The Pakistani Spectator

This is the fourth article in my series begun with my earlier article Limits of Free Speech, all dealing with issues behind free speech and free expression. (I originally planned just two articles, but these topics sometimes take on a life of their own! I do think this will be my last on the topic of freedom of expression, however, at least for a longish while.) If you have a right to say whatever you choose, within some minimal limits that I discussed in that first article, it is only logical that this right should include a right to say nothing, whenever it is your choice to remain silent.

Like the right to free speech, however, there are legal limits, under US law (and likely under the laws of most nations – feel free to comment, if you have particular knowledge of the laws of your own or other nations) to the right to remain silent.

You might be amused to know that in American culture, “the right to remain silent” is not just some minor detail of the larger right to free speech, but is generally viewed as a separate right, and the specific phrase “the right to remain silent” has come to be so well known as to be a cliché, even more than the phrase “free speech” or the phrase “freedom of speech.” There are two reasons for this: First, there was a court case, Miranda v. Arizona, from 1966, where the US Supreme Court decided that police had to operate by certain rules when arresting suspected criminals and trying to get information from those criminals, and the most important of these rules was the police must advise the newly-arrested suspect of their rights as suspects. To get this exactly right, police actually read or recite from memory a precise statement of these rights that is exactly the same at every arrest anywhere in the country. The very first words of this statement are, “You have the right to remain silent.” Second (since most Americans are never arrested, so they never hear these words from an actual police officer!), television shows about American police and courts finding, arresting, and trying criminals are very popular in the US, so the average American (who spends far too much time watching television!) probably hears the phase “the right to remain silent” hundreds of times per year, as some actor playing a police officer recites the “Miranda rights” to another actor playing a suspected criminal! (One irony of this is that reading suspects the Miranda rights is no longer really necessary, except as a matter of legal form, because it is almost impossible that a real suspect won’t already be well familiar with these rights, if that person grew up watching American television!)

In the context of persons in danger of being prosecuted for criminal offenses, this “right to remain silent” is absolute, under US law. The Supreme Court didn’t just figure this out on the occasion of the Miranda case, either, as some sort of logical extension to the right to free speech granted under the First Amendment to the US Constitution. On the contrary, the right to avoid “self incrimination,” speech that would assist the courts in convicting you of a crime, has been specifically and separately guaranteed under the Fifth Amendment to the US Constitution, for over 200 years.

Some other forms of right to silence are also guaranteed: There is a tricky trade-off involved with granting the right to keep a secret. On the one hand, it would be useful for the government to be able to command us all to reveal what we know, for example, about crimes committed. On the other hand, if the government could command anyone to tell things told to them under an understanding that these secrets would not be told, then such understandings of secrecy would become meaningless. This would be ruinous to some important relationships in our lives. Husbands and wives ought to have some confidence that they can keep each other’s secrets. Patients ought to be able to speak freely to their doctors and other medical-care providers. People seeking counsel from ministers, imams, priests, rabbis, psychologists and other sorts of professional counselors ought to speak freely, knowing that their secrets will be kept. People seeking legal help and advice need to know that their lawyers will keep their secrets. Consider what would happen if the government did not grant the right to keep these secrets: People in need of help would face a new choice: Live without help, or only get help of a poor sort from someone who does not know the whole truth, because they can’t keep the secrets, or find help from some probably questionable professional who lives outside the law, and promises to keep the secret in spite of the law, but who might also choose to blackmail. People trying to be helpful would face a hard choice: Live outside the law, and try make a convincing promise of confidentiality, facing horrible legal consequences, potentially, if the government demands a secret you promised not to tell, or live within the law, advising clients that no secret can be kept, and trying to be helpful in spite of knowing that your clients cannot share with you a truthful picture of their problems.

Under US law, this difficult trade-off was made in favor of these confidential relationships: The court cannot force lawyers to testify against their clients, medical professionals to give up patients’ medical secrets, counselors (religious and otherwise) to spill the secrets of those who sought their counsel. These professions, in fact, all have ethics requirements in the US that not only allow them to keep these secrets, but positively require that they do so, except under very unusual circumstances (such as immediate danger that keeping the secret will lead to someone’s death). Between husband and wife, US law extends the protection against forced self-incrimination as if one’s spouse is virtually oneself. Here, there is choice, though – just as you may choose to incriminate yourself, you may also choose, under US law, to testify against your spouse. (This would be particularly important, for example, if one spouse criminally harmed the other – the victim would obviously need the right to testify against the spouse who committed the crime!)

Sometimes, groups attempt to add themselves to these few protected groups that may legally keep a secret, even if the courts demand their testimony in a legal case. The press is the most notable group of this sort. They often receive secrets, for example, “leaks” from persons in government who want the public to be made aware of government secrets (usually some information that is embarrassing to the government, rather than something that the government has a genuine and legitimate need to keep secret). They wish to be able to promise these sources of information that they won’t reveal where the information came from, since these sources could not otherwise reveal their secrets without risk to their careers. The US courts, however, have not generally recognized a blanket right of confidentiality between news reporters and their sources, so in legal cases where the legal need for the reporter’s testimony is substantial (where the government is not just fishing for information that is not significant to a major legal case, that is), the courts have presented reporters with a choice of going to jail or breaking their agreement of confidentiality with their sources. In most of these cases, the reporters have chosen jail, except where their sources specifically gave permission to reveal their secrets.

In President Clinton’s second term, courts had to decide whether the US Secret Service, in charge of protecting the president, could be compelled to give testimony regarding the president’s personal affairs that they witnessed. (This was the case where Clinton was accused of lying under oath about having an affair with a young woman who sometimes worked in the White House.) US presidents have so often been attacked, sometimes in spite of very large efforts to protect them, that the Secret Service finds it necessary to watch US presidents so closely that they lose almost all privacy. For Secret Service agents to do their job well, they need the cooperation and trust of the president – imagine the risk if the president tried to sneak off for an affair without their knowledge. In this case, I think, the courts made a poor choice to force the Secret Service (whose very name implies that they keep the president’s secrets!) to testify against Clinton. However people felt about the justice of the charges against Clinton, I think the resulting legal precedent made the enormously difficult job of protecting a US president much harder, since now presidents cannot feel entirely free to let the Secret Service know their personal lives, and may even attempt to evade their own bodyguards. (These Secret Service agents have my immense respect. They have long and rigorous careers in the Secret Service before they are permitted to guard the president in office, who by that time is as likely to belong to another party as their own. Every one of them will unhesitatingly step in front of a bullet to protect even a president whose policies and personality they loathe, not because they love the man, but because they love democracy, and the president was selected to lead the US by our democratic process, and, however unfortunate that choice was, he should not be “unselected” by the choice of some assassin.)

So, if you are not in one of the protected groups with recognized rights to keep confidences, and you are not being asked to give testimony against yourself, you may generally keep your silence only if you are not called before a court for testimony in a legitimate case. (Income tax administration is another area where Americans don’t generally retain a right to say (or write) nothing, and to keep their own secrets – any American with more than a very small income must file annual income tax forms, and is legally obligated to be truthful in these.) The penalty, historically, for failing to give required testimony is jail, until you change your mind and speak, or the testimony becomes irrelevant, or the court gives up on getting the testimony. Recent history has seen a shameful change to this long policy, however. The Bush administration has tried to make a case that fighting terrorism requires a change to the rules that have worked for over 200 years. Among other things, they have tried to make a case that “enemy combatants” suspected of being terrorists do not have the usual right to remain silent enjoyed by suspects of any other crime, and that if they refuse to cooperate with their questioners they can be threatened with much worse than just simple imprisonment.

In the past, there have been just two categories of prisoners under US law:

• Criminals and criminal suspects with full Miranda rights to legal counsel, and to unpunished silence.
• Prisoners of war, with rights granted by the Geneva Convention, including the right to only reveal their name, rank, and serial number, and the right to otherwise be treated with dignity and respect, humanely imprisoned for the duration of the war, not as punishment, but simply as a means of keeping them out of the war, since they have surrendered.

The Bush administration’s new category of “illegal enemy combatant,” given to suspected terrorists, has had none of the protections granted to either of the old categories, and has been subjected in many cases to what any reasonable person would call torture to extract information, denying them any semblance of the right to remain silent. (Representatives of the Bush administration repeat, like some kind of mantra, that the US does not torture. As nearly as I can tell, the true meaning of this mantra is nothing more than a crass attempt to evade the problem by definition – the administration defines torture as the sort of questioning that uses methods more severe than the US uses, so by definition, the US cannot use torture! This sort of reasoning reminds me of the sort of self-justification sometimes seen in American 5-year-olds, who explain that they were not really lying, because when they said something that wasn’t true, they had their fingers crossed behind their backs, which in the mythology of small children in the US somehow reverses a lie!)

Unfortunately, torture (whatever we call it) of suspected terrorists is all too easy to “sell” to a frightened American public. There is a handy hypothetical problem used to sell the notion: “What if you knew that the terrorist you had just captured knew the location of a well-hidden nuclear bomb about to destroy New York, and how to deactivate it – wouldn’t torture of an evil terrorist be a small price to pay to save all those innocent people of New York?” Well, I’m no absolutist, so, no, I wouldn’t blame the torturer in such a circumstance, and if he saved New York, I’d probably nominate him for a medal. The problem with this neat little hypothetical is that it has never happened and never will happen. No, in real life, too many of these “enemy combatants” are held based on very skimpy information. Perhaps all we really know about them is that someone (who might himself have been a terrorist, raising money for his own plans!) was willing to accuse the poor fellow of being a terrorist in return for a nice reward offered by the US forces for information about terrorists. Maybe he was an enemy of the person who turned him in, for purely personal reasons; maybe he was just a stranger, sacrificed for some easy money. Occasionally, we have much more concrete information and fairly solid proof of guilt (although the very low number of conventional criminal prosecutions for terrorism, and the reluctance of the administration to place these prisoners under conventional criminal justice makes this likely to be rare). Even in these cases, though, the enemies who remain free must know that we likely have their man, and they can easily just change targets and hideouts, making any concrete information we might extract likely to be stale and useless, even assuming that they are truthful under torture.

There are fine moral reasons to reject torture altogether. If you believe those reasons, there is no need for me to make an argument, here. If you don’t see this as a morally absolute question, though, more as a matter of trade-offs, then the matter is more open to argument. Do we need a law, in the US, allowing torture, just in case we someday capture that hypothetical terrorist holding the key to stopping a nuclear bomb, and by having such a law, allowing the torture of a single evil man, we could save millions of innocents? Well, no, in such a case, I have no doubt that there would be plenty of people handy who would simply break the law, if that is what it took, and who would accept the consequences. Furthermore, do you really imagine that this hypothetical torturer, who saved a city, would actually be punished? The US president has the power to pardon anyone he wishes, for any conviction in American courts, and I can guarantee that this city-saving hero would not wait long for his pardon! No, the administration seeks legalized torture (though they call it under some more euphemistic name, like “strenuous questioning”) for much more routine purposes, as a routine tool to learn more from captured men in Guantanamo and elsewhere. We are not talking of one torture session saving a city, but many, many torture sessions perhaps saving a few lives, perhaps a few hundred, perhaps even (if we are very lucky) a few thousand. It is impossible to calculate, with any certainty, just what the payoff is, versus the cost, in terms of lives saved per hour of agony inflicted (though it is surely not so great as in the city-saving hypothetical!). Many argue from studies of the fruits of torture that it is actually not a very effective tool for extracting information. I think a better argument comes by just going ahead and accepting that use of torture might very well gain information to prevent another disaster on the scale of the 9/11 attacks, just for sake of argument. Is it then worth the cost, to torture perhaps a few hundred suspected terrorists, for perhaps a few hours each?

I say, no, even then, it is not worth the cost! Democracies have, in the past (as in World War II, or the American Civil War), accepted truly enormous costs to fight for our values, including the loss of millions of lives. Prime among those values is that we don’t deliberately inflict pain on helpless, possibly innocent people in our custody, and that even suspected criminals are to be assumed innocent until proven guilty in a court of law. Now, we wish to throw those values away to perhaps save a few thousand lives, to each avoid a tiny personal risk that we might ourselves be among those lives lost? The Republicans (Bush’s party) love to posture as the party of firm moral principles and manly courage, the tough-guy party, while calling those liberal Democrats (who oppose torture) wimpy, namby-pamby, unprincipled cowards. Where is the courage in ordering some low-level questioner to torture some now-helpless, possibly-innocent (since he was never tried in court) prisoner because perhaps this makes Americans just a little bit safer? Is it not more courageous to hold to principle and to accept whatever risk may result? There is a practical benefit, as well: When we hold to our principles, Americans rob our enemies of propaganda victories that likely cost us far more than any information we might gain is worth – how many terrorists joined up as a result of those shocking pictures from Abu Ghraib?! To win against the terrorists, the “high road” of holding to principles and not being the inflictor of harm against potentially innocent persons is the best path to eventual peace, whatever the short-term costs and risks, but this is not at all the road chosen by the Bush administration.

The world, including the Islamic world, was briefly highly sympathetic to the US after 9/11, and ready to support us. Bush threw that away by taking the low road, the road of “might makes right” and “the ends justify the means,” and the result is a huge loss of respect, and a switch from Americans being viewed as innocent victims of an unjustified attack to being viewed as the perpetrators of disproportionate harm in cowardly, foolish, and misguided overreaction to that attack. The US responses to the 9/11 attacks have undoubtedly killed some evil terrorists (along with far too many innocents), but they have also cost the US most of the sympathy and respect it once enjoyed, and have encouraged recruitment of vast numbers of replacements for those terrorists killed.

(A short follow-up note on recent good news since I began this article: In a recent case, the US Supreme Court has recently affirmed that the prisoners in Guantanamo do have many of the important basic rights granted to criminal suspects, contrary to the arguments and wishes of the Bush Administration. As far as I know, the US Supreme Court has not yet specifically addressed the question of whether these rights include the right to remain silent, without being subjected to torture for exercising that right, but at least the court, in spite of being mainly filled with Republican appointments, appears to be showing some (rather overdue) backbone, and moving in the right direction.)