your papers, please

your papers, please

Terry Hiibel was arrested in Nevada in May 2000, for the heinous crime of not providing his name to a police officer. You can see a video of the incident here. On March 22, 2004, the Supreme Court heard oral arguments in the case.

Some justices asked some questions that disturbed me. For example: (emphasis mine)

"QUESTION: Why isn't the -- maybe you and I
differ on -- on what the -- what the course of a
responsible citizen is. I would think the course of a
responsible citizen would be to answer the question what
you're doing here and what your name is. And if he
doesn't answer that, I would -- I would say that that make
-- may cause the situation to rise to the level of
probable cause.
MR. DOLAN: We -- we --
QUESTION: He's hanging around a jewelry store.
It's late at night. He won't say who he is. He wouldn't
-- won't say what he's doing there. I would -- I would
drag him in.
MR. DOLAN: Well, the -- the person could be
purchasing jewelry for his paramour and -- and he does not
want his wife to know.
QUESTION: It's possible but unlikely.
(Laughter.)
QUESTION: But isn't there another answer?
QUESTION: Suppose --
QUESTION: Isn't there another answer?
QUESTION: -- suppose there is probable cause to
arrest and an arrest is made. Could the State then
require that the person answer as to his identity just so
that the officer can confirm that he's got the right
person?
MR. DOLAN: Again, I believe even in a post-
probable cause booking procedure, a person has the right
to remain silent if they view from their perspective --
and I believe this is what the test is. Rhode Island v.
Innis would -- would syggest that.
QUESTION: Now, is that a Fifth Amendment
privilege that you're --"


From this I gather that the Supreme Court views the right to remain silent as more of a loose guideline rather than an absolute. Furthermore, it does not see the Fifth Amendment as enumerating a Right, something innate to all humans, but rather as a priveledge, something which can be revoked at the whim of the State.

"QUESTION: I mean, you're not probing the
perception, the memory, the cognition of the witness.
You're just determining an extrinsic fact."

For a person to respond to any question, he must use his memory. If I do not know my name (perhaps due to amnesia), then I could not reply. This alone affirms that a police officer would be probing the memory of the witness. And a cop should be allowed to ask a person's name. However, the right to remain silent that is specifically stated after an arrest must also apply before an arrest; as a right, it must exist at all times for all human beings.

"QUESTION: Well, in terms of the State's need to
know this information, how do you distinguish it from
requiring people to register, give their name for the
draft?
MR. DOLAN: In this case, Your Honor, the -- the
name is testimonial and incriminating because of the
dynamic of the Nevada statute in question.
QUESTION: Well, you should just plead the Fifth
Amendment, say, I -- I refuse to answer on the ground that
it might incriminate me. That -- was that -- was that
what was done here? I didn't realize you're -- you're
making a -- a Fifth Amendment incrimination claim. Is
that --
MR. DOLAN: We are, Your Honor.
QUESTION: -- is that part of your --
QUESTION: I -- I can go back for a second --
MR. DOLAN: Yes, Your Honor, we are.
QUESTION: So that -- that assumes that he was
guilty and -- and had he not been -- had he not been
guilty of the beating, then he -- then -- then you would
acknowledge that he would have had to answer. It's only
the person who's guilty of the beating who would have a
right not to answer."

Here, the Supreme Court has turned the Fifth Amendment upside-down, and effectively states that the exercise of the Fifth Amendment right is a de facto admission of guilt.

It will be interesting to see the outcome of this case. If the US Supreme Court rules against Hiibel, then that opens the door to the requirement for national ID cards, and police demanding to see your "papers please"... when coupled with Homeland Security and other recent assaults on freedom in America, a frightening scenario indeed.