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

by Alan M. Dershowitz

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.

Genres: Law, Nonfiction

232 pages, Hardcover

First published January 1, 2008

About the author

Alan Morton Dershowitz is an American lawyer, jurist, and political commentator. He is the Felix Frankfurter Professor of Law at Harvard Law School. He is known for his career as an attorney in several high-profile law cases and commentary on the Arab-Israeli conflict.

He has spent most of his career at Harvard, where, at the age of 28, he became the youngest full professor in its history, until Noam Elkies took the record. Dershowitz still holds the record as the youngest person to become a professor of law there.

As a criminal appellate lawyer, Dershowitz has won thirteen out of the fifteen murder and attempted murder cases he has handled. He successfully argued to overturn the conviction of Claus von Bülow for the attempted murder of Bülow's wife, Sunny. Dershowitz was the appellate advisor for the defense in the criminal trial of O.J. Simpson for the murder of his ex-wife Nicole Simpson and her friend Ronald Goldman.

Reviews

[Shawn · Rating 3 out of 5]

This is basically a 176 page law review article arguing that the Supreme Court wrongly decided Chavez v. Martinez, 538 U.S. 760 (2003) and, in doing so, rejected 100 years of history. Although repetitive in parts, overall this book is well-argued and makes good suggestions on the true historical application of the self-incrimination clause of the 5th Amendment. What makes this book important, however, is the advanced use of "non-torture" during interrogations. While the book references this in parts, it really did not go into the details I was looking for and connections I was waiting to be made. Overall, this is a 3/5 because I would have liked to have seen more application on the broader rights against self-incrimination rather than turning back to the Martinez case. I would recommend this book for anyone looking to get into criminal or civil rights law.

[Coral · Rating 4 out of 5]

Yes, the writing is rather dry - but isn't that to be expected? If you're willing to stick it out despite the fact that it's more scholarly than your average book, it's worth it. The overview of the 5th throughout history was interesting, and I couldn't help but smile in the sections where Dershowitz tore into Scalia and Thomas. Priceless.

[Emily · Rating 1 out of 5]

Terrible. You'd be better off picking the brain of any law student with a semester of Criminal Procedure. I'm reviewing this book for *Jewish Currents*; otherwise I wouldn't even be touching the stuff.

[Erin · Rating 1 out of 5]

Maybe interesting to a law student, but I found it torturous and repetitive.

[Hope · Rating 4 out of 5]

Fascinating analysis of the history of the right to remain silent, and it's erosion in the current era of the preventative state. The historical section was especially interesting.

[Matthew · Rating 3 out of 5]

A good, but very academic read. An important topic that would have been fun to read in a classroom setting.