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

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.

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.

The New York Times - 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.

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