IS THERE A RIGHT TO REMAIN SILENT? Coercive Interrogation and the Fifth Amendment After 9/11

September 14, 2008
Torture and Taking the Fifth
By JONATHAN MAHLER
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IS THERE A RIGHT TO REMAIN SILENT?

Coercive Interrogation and the Fifth Amendment After 9/11

By Alan M. Dershowitz

212 pp. Oxford University Press. $19.95

This admittedly slender volume is the third — yes, third — book by Alan M. Dershowitz to appear in the past year. Between his graphomania, his penchant for high-profile cases and the frequency with which he can be seen on cable television news programs, it’s easy to forget that Dershowitz is a serious scholar of constitutional law. In “Is There a Right to Remain Silent?” he tackles one of the trickiest legal questions of post-9/11 America: does the Fifth Amendment’s guarantee of that right prohibit law-enforcement officials from torturing an individual to prevent a future crime, like an act of terrorism?

The simple answer, at least according to the Supreme Court, is no. In Chavez v. Martinez, a 2003 police coercion case, the justices ruled that an individual’s right to remain silent is violated only if the information is then used against that person in a criminal case. The mere fact that he or she has been coerced into talking does not, in itself, constitute a breach of the Fifth Amendment. To put a finer point on it, it’s not necessarily unconstitutional for the United States government to torture prisoners.

Dershowitz has weighed in on the subject of coercive interrogation before. In the aftermath of 9/11, he wrote a provocative op-ed article advocating the use of government-issued “torture warrants” that gave many of his fellow civil libertarians fits. They will doubtless be much happier with Dershowitz’s take on the Fifth Amendment as well as with his rough treatment of the court’s findings in Chavez.

The facts of the case are straightforward enough. The petitioner, Oliverio Martinez, was shot several times on a street in Southern California during an altercation with the police. On his way to the hospital and in the emergency room, another officer questioned Martinez about what had happened. At first, Martinez limited his answers to “I am choking” and “I am dying” and, at one point, “I am not telling you anything until they treat me.” But the officer continued to question him, and Martinez eventually said he had taken a gun from one of the officers and pointed it at them.

Left blind and partially paralyzed by the episode, Martinez sued the interrogating officer, claiming that the policeman had violated his Fifth Amendment rights. The Supreme Court issued six different opinions in the case, but Dershowitz focuses largely on Justice Clarence Thomas’s, which carried the day. Even though his colleague Justice John Paul Stevens had described Martinez’s treatment as “the functional equivalent of . . . torturous methods,” Thomas concluded that Martinez’s constitutional privilege against self-incrimination had not been violated because nothing he said was used against him in a criminal trial.

Dershowitz acknowledges that the precise language of the amendment — “No person shall be . . . compelled in any criminal case to be a witness against himself” — doesn’t explicitly create a right to remain silent. But his generosity toward Thomas ends there. He attacks the justice’s opinion as narrow and overly literal, and accuses him of ignoring both the historical record and inconvenient case law to arrive at his desired outcome.

“Is There a Right to Remain Silent?” serves as a kind of primer in analyzing and interpreting constitutional law, the murky business of divining the framers’ intentions and of reconciling seemingly contradictory Supreme Court opinions. Dershowitz traces the origins of the Fifth Amendment’s protection against self-incrimination, which (arguably) dates to the church’s use of inquisitorial oaths against political and religious dissidents in 13th-century England; runs through some of the relevant precedents, including the treason trial of Aaron Burr; and examines how our understanding of the Fifth Amendment has evolved since its passage.

All of this analysis is set against the familiar backdrop that frames any serious discussion of the Constitution: should we treat it as a “living” text designed to accommodate historical and societal change, or must we limit our reading to the actual words on the page and the original intent of their authors? Like many liberals, Dershowitz is wary of relying too heavily on our necessarily speculative efforts to understand precisely what our forefathers envisioned. Nevertheless, he makes a strong argument that the framers were, if nothing else, aware of the need to prevent coercive interrogation — even if the means by which they chose to prevent it was prohibiting the use of coerced testimony at criminal trials.

Reading this book, one is reminded why Dershowitz is one of the very few American law professors whose work has crossed over into the mainstream. He wears his erudition lightly. He has worked hard to make “Is There a Right to Remain Silent?” accessible to nonlawyers, peppering it with references to Lewis Carroll, Stephen Jay Gould, Maimonides and Jerry Seinfeld. Despite his best efforts, though, this sort of detailed legal analysis inevitably gets technical. Those not already steeped in the issue of self-incrimination are likely to get bogged down.

It’s worth the effort to push ahead, though. Dershowitz calls the Chavez case a “bellwether” for a much broader shift in law enforcement after 9/11, the increasing focus on preventing future criminal acts rather than simply punishing the perpetrators of them. The emergence of this so-called preventive state will continue to present new and difficult questions concerning the rights of criminal defendants. Americans, he persuasively establishes, can’t afford not to participate in the debates over how these questions are answered.

Jonathan Mahler, a contributing writer for The Times Magazine, is the author, most recently, of “The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power.”


Copyright 2008 The New York Times Company