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Is There a Right to Remain Silent?: Coercive Interrogation and the Fifth Amendment After 9/11 (Inalienable Rights), by Alan M. Dershowitz
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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.
- Sales Rank: #1565344 in Books
- Published on: 2008-05-06
- Original language: English
- Number of items: 1
- Dimensions: 5.80" h x 1.00" w x 8.30" l, .89 pounds
- Binding: Hardcover
- 232 pages
From 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.
Review
"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
About 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.
Most helpful customer reviews
3 of 3 people found the following review helpful.
I Disagree
By Kindle Customer
This is an extremely well written book, which makes a brave attempt to, basically, say that there are situations when "the right to remain silent" as used in Miranda warnings does not apply.
This book I think reflects opinions expressed by some lawyers during the post 9/11 crisis when "terrorists" were deemed to not have basic rights under International Law, Military Law and the US Constitutional doctrines that define the special nature of our country: regarding human beings.
Now that some time has passed I think lawyers today still follow the basic tenets of our government, including the "right to remain silent" which is part of what makes our government great. Unlike the Middle Ages in Europe and certain barbaric countries today, we do not believe in torture.
It was a unique and challenging read, like debating the very resourceful and brilliant Professor Dershowitz. One can disagree with him, but still marvel at his abilities, legal scholarship and willingness to take on such a difficult subject, like a Devil's Advocate would do in the past.
1 of 1 people found the following review helpful.
Timely, Important, and Relevant to our Current Society
By Phil (not) in Mågnoliá
Since 9/11, we have experienced a shift in the view of American society with respect to the need for law enforcement to act pre-emptively with respect to potential terrorist attacks. The horrifying scene when the twin towers fell has caused many to feel that harsher measures may be warranted in extracting information that can be used to prevent such tragedies in the future.
Alan Dershowitz describes how the Fifth Amendment ("you have the right to remain silent", as memorialized in the familiar Miranda warnings) was originally included into the Bill of Rights, and how this Constitutional Right has evolved since that time. He explains how recent Supreme Court decisions have provided openings to allow more coercive interrogations that could even be considered as torture, if the fruits of such interrogations are not used as evidence in a criminal trial against the person who was so interrogated.
This is thought provoking material, and it is written in a way that is accessible and understandable to non-lawyers (like myself, for example), with some effort. It is not light reading but it is compelling reading.
My exposure to this book came as the result of one of those "recommended for you" features that Amazon so effectively provides, and I'm glad that I purchased it. In fact, I've purchased several extra copies to give to others who I hope will also take the time to read this and think about the issues that are presented.
1 of 1 people found the following review helpful.
This really seemed like it was meant to be another book
By Milo Minderbinder
Wow, this book totally changed my mind, and I understand the Martinez case so much more. I am not a Harvard Law professor, but the logic and argumentation are so weak in this opus, which doesn't really get at the core issue all that well, that it left me siding with the straw man arguments being created. This really seemed like it was meant to be another book, and he had this lying around. The treatment of the topic was also superficial in every way--there is no real historical context given, nor is there anything from common/case law that is presented to support Dershowitz's political/philosophical view.
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