Should Silence Be Free?

Moussaoui.jpegThe invaluable Lyle Denniston reports on Zacarias Moussaoui’s new filing before Judge Brinkema :

The new filing also contended that the government, with aviation security evidence, would be seeking to prove something that the government had not planned when it initially proposed a death sentence. In the notice of intent to seek the death penalty, the reply noted, the government said that it would show as an act justifying such a sentence that Moussaoui had lied, and that act connected him with the deaths on Sept. 11. Now, according to the defense, the government is seeking an opportunity to prove that the deaths were due to Moussaoui’s failure to tell the truth. That would contradict his right to remain silent, the lawyers contended . . .

“While an incarcerated defendant may not lie to authorities, he certainly is not required to tell the truth, for he is not required to say anything,” the reply said. “It would be an extraorindary proposition — and like the Court, the defense is unaware of any such case — to execute a defendant for an omission, including his failure to take the affirmative step of telling the truth. But that is precisely what the government is now attempting to do…”

This is strong rhetoric in support of a freedom – the right to withhold life-saving information from the government – that probably finds little support among citizens. Indeed, the popularity of discussions of the “ticking time bomb” justification for torture suggests that most people don’t really believe there is a freedom to be silent when in possession of information that could prevent catastrophic crime. To the contrary, the overwhelming majority of the country seem to think that society has the moral right to compel the silent to speak. By compel, I mean inflicting extreme physical pain until you surrender your “determination, courage, and will,” and talk. (The quote is from the abstract to Michael Seidman’s forthcoming book, Silence and Freedom). Indeed, I imagine that most citizens would want to immunize officers in a real ticking bomb scenario were the tortured suspect die before speaking: thus, the freedom to be silent is, like all constitutional guarantees, contextually rooted at best.

That is, while I understand the legal basis behind Moussaoui’s motion, and I’m uncomfortable with the idea of an omission leading to an execution, I don’t think the defense struck quite the right note. The government has a powerful counter-narrative at hand: the Constitution does not celebrate silence in service of evil. Right?

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8 Responses

  1. ambimb says:

    “No person shall be . . . compelled in any crimenal case to be a witness against himself.” U.S. Const. amend. IV.

    The Constitution does not “celebrate” silence for any purpose; rather, it guarantees the right of the accused to remain silent. It contains no qualifiers or caveats. The argument here seems to be that we should allow law enforcement to compell the accused to speak (even via torture!) simply because “the overwhelming majority” thinks the accused’s right to remain silent has a limit. If that majority feels so strongly about that, perhaps it should use the political process to amend the Constitution; short of that, it seems the defense argument here is on very firm Constitutional ground.

  2. Concurring Opinions: Should Silence Be Free?

    The Constitution does not “celebrate” silence for any purpose; rather, it guarantees the right of the accused to remain silent…. The argument here seems to be that we should allow law enforcement to compell the accused to speak (even via torture…

  3. Christine says:

    I don’t agree with you, either. (Sorry!) Obviously, remaining silent may be morally reprehensible, but it is still a constitutional right. I’m also not sure that most citizens would agree with you that torturing someone to death in a ticking time bomb situation is ok. Bad cases make bad law, and I would hate for the exceptional facts in this case to create precedent that the right to remain silent is contextual. I would agree that remaining silent during an ongoing conspiracy could be seen as continuining (not repudiating) the conspiracy, but that’s as far as I would go.

  4. John Jenkins says:

    I’m not sure these analyses are quite right. If he had talked about the conspiracy (assuming he was involved) to the police and before it happened, he would have been renouncing the conspiracy and thus not criminally liable and the Fifth Amendment privilege would not apply.

    The right to remain silent is a trial right: the statements can’t be used against you in court to prove your guilt. There is no existential right not to speak when interrogated, it’s just that if you do, you’re protected.

    I think in the ticking time bomb scenario, the defense of necessity could be pled by the torturer, though it would be interesting to see how it played out (must there have been a bomb? must the torture have resulted in finding it? If the torturer had a reasonable belief that there was one when there wasn’t, can the torturer claim the necessity defense?)

    If the government can prove that you (1) were part of a conspiracy and (2) did not speak up (and thereby renounce the conspiracy), then you are still a part of the conspiracy and I don’t see any Fifth Amendment problem there.

  5. Max says:

    “To the contrary, the overwhelming majority of the country seem to think that society has the moral right to compel the silent to speak.”

    Not to be pedantic, but do you have any numbers for that one? And even if you find numbers suggesting an “overwhelming majority” would approve torture on known-suspected-whichever terrorists, I see a possible distinction between convicting someone on the basis of not speaking and punishing them after conviction for the same, one which could make a critical difference in popular attitudes.

  6. Dave Hoffman says:

    Max: No numbers, just a very strong intuition. Numbers, in this context, are going to depend on the framing of the question, as you smartly note. But I don’t know that the difference between that the act/omission bias would account for a difference between popular views of liability and punishment in this context.

    Christine: I didn’t mean to say that citizens will conclude it is “ok” to torture someone to death, but rather than we would be likely to immunize the officers who tortured in the ticking time bomb context – especially if the torture led to usable, life-saving, information. We immunize people we think made “mistakes” all the time in criminal/civil rights law – it doesn’t mean that we fully endorse the conduct.

    “Ambimb”: The constitution does not say that you have a right to be silent, it says that no person “shall be compelled in any criminal case to be a witness against himself.” There is a different, perhaps without a difference under modern interpretations of the clause. My point was more modest, I hope. I just meant to argue that the defense team’s invocation of the right to be silent in this circumstance felt at the rhetorical edge of what the country is willing to imagine the right to be. The judge’s unwillingness to accept the defense team’s argument suggests that she, too, wasn’t convinced.

  7. Jame says:

    What is Zacarias Moussaoui’s crime?