Every schoolchild, moviegoer, or TV cop show devotee knows the opening words of the Miranda warning - "You have the right to remain silent" - which state a fundamental legal privilege, guaranteed by the Bill of Rights. But as the esteemed constitutional law expert Alan M. Dershowitz points out in his provocative book, "Is There a Right to Remain Silent?," a recent decision by the Supreme Court suggests that Americans may not in fact possess this right, even if police officers are constitutionally obliged to tell them they do. Because while it is true that the use of self-incriminating testimony obtained by coercion is not permitted as evidence against the defendant in a criminal trial, the Court has found that as long as the information gathered by coercive means - which might even include methods that could be labeled "torture" - is not used against the accused in a criminal trial, such coercive interrogation is constitutionally permissible.
This radical reinterpretation of a fundamental constitutional right could forever alter the legal system, especially in the wake of 9/11, as certain law enforcement agencies in the United States have moved from a "reactive state," focused on punishing individuals who have committed crimes, to a "preventative state," focused primarily on gathering information to enable the government to anticipate and prevent terrorism (Witness the recent controversy over waterboarding.) Dershowitz likens the country's present period of transition, hastened by the new reality of terrorism, to other historical events (the abolishment of slavery in America, the Holocaust), that precipitated a dramatic rethinking of human rights. As such, it is important that this new reality be addressed on a constitutional level.
In reality, Chavez v. Martinez - the 2003 Supreme Court decision at issue - did not involve a threat of terrorism, but was a seemingly more mundane case wherein the suspect in a police shooting was interrogated by an arresting officer while in severe, life-threatening pain, awaiting treatment at a hospital. The five majority justices of the Supreme Court found that Martinez's privilege against self-incrimination had not been violated by police officers who had coerced him into making statements that were self-incriminating because the statements were never used against him in a criminal case. Alternately, the dissent of three justices - Stevens, Kennedy, and Ginsburg - concluded that the privilege could be violated whenever "torture or its close equivalents are brought to bear" on a person, regardless of whether the fruits of the interrogation are ultimately admitted against him in a criminal case.
With his unrivaled understanding of constitutional law, Dershowitz examines both sides of the decision. Bringing to bear both the original intent of the framers of the Constitution, as well as its historical antecedents and the legal precedents set over the last 200 years, he uses the Martinez case as a window into broader issues relating to the history and policies underlying the privilege of self-incrimination, as well as into the trend toward turning what many citizens have long regarded as broad human rights into narrow criminal rights. Returning to the source, he argues that ours is an "accidental Constitution," written in its time, for its time. "The frame of reference for our Constitution was late eighteenth-century, post-revolutionary America, a nation of slavery, male domination, Protestant sensibilities, and economic and other qualifications for voting, jury service, and office holding," writes Dershowitz. "Its frame of reference also included a criminal justice system that was relatively primitive, even by British standards. Trained lawyers were few; police, as we know them today, were nonexistent. It is remarkable that the Constitution-laden with regional and other compromises; hastily written; filled with drafting errors; combining time-bound, even anachronistic, provisions with broad, symbolic, and (arguably) aspirational words - has outlived all others, and with so few amendments."
In a world dramatically and abruptly changed by the events of 9/11, the privilege against self-incrimination, as interpreted by the Court, now has nothing to say about coercive interrogation, even when it entails torturous methods. Hence, for those bound to uphold fundamental human rights, constitutional law now contains a black hole, Dershowitz says, and if the Court's interpretation is to become the accepted one, the gap needs to be closed by making it plain that Americans do not have an absolute right to remain silent. But it must be made equally clear that our government does not have the absolute power to use all manner of coercive interrogation, even for preventive purposes.
Dershowitz ends with a challenge. "We need to develop a jurisprudence for the emerging preventive state," he asserts. "This jurisprudence should contain both substantive and procedural rules governing all actions taken by government officials to prevent harmful conduct, such as terrorism. Black holes in the law are anathema to democracy, accountability, human rights, and the rule of law." As the latest volume in Oxford's acclaimed Inalienable Rights series, "Is There a Right to Remain Silent?" is a timely, incisive plea for the guarantee of constitutional freedoms for every American, even in our troubled times.