RETHINKING THE RIGHT TO REMAIN SILENT:
American Citizen Jose Padilla Has Constitutional Rights, And How Its Dilemma Can Be Solved

Last week, the ACLU began its challenge to the detention of "dirty bomb" terrorism conspiracy suspect Jose Padilla. The ACLU argues that Padilla - an American citizen who was arrested here in America - is entitled to the full set of constitutional rights that U.S. citizens enjoy, including the right to a public trial.

In contrast, the Bush Administration claims that Padilla is an "unlawful combatant," and thus not entitled to any of these rights. This position, however, seems plainly wrong

Padilla is believed by the government to have betrayed his country by conspiring with Al Qaeda members, not to have joined a foreign arm to fight against the United States. As a result, it seems that - as Jake Kreilkamp pointed out in a prior column for this site - the government should be charging Padilla with treason, not claiming he is an "unlawful combatant."

Since treason is a capital crime, the most severe possible sanction would be available to the government if it pursued this route. But nevertheless, the government is balking. Why?

Probably because the government knows that calling Padilla's alleged crime what it is - treason - will mean that his rights as a citizen must be honored. And among those rights is the right to remain silent.

The Administration apparently believes that Padilla knows valuable information about Al Qaeda's members and their activities. Thus, it fears that giving him his full set of rights - including the right to remain silent - could prevent the government from finding out invaluable facts that could prevent future terrorist acts.

How can this dilemma be solved? One answer is that Padilla and other "weapons of mass destruction" suspects could be held to be entitled to only a modified version of their Fifth Amendment rights - one in which they lose the right to remain silent. They should, however, be able to invoke all other constitutional rights - including their Sixth Amendment right to an attorney.

The Problem with Recognizing the Right to Remain Silent in Padilla's Case

The Fifth Amendment bans compelled self-incrimination. This means that the police cannot beat or torture you into giving a confession, or force you to tell them other information they want to know. As currently interpreted, it also means that prosecutors cannot force you to appear for a deposition, even one in which you are represented by an attorney - as defendants in civil cases routinely do.

Thus, if Padilla is recognized as having the rights of a citizen, he need not speak to police at all, if he chooses not to. Moreover, his attorney (for he would also have the right to one, under the Sixth Amendment) would almost certainly tell him not to.

Thus, the Justice Department's only option if it wanted to force Padilla to speak would be to offer him full immunity from prosecution - something it would understandably be loath to do if it thought he was guilty.

The Cost to Defendants Like Padilla of Enjoying a Broad Right to Remain Silent

This sounds like a great situation, from Padilla's standpoint, and to some extent, it is. Moreover, it's an advantage that continues not only through detention, but also through trial. Even if Padilla remained silent throughout the trial, he could still tell his side of the story through counsel in his opening and summation, without even testifying - and thus without subjecting his version of events to cross-examination by prosecutors.

In short, the right to remain silent gives Padilla - and every criminal defendant - certain unfair advantages. However, as I explained in greater length in a previous column, criminal defendants also pay a heavy price for these advantages.

The justice system tries to compensate for the advantages the right to remain silent confers, by favoring the prosecution over the defense in numerous ways. For instance, Padilla is, in a sense, paying a high price now for the right to remain silent now - for it is primarily that right, I believe, that has led the Administration to disingenuously deem him an "unlawful combatant."

That is unjust. Criminal defendants, like civil defendants, should be able to freely conduct depositions, subpoena documents and witnesses, and serve interrogatories. But, like civil defendants, they should also have to sit for depositions themselves, accompanied by an attorney.

This would be a fairer system - particularly for an innocent defendant, for whom the advantages of the right to remain silent are far less than the price he must pay for its exercise. An innocent defendant has relatively little to fear from an attorney-attended deposition. Yet he has much to fear from a system that is skewed against him in numerous ways in order to compensate for this right. If Padilla is innocent, for instance, when will we learn that fact? Years down the road? Perhaps never?

It is the guilty who are truly benefited by the right to remain silent - for cross-examination never has a chance to expose their lies. And that point alone should make us question the value of this right.

What If Padilla Had a Right to Counsel, But Could Be Deposed?

Aside from fearing Padilla's Fifth Amendment-derived right to remain silent, the Administration might also be afraid of his Sixth Amendment right to counsel. After all, as noted above, attorneys routinely counsel their clients to exercise the right to remain silent.

But what if Padilla didn't have the right to remain silent, and therefore was required to give a deposition, but did have the right to an attorney? That is, what if he had his full Sixth Amendment rights, with only a modified version of his Fifth Amendment rights - in which he could be questioned in front of a court reporter (and perhaps a judge, as well), but not subjected to forcible interrogation?

In this scenario, Padilla's counsel would likely focus on helping him to present his testimony in the way most helpful to himself, which is reasonable. Counsel would probably also caution him to be truthful and careful, in order to avoid the perjury trap. Counsel might also be more likely to be able to convince Padilla - who would have to answer the government's questions anyway - to cooperate against other, more culpable co-conspirators, and thus lessen the penalty to himself.

The government would then stand a far better chance of getting the crucial information it believes Padilla has, while still honoring his constitutional rights. Given that the government seems to see Padilla as a relatively small fish, this very strategy might work for both sides. Padilla, if he is a small fish, could receive a modest penalty, and the government could receive the crucial "dirty bomb" conspiracy information it craves.

What If Criminal Defendants Such as Padilla Are Deposed and Still Do Not Speak?

In a sense, a contempt sanction like this is a kind of indefinite detention. But it would not be the kind of abusive indefinite detention that the Administration has been imposing on Padilla and other similar suspects.

That's because the reason for the contempt detention would be crystal-clear: the refusal to speak. And Padilla himself would hold the keys to his cell: as soon as he agreed to speak, the detention would cease. Thus, the most frightening aspects of the government's current indefinite detention of suspects - no access to an attorney, no end in sight, no way for the detainee to end his detention - would not be present.

Allowing Sixth, But Not Full Fifth, Amendment Rights Is Only a Partial Solution

Granted, the solution I have proposed - honoring full Sixth Amendment rights, but only one version of Fifth Amendment rights - is not a complete one. It also leaves a number of important questions unanswered.

For instance: Could Congress reinterpret the Fifth Amendment to mean that defendants cannot be beaten into confessing, but can be deposed in the presence of a lawyer - or would a Constitutional amendment be necessary? And, even without a right to remain silent, will suspects' access to a lawyer present a serious impediment to the war on terrorism, by preventing the government from using the tactic of fully isolating them to get information?

We will never know the answers, to these questions, however, until we test the solution of de-coupling the right to remain silent from the right to an attorney. Moreover, it appears that unless we separate the two rights, the government will probably continue to insist on affording "weapons of mass destruction" defendants like Padilla no rights at all - instead simply locking them up forever, or until the unlikely day when it no longer deems them a threat. Surely, as a society that prides itself on the rights it affords its citizens, we can do better than this.

An Issue That Goes Beyond Politics

The Administration has faced criticism from many quarters for its detentions - and rightly so. But it is correct on one point: It deserves a chance to protect us all from apocalyptic possibilities. That has led to the fundamental quandary for law in a time of terrorism: How can rights be honored, and public safety still protected?

I have suggested that in an era when rights are threatened, the primary culprit may, ironically, be one of those very rights: the right to remain silent. A modified version of the right that allowed depositions but not coercive and abusive treatment of suspects might go a long way towards restoring other important rights that have been abridged.