"Is There A Right to Remain Silent?", by Alan M. Dershowitz

reviewed by Judah Labovitz, attorney and JSPAN Board member I am not a fan of Alan Dershowitz, and therefore approached reviewing his latest book, “IS THERE A RIGHT TO REMAIN SILENT? Coercive Interrogation and the Fifth Amendment After 9/11” with some skepticism, particularly since it is his third book in a year. I was pleasantly surprised, therefore, to find myself reading, for most of the book, what is essentially an extended (176 pages) law review article, followed by copious endnotes. And as is often true of Supreme Court opinions (one of which is the subject of the book) and law review articles, some of those endnotes are as intriguing as the text itself. However for those very reasons, those not steeped in constitutional law and particularly civil liberties law under the Bill of Rights may find this book a hard read, although admittedly a worthwhile one. The book deals with two intertwined topics, whether in light of the Supreme Court’s 2003 decision in Chavez v. Martinez, there is a protectable right under the Fifth Amendment’s self incrimination clause to be free of abusive, even if not tortuous, interrogation, and how Supreme Court Justices do, and how Professor Dershowitz believes they should, decide constitutional questions. For these purposes, abusive is best defined by the description of the Court of Appeals of what occurred to Mr. Martinez. “Martinez alleges that Chavez brutally and incessantly questioned him, after he had been shot in the face, back and leg and would go on to suffer blindness and partial paralysis, and interfered with his medical treatment while he was ‘screaming in pain … and going in and out of consciousness.’ Chavez allegedly continued this ‘interrogation’ over Martinez’s pleas for him to stop so that he could receive treatment.” Although there was no single opinion of the Court, a majority of the Justices concluded that there was no such right under the self incrimination provision and that the only remedy provided by the self incrimination provision of the Amendment is to have any statement obtained by those means excluded at the person’s trial, if there is one, which there was not as to Mr. Martinez. However, a majority also left open for the lower court to decide whether there was a right to sue civilly for damages as a result of such an interrogation under the due process clause of the Fourteenth Amendment. (The Court of Appeals for the Ninth Circuit subsequently determined that there was such a cause of action because the alleged conduct was “shocking to the conscience” and interfered with rights “implicit in the concept of ordered liberty”, and the Supreme Court declined to review that decision.) In critiquing the Martinez decision (and criticizing quite sharply the plurality opinion of Justice Thomas), Professor Dershowitz proceeds along two paths. First, he contrasts the traditional role of the self incrimination clause in which interrogation is used to solve already committed crimes and prosecute perpetrators, with the post 9/11 world of what Dershowitz refers to as the “preventive state”, in which interrogation is used for the detection and prevention of crime before it occurs, particularly acts of terrorism. In the latter case, the so-called “ticking bomb” scenario, there may often be no trial, and therefore under Martinez, there would be no prohibition even on torture, unless subject to some due process restraint, a restraint that is far from clear, notwithstanding the Ninth Circuit’s post Supreme Court decision. It is entirely likely that the current composition of the Court, in which Justice Alito has replaced Justice O’Connor, would have reversed the Ninth Circuit’s due process decision, consistent with the views of Justices Thomas and Scalia either that there is no substantive, as opposed to procedural due process right, or, as Justice Thomas concluded, the questioning of Martinez was not egregious or conscious shocking. The second path is a detailed analysis of varying approaches to interpretation of the Bill of Rights, including a stinging critique of Justices such as Thomas and Scalia who claim to be strict constructionists, applying the original intent of the framers, and who believe that the framers intended issues not specifically addressed to be resolved, not through the courts, but through the democratic process of the legislature. Addressing the self incrimination provision, Professor Dershowitz demonstrates quite convincingly the internal contradictions in the language of the provision itself, that historians cannot divine any consistent intent of the framers, and that the framers, who limited the electorate to white land owning males, and provided for indirect election of the President and members of the Senate, were hardly advocates of democratic resolution of issues. One of the more interesting insights in that analysis is that the men who drafted the Constitution were familiar with the English common law courts in which the law evolves with judicial interpretation, and in fact incorporated into the self incrimination clause what was essentially a common law evidentiary privilege. Unfortunately, Professor Dershowitz’s “Conclusion” does not live up to the promise of the rest of the book. He posits, quite persuasively, that the Martinez case has left open a serious hole in the law as to what, if any, constraints there are in a post 9/11 preventive state on the use of torture. Hequite eloquently states that: “If rights come from wrongs, as I have argued, then the right of all persons to be free of extreme coercive interrogation, especially those entailing torturous methods should be assured under our Constitution.” But then the book ends with two very disconcerting statements. First, “The gap should be closed by making it plain that Americans do not have an absolute right to remain silent and by making equally clear that our government does not have the absolute power to use all manner of coercive interrogation, even for preventive purposes.” (emphasis in the original). Second, “The privilege against self-incrimination should be construed to impose restrictions on at least some means of coercion, even if the resulting information is never used against a defendant at a criminal trial.” (emphasis in the original). At a time when the Attorney General refuses to state that water boarding is a form of torture, we have a right to expect something more explicit from a scholar who not so many years ago suggested in an op-ed piece the use of court or Presidential-issued torture warrants to deal with the “ticking bomb” case.