No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor shall private property be taken for public use, without just compensation.
--Amendment V, U.S. Constitution
You have a right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights?
--Joe Friday, Dragnet 1967
That second quote is actually what's known as a "Miranda warning", but I first became aware of it watching decade old Dragnets in the 1970s. Joe Friday said it in every episode. Much more so than, say, Ironside or Colombo or Starsky and Hutch, but that's because those guys would tell some underling (and bit player), "OK, read 'em their rights!" So the rights did get read. But that Joe Friday, he did it himself. He didn't even pass on the responsibility to Harry Morgan! He was one right Joe, all right. However, many years later I watched some even older Dragnets , from the 1950s, and while it was a lot like the later version, there were three significant differences. It was in black-and-white, someone other than Harry Morgan played Friday's partner, and Friday never, ever said the Miranda warning. Simply because the Miranda warning did not yet exist. What a difference ten years make!
Although the warning didn't exist during Dragnet's original run, the fifth amendment did, though people then, and now, associated it with something a defendant in a trial says as he's being harassed by a prosecuting attorney: "I'll take the Fifth!" But, either way, what exactly is the point? Why can't somebody say something that will be used against them in a court of law? Why can't they be compelled in a criminal case to be a witness against themselves?
The answer is torture.
For most of our nation's history, the idea was that if the cops tortured a confession out of someone, at the very least that someone had a chance to recant it in court. Of course, there was always the possibility that the jury might disregard the recantation, and just go with the original confession. So, shortly before the second Dragnet aired, it was decided not only could you take the Fifth in court, but also before hand. Way before hand. From the moment you were arrested. And the cops had to tell you you could do this. And that you were allowed to have an attorney present, so in case something went wrong during questioning, the attorney could say, "Hey! Stop torturing my client!"
Former Vice-President Dick Cheney is thought by some to have condoned the use of torture against prisoners taken in the wars in Iraq and Afghanistan. There's a growing drumbeat that he should be investigated, and even tried in court, for condoning such torture. If he is investigated, and if he is tried, and if some prosecuting attorney does harass him about it in court, well, he has an out.
He can take the Fifth.
If Cheney chooses, out of the goodness of his heart, not to take the Fifth, what might he say? Well, the Fifth Amendment does make an exception "in time of War". That just leaves the Geneva Convention to worry about.
There's also the mitigating factors, such as ticking time bombs. This, I'm told, is a popular excuse for torture on the TV show 24 (can't Keifer Sutherland ever arrest anybody before they set the damn timer?)
This all sort of assumes that cops, soldiers, and secret agents never make mistakes. I don't mean mistakenly torturing somebody, I mean mistakenly torturing the WRONG somebody. Do they always get their man?
Aside from the legalities, there's both a moral, and a logical argument against torture. The moral argument is that torture is , well, immoral. The logical argument is that someone under torture will lie, tell you what you what you want to know, and what good is that information?
Now it's coming out that Cheney didn't want people tortured to prevent ticking time bombs, but rather to find some sort of connection between Saddam Hussein and 9/11. Now, again, I ask you, what good is that information? If some prisoner had lied about such a connection, we would have just gone to war under false pretense.
There might be some tortured logic here, after all.