either the Fourth or Fifth Amendment, and thereby was not an encroachment on the defendant’s rights.

I wholeheartedly agree with Justice Brandeis’s dissent here. And, happily, so did the Supreme Court — albeit not until four decades later, when they overturned Olmstead with their decision in Katz v. United States in 1967.

In thinking about this underlying but essential truth — that the government, like citizens, is not be allowed to break the law — I am drawn to a juxtaposition which is latent in the story of Marcus Luttrell and the soldiers in his book Lone Survivor. When their lives were put on the line in a very immediate way, when they were at their most vulnerable and had an easy but morally dubious way out, they refused to commit a war crime. They refused to sacrifice their consciences to save their lives. Instead they abided by the rules of combat, knowing that such an agonizing choice would very likely lead to their demise.

Contrast this with the tough-talkers who were in Washington at that time. Bush, Cheney, and co., themselves so allergic to combat when their names were called, shredded not only domestic law (including habeas corpus, arguably the most important legal instrument we’ve got), but also international rules and norms, including the Geneva Conventions and the precedents set at the Nuremberg Tribunal.

While they artfully trampled those elevated values, Luttrell and his valiant friends laid down their lives to save them.

Governments, like people, must not be allowed to break the law.

More Brandeis:

Louis Brandeis

Those Who Won Our Independence

More Security State:

Surveillance Cameras

Bridling the Surveillance State

More International Law:

Der Hauptanklagevertreter

Robert Jackson Opens the Nuremberg Tribunal

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