by
Gary Hunt, Outpost of Freedom
"If the Court please, I wish to use the words of Justice Brandeis dissenting in Olmstead to speak for me. He wrote, 'Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.'
"That's all I have.
Timothy McVeigh, August 14, 1997 — just prior to being officially sentenced to death
For weeks, now, I had been conjecturing, along with nearly everyone else in the country, what words would come forth on Timothy McVeigh's day of sentencing. He had declared that he would make a statement — his first since he was accused of bombing the Murrah federal building in Oklahoma City on April 19, 1995 — and the word had spread, as had the anticipation. Many had expected a confession, remorse or denial of complicity. Very few, if any, expected so much acumen to come from McVeigh and just 47 words.
To fully understand the depth of McVeigh's statement, it might be best to understand exactly what the Olmstead case was about. "Olmstead was the leading conspirator and the general manager of [a] business" (Olmstead v. United States, 277 US 438) which employed "not less than 50 persons," including executives, salesmen, deliverymen, dispatchers and an attorney. The business was "unlawfully possessing, transporting and importing intoxicating liquors,.." The crime, then, was a violation of the statutes enacted under authority of the 18th Amendment to the Constitution (Prohibition) which was ratified in 1919.
The general argument of the court was that although postal mail, once sealed, was prohibited from intrusion by government officers seeking evidence, a telephone line was not, and, although Washington state law made it a misdemeanor to tap a phone, the evidence obtained thereby was admissible. The court, in its opinion, also made clear that the government need not be ethical in its acquiring of evidence.
Brandeis, in his dissenting opinion, stated that "Tapping of one man's telephone line involves the tapping of the telephone line of every other person whom he may call, or who may call him." He continued, [a]s a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping."
Although the comparison of any evidence gathering in the McVeigh case is inconsequential to the whole, the seizure of the papers in McVeigh's car, his home, the homes of his friends and relatives, and the intimidation of his sister and the Fortiers falls well within the domain of what was once prohibited under the Constitution — but which has become an everyday occurrence under the federal government's agenda.
I'm not so sure that this was all that Timothy McVeigh had to say when he uttered those few words — much to the chagrin of many. The implications of wrongdoing by government, and usurpation of authority not granted by the Constitution through the process of judicial review is much broader in its ramifications than this case, by itself, demonstrates. Brandeis does discuss other aspects of the Constitution which have changed by their nature do to the nature of change in the society, especially from a technological point of view. How, for example, could the Founders have protected the right to communicate (theirs was limited to post and courier) over telephone lines when electricity hadn't been discovered. How, too, could they address the right to communicate freely on the Internet when just a few years ago the concept of this medium of communication was beyond the comprehension of most people. Brandeis states, with regard to the Supreme Court's review of actions of the Congress, that "this court has repeatedly sustained the exercise of power by Congress, under various clauses of [the Constitution], over objects of which the fathers could not have dreamed."
"Protection against such invasion of 'the sanctities of a man's home and the privacies of life' was provided for in the Fourth and Fifth Amendments by specific language." He continues, "[b]ut 'time works changes, brings into existence new conditions and purposes.' Subtler and more far-reaching means of invading privacy have become available to the government. Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what was whispered in the closet."
In appraising the consequences of the government's overzealous tendencies to secure convictions, Brandeis discussed the actions of the government officials, and the government, itself. "When these unlawful acts [wire tapping in violation of Washington state laws] were committed they were crimes only of the officers individually. The government was innocent, in legal contemplation; for no federal official is authorized to commit a crime on its behalf. When the government, having full knowledge, sought through the Department of Justice, to avail itself of the fruits of these acts in order to accomplish its own ends, it assumed moral responsibility for the officers' crimes… and if this court should permit the government, by means of its officers' crimes, to effect its purpose of punishing the defendants, there would seem to be present the elements of ratification [of the crime committed by government officials, individually]. If so, the government itself would become a lawbreaker."
Brandeis' entire concluding paragraph is probably warranted. What McVeigh left out speaks volumes. From the record:
"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. Against that pernicious doctrine this court should resolutely set its face."
The act of anarchy that McVeigh committed was an act induced by observation of the governments violation of numerous aspects of the Constitution. In Texas, for example, §9.31 (C) of the Texas Penal Code states:
"The use of force to resist an arrest or search is justified:
"(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
"(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.
There can be little doubt, regardless of your perception of what occurred in Waco, that the BATF and the FBI did create a situation in which the retaliatory action by the Davidians was fully justified, at least under Texas law. Other events in our recent history can lead us to conclude that the governments efforts at crime control have only generated a scenario where the government may commit crimes, with impunity, and convict others who have not committed a crime of the mere act of possibly contemplating a crime. A very far cry from what Brandeis spoke to some seventy years ago.
Some will suggest that I am attempting to justify McVeigh's deeds. On the contrary, I have only attempted to explain them.
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