See, this is the problem with budging on absolute protections of the Constitution. Once you start saying “everyone has the right, except…”, the “except” becomes the target of rapid bombardment to see how far that hole will go. Once you give an inch, law professors like Akhil Amar and Eric Posner show up to argue how that inch really is a mile, because it’s law and you’re terrible at math.
“Immediate danger” from the public safety exception becomes “civilized compulsory interrogations”. I can’t even type those words without images of the German secret police swirling through my head.
Before we get into the nitty-gritty of these proposals, let’s start where it’s always the simplest, at the beginning. The Fifth Amendment to the United States Constitution provides:
No person shall be compelled in any criminal case to be a witness against himself
Plainly interpreted, this means that no can be required/forced/compelled to answer questions by law enforcement that would show that the person being question was involved in/guilty of a crime. In Miranda, it’s been popularized as “the right to remain silent”, but legally, it’s “the privilege against self-incrimination”. The punishment for violating one’s Constitutional Right is that the Government cannot then use that information or evidence obtained because of that information to then turn around and convict you.
But what if they have no interest in prosecuting you? What if you’re nothing but a small fish and they want someone else? What if they just want the information you have and are willing to forgo prosecuting you in exchange?
Some are suggesting just that, and more. So first Amar, who proposes the following:
The best solution would simply be for the Supreme Court to change course and allow the admission of all evidence gathered as a result of a civilized compulsory interrogation.
Under current law, a suspect can be forced to hand over a blood sample or a fingerprint, because these items are reliable physical evidence, and they don’t violate Fifth Amendment, because blood and prints are not “witnesses,” strictly speaking, and because they are reliable in a way that pure words are not. The same logic holds for admitting all fruit and leads generated by compelled interrogation.
But even if the court won’t go that far, it should hold that in compelled interrogations involving serious and ongoing threats to public safety, evidence and leads obtained by interrogation of the suspect should always be admissible.
Let’s bring coffee, donuts, and yes, lawyers, into the interrogation room. But the law should also require the suspect to answer all questions under pain of contempt—meaning he can be jailed if he refuses—and under penalty of perjury.
His lawyer should understand that her job is not to aid the suspect in lying or stonewalling. Suspects will of course be tempted to lie in some situations. But even lies can often provide cues and clues to trained investigators, and interrogators should also be able to give lie-detector tests with the oversight of a judge.
This is the right balance for public safety and a defendant’s rights—and the Fifth Amendment, properly understood, allows it.
Did you get that? Amar is proposing that any time there is “ongoing threat to public safety”, which he neglects to define, the police get to question you, no limits, no safeguards, no restrictions. They ask you questions and you must answer. Because only guilty people are ever questioned and only guilty people are ever apprehended and Amar is lawprof who’s never set foot in a courtroom representing an actual defendant whose Life and Liberty are on the line.
I’m sorry; I didn’t warn you before the last blockquote. I won’t be so foolish as to ignore the warning now. Warning: this next blockquote will make you want to throw things at your computer screen or perhaps mutilate a soft toy. Please resist the urge to do either, in the name of decency.
Amar’s companion/counterpart/coincidental comrade, Eric Posner offers the following suggestions:
There is a better approach. Imagine a law that grants police broad but temporary detention and interrogation powers in the aftermath of a mass killing in a public location—in other words, any potentially terrorist shooting or bombing.
The police must first seek permission from a judge who will determine whether the act of violence satisfies the criteria, spelled out in the law, about the magnitude and circumstances of the attack.
The police may then detain for one week, say, those whom they reasonably believe responsible for the attack, and interrogate them without informing them of their Miranda rights. Perhaps, the term can be renewed for good cause.
The government would provide these detainees with lawyers who would not be allowed to meet with them, but could appeal the initial judicial order, and examine and challenge before a judge the government’s evidence that the detainee is responsible for the attack.
The judge would have the power to revoke the detention power if it is no longer necessary, and to order the release of the detainees if they cannot be tied to the attack.
Statements obtained from the detainee could be used against him in trial, unless they were obtained through coercion, intimidation, or deception. Conviction would require corroborating evidence.
“Ve vill ask ze qvestions and you vill answer ze qvestions. Do we understand each other, hmm?” he might as well have said. I can imagine, Mr? Prof? Posner a law where a terrorist attack is so broadly defined that it might well cover any allegation of any criminal activity. I can imagine a law where you have simultaneously rendered useless both the Fifth and Sixth Amendments to the United States Constitution (remember, there is that Sixth Amendment right to counsel). I can imagine an “age of terror” as you put it, in which who is a terrorist is dependent entirely on the whims of those who wield the power to make that decision. As Sensei Mark Bennett puts it:
[W]hen the government talks about “terrorists,” they’re talking about the people who they can claim are terrorists. And when they are talking about the people who they can claim are terrorists, they are talking about you and me.
And you and me are people they may decide they don’t like anymore.
What they’re proposing, when it comes down to it, is to grant the entire law enforcement community and the military industrial complex in America the authority to detain any person in the United States, regardless of their citizenship, for a period of time up to a week or longer, for whom there is a hunch – a suspicion? it’s not really clear – that there is involvement in “terrorist” activity. During that detention, that person can be interrogated – civilly, of course – without lawyers, forced to answer and then have those answers used against them in court.
I wrote last week about two eerily similar things: the desire of the State to be able to stop anyone on the street and question them and their desire to possess the power of the investigative subpoena.
You give them an inch on the Constitution; they want to take the whole thing away. You better familiarize yourself with Herr Flick up there.
Image of Richard Gibson as Herr Otto Flick, of the Gestapo, from here.