Is There a Right to Remain Silent?: Coercive Interrogation and the Fifth Amendment After 9/11

Overview

The right to remain silent, guaranteed by the famed Fifth Amendment case, Miranda v. Arizona, is perhaps one of the most easily recognized and oft-quoted constitutional rights in American culture. Yet despite its ubiquity, there is widespread misunderstanding about the right and the protections promised under the Fifth Amendment.

In Is There a Right to Remain Silent? renowned legal scholar and bestselling author Alan Dershowitz reveals precisely why our Fifth Amendment rights ...

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Is There a Right to Remain Silent?: Coercive Interrogation and the Fifth Amendment After 9/11

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Overview

The right to remain silent, guaranteed by the famed Fifth Amendment case, Miranda v. Arizona, is perhaps one of the most easily recognized and oft-quoted constitutional rights in American culture. Yet despite its ubiquity, there is widespread misunderstanding about the right and the protections promised under the Fifth Amendment.

In Is There a Right to Remain Silent? renowned legal scholar and bestselling author Alan Dershowitz reveals precisely why our Fifth Amendment rights matter and how they are being reshaped, limited, and in some cases revoked in the wake of 9/11. As security concerns have heightened, law enforcement has increasingly turned its attention from punishing to preventing crime. Dershowitz argues that recent Supreme Court decisions have opened the door to coercive interrogations—even when they amount to torture—if they are undertaken to prevent a crime, especially a terrorist attack, and so long as the fruits of such interrogations are not introduced into evidence at the criminal trial of the coerced person. In effect, the court has given a green light to all preventive interrogation methods. By deftly tracing the evolution of the Fifth Amendment from its inception in the Bill of Rights to the present day, where national security is the nation's first priority, Dershowitz puts forward a bold reinterpretation of the Fifth Amendment for the post-9/11 world. As the world we live in changes from a "deterrent state" to the heightened vigilance of today's "preventative state," our construction, he argues, must also change. We must develop a jurisprudence that will contain both substantive and procedural rules for all actions taken by government officials in order to prevent harmful conduct-including terrorism.

Timely, provocative, and incisively written, Is There a Right to Remain Silent? presents an absorbing look at one of our most essential constitutional rights at one of the most critical moments in recent American history.

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Editorial Reviews

From the Publisher
"Is There a Right to Remain Silent? serves as a kind of primer in analyzing and interpreting constitutional law... 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 has worked hard to make Is There a Right to Remain Silent? accessible to nonlawyers."—The New York Times Book Review

"When he speaks about criminal law and procedures of justice, subjects he has spent his career on, we should listen, particularly these days... what is most provocative is Dershowitz's conclusion, where he broadens his discussion to describe what he sees as a post-9/11 change in our justice system—a change so profound that it might be called a paradigm shift in criminal law."—The New York Times

"Provocative and erudite... A measured but urgent call to fill the legal "black hole" that the narrow Chavez decision creates regarding a right we all take for granted."—Publishers Weekly

"With his characteristic insightfulness and adroitness, Alan Dershowitz launches a powerful attack on the Supreme Court's position that Americans don't really have a right to remain silent—merely a right to exclude their compelled statements and any evidence derived therefrom at their subsequent criminal trials (if they ever have one)."—Yale Kamisar, Professor of Law, University of San Diego and Professor Emeritus of Law, University of Michigan

"This is a lucid, thought-provoking and exceptionally well-balanced analysis of the Fifth Amendment and, beyond that, the complexities of constitutional interpretation in general. Dershowitz lays bare the weakness and hypocrisy of 'original intent' arguments and the difficult choices we must all confront in making sense of the Fifth Amendment in the face of challenges that the Framers of our Constitution scarcely imagined."—Stephen Schulhofer, Robert B. McKay Professor of Law, New York University School of Law

"Alan Dershowitz shines a welcome bright light on a black hole in our constitutional landscape—the laws governing 'preventive' coercive interrogation. Few issues have been more controversial in the post-9/11 era, and this book succinctly and clearly reveals the failure of our constitutional jurisprudence to address it adequately. It should be read by all who care about torture and its regulation in America."—David Cole, Professor of Law, Georgetown University

"Carefully researched, strongly argued, thoughtfully reasoned, and extraordinarily well-crafted, Is There a Right to Remain Silent? examines a question vital to a free society, and far more difficult to answer than it might appear at first glance."—Susan R. Estrich, Robert Kingsley Professor of Law and Political Science, University of Southern California Gould School of Law

Jonathan Mahler
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.
—The New York Times
Publishers Weekly

The prolific and opinionated Dershowitz (Rights from Wrongs), public personality and Harvard law professor, is provocative and erudite in this treatise on the Fifth Amendment right to remain silent, which in his view may become a victim of the war on terror as America slides toward preventing violent acts rather than deterring them with threat of punishment. Replete with trademark Dershowitz flourishes, quotes from a wide range of sources including Jewish law, Emily Dickinson and his own college term paper, this is a serious examination of the constitutional ramifications of an unheralded 2003 Supreme Court decision, Chavez v. Martinez,that could allow the coercion of testimony from interrogation subjects as long as the information isn't used against them in criminal prosecutions. Dershowitz is best at exploring the implications of this decision. His analysis is sometimes technical on the origin of the right to remain silent as well as its application to suspects, defendants and witnesses. Dershowitz believes current law is dangerously unsettled and, as such, an "anathema to democracy"; his conclusion is a measured but urgent call to fill the legal "black hole" that the narrow Chavez decision creates regarding a right we all take for granted. (May)

Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved.
School Library Journal

Dershowitz (Harvard Law Sch.; America on Trial) here examines the status of our Fifth Amendment rights protecting us from self-incrimination in the wake of 9/11 and the war on terror. Using the 2003 Supreme Court decision Chavezv. Martinezas a springboard, he looks at how the Court has recently interpreted the amendment. Chavezv. Martinezoriginated as a civil case in which Martinez, a suspect, sued Benjamin Chavez, a police officer, for interrogation techniques that Martinez said violated his right to remain silent. The Court ruled for Chavez, saying in part that Martinez's right to remain silent had not been violated because the incriminating statements obtained by interrogation were not used against him in court, a decision that could imply that various types of questioning are now allowed under some circumstances. After examining the Court's logic in its decision, Dershowitz outlines the history of the right to remain silent, finding its roots in ancient Jewish law and later in Magna Carta. In the closing chapters, he argues that this right is being undermined by our transformation from a "deterrent" state to a "preventative" one and concludes that our justice system must be adapted for the preventative state. An excellent book; best suited for academic libraries, but public libraries will want to consider it because of the author's popularity.-Becky Kennedy, Atlanta-Fulton P.L., GA

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Product Details

  • ISBN-13: 9780195307795
  • Publisher: Oxford University Press, USA
  • Publication date: 5/6/2008
  • Series: Inalienable Rights Series
  • Pages: 232
  • Product dimensions: 8.30 (w) x 5.80 (h) x 1.00 (d)

Meet the Author

Alan M. Dershowitz is currently the Felix Frankfurter Professor of Law at the Harvard Law School. He appears frequently in the mainstream media as a commentator and analyst on a variety of issues, including national security, torture, civil liberties, and the Middle East peace process. He is the author of Rights From Wrongs: A Secular Theory of the Origins of Rights, America on Trial: Inside the Legal Battles That Transformed Our Nation, Shouting Fire, and Preemption.

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Table of Contents

Series Editor's Note     vii
Introduction     xi
What Is the Right against Self-Incrimination?     3
The Supreme Court's Recent Decision     11
The Limits of Textual Analysis in Constitutional Interpretation     25
The Limits of Precedent: Which Way Does the "Immunity" Analogy Cut?     40
The Limits of Historical Inquiry     54
The Privilege over Time     93
The Relevance of Constitutional Policies Underlying the Right     117
A Matter of Interpretation     126
Conclusion: The Case for a Vibrant Privilege in the Preventive State     137
Notes     177
Index     205

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