Saturday, November 13, 2010

Happy 154th Louis Brandeis - No Cake for You, Obama Administration

At the "Spaghetti Junction" confluence of Interstates 64, 65 and 71 along the Ohio River at Louisville, several large brick buildings sport huge portraits of famous Louisvillians on the side: Mohammed Ali, Paul Hornung, Tori Murden-McClure ... and Justice Louis Brandeis.

Peterr at Firedoglake:

From 1916 to 1939, Louis Brandeis sat on the United States Supreme Court, and was one of the most powerful voices for freedom of speech and the right to privacy ever to sit on the Court. Today would have been his 154th birthday, and I have no doubts that he would be appalled at some of what is being done by the Department of Justice today, in the name of the United States of America. Indeed, Brandeis seems to have anticipated the confluence of torture, warrantless wiretapping, and a federal government that seeks to defend its conduct merely by shouting “it’s necessary!”


In a powerful and prescient dissent, Brandeis wrote:


Moreover, “in the application of a constitution, our contemplation cannot be only of what has, been but of what may be.” The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.

Justice Holmes concurred with Brandeis, adding a few brief comments of his own:

Therefore we must consider the two objects of desire, both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be detected, and, to that end, that all available evidence should be used. It also is desirable that the Government should not itself foster and pay for other crime, when they are the means by which the evidence is to be obtained. . . . We have to choose, and, for my part, I think it a less evil that some criminals should escape than that the Government should play an ignoble part.

It took 39 years, but Brandeis and Holmes were vindicated in their dissents when Katz v. United States overturned Olmstead in a 7-1 ruling.

Wiretapping and torture, all in the same dissent.

That can’t be a good combination for Attorney General Eric Holder to contemplate. He’s dealing with these same issues today, in a series of cases working their way forward, like al-Haramain, the GITMO habeas corpus cases, and others.

It's a continuing wonder to me that Justice Brandeis does not rise up out of his grave to strike corporate shill John Roberts dead.

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