In the new book “Is There a Right to Remain Silent,” Harvard law Prof. Alan Dershowitz 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?, says a New York Times review. The simple answer, according to the Supreme Court, is no. In Chavez v. Martinez, the justices ruled in 2003 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. It's not necessarily unconstitutional for the U.S. government to torture prisoners.
The Supreme Court case involved a man who was shot several times on a California street during an altercation with the police. On his way to the hospital and in the emergency room, an officer questioned Martinez about what had happened. He eventually said he had taken a gun from one of the officers and pointed it at them. Supreme Court Justice Clarence 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 attacks the 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. The book, says the Times, “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.”