The Economist

Torture still casts a long shadow in the battle between spies and terrorists

JACK BAUER famously does whatever it takes to save America from disaster, be that disaster nuclear, biological or computer attack. Week after week, the hero of “24” acts brutally, and endures brutality, for the greater good. It is a sign of the times that this year’s season opened with Bauer being hauled before a congressional committee to face the charge of committing torture. He was unrepentant.

This television character, who first appeared in 2001, has been oddly at the heart of the arguments over the conduct of America’s “war on terrorism”. Critics in the American army have complained that he encourages young soldiers to abuse prisoners. Supporters, such as Antonin Scalia, a Supreme Court justice, praised him for the episode in which he saved Los Angeles from nuclear attack, even though it meant staging the mock execution of a family to get a Middle Eastern villain to talk. “Is any jury going to convict Jack Bauer? I don’t think so,” said the judge.

In contrast with Europeans, who strongly reject the use of torture, the American public is pretty evenly divided about its use to extract information from terrorists. But President Barack Obama, for one, is clear. No sooner had he been sworn into office than he banned torture, rescinded legal opinions allowing simulated drowning and other harsh methods, ordered all American agencies to comply with the army’s field manual on interrogation, announced he would close the prison at Guantánamo Bay within a year and ordered a series of policy reviews on detention and interrogation. “From Europe to the Pacific”, Mr Obama said in May, “we’ve been the nation that has shut down torture chambers and replaced tyranny with the rule of law.” Dick Cheney, George Bush’s vice-president, sneered at such talk as “recklessness cloaked in righteousness”.

Many people thought that Mr Obama’s election would finally settle the controversies about counter-terrorism’s “dark side” (as Mr Cheney once put it); a darkness that concealed secret prisons, abusive interrogation and “rendition” to countries that practise torture. The distorted DIY legal framework that treated suspected terrorists as neither criminals nor prisoners-of-war, leaving them in an unprotected grey zone between civil and military law, would, many liberals hoped, be put right.

In April, against the wishes of current and former CIA directors, Mr Obama released four secret memos from the Department of Justice, written in 2002 and updated in 2005, that made legal the CIA’s use of “enhanced” interrogation techniques such as the use of the “waterboard” (simulated drowning), sleep deprivation, “walling” (hurling a prisoner against a partition wall), “stress positions” and strange practices like placing a “high-value prisoner” in a cramped box with an insect to exploit his phobia about bugs. It revealed that one prisoner, Khaled Sheikh Mohammed, the operational head of the September 11th 2001 attacks on America, was waterboarded 183 times.

Mr Obama said that he did not want to prosecute those who operated within these rules. He knows that if he takes action against interrogators he could be accused of seeking scapegoats; if he goes after the CIA chiefs he would be charged with undermining America’s security; and if he investigates leaders of the Bush administration he would look as if he were conducting a witch-hunt against his political rivals. “Nothing will be gained by spending our time and energy laying blame for the past,” he argued.

Yet the past casts a long shadow. Some of Mr Obama’s supporters want a “truth commission” to establish what happened and, perhaps, recommend prosecutions. Congress is incensed that the CIA did not tell it of a secret programme (which may have had to do with the assassination of terrorists), apparently under orders from Mr Cheney, bringing the former vice-president a step closer to formal investigation. The attorney-general, Eric Holder, is thought to be about to appoint a special prosecutor to investigate those interrogators who exceeded the already lax limits set by the so-called “torture memos”.

Even before this, CIA officials had been hiring lawyers in anticipation of trouble. Some of Mr Obama’s favourite spooks have been unable to take up senior appointments because of their association, sometimes only peripheral, with the interrogation programme. John Brennan, a veteran CIA figure, was withdrawn from consideration as the agency’s director and was given a job in the White House instead. Philip Mudd, a respected intelligence man currently on secondment to the FBI, pulled out of his nomination to the senior intelligence post in the Department of Homeland Security. The Obama administration may have chosen these men but it put little effort into backing its choices.

The big chill

How will all this affect future intelligence operations? There is a distinct chill. Some reckon that the CIA and other agencies face their worst crisis since the post-Watergate inquiries in the 1970s uncovered evidence of spying on Americans and plots to assassinate foreign leaders. “There is undoubtedly some nervousness,” says one senior source. “It does not stop you taking action, but it makes you think twice and talk to your lawyer.”

Britain’s close relations with America are causing it similar problems. Its intelligence agencies are being dragged into the legal limelight, not for torturing suspects but for allegedly colluding in their maltreatment by others—whether they are Americans, Pakistanis or Moroccans. One member of MI5, Britain’s domestic intelligence agency, is under police investigation.

Increasingly lawyers are being brought in to scrutinise British intelligence before it can be passed on. Will handing over the name of a suspect to America lead to him being killed by an unmanned aircraft in Pakistan? Will sharing a telephone number with, say, Egypt’s spies, lead to the arrest and torture of somebody who should instead be merely watched? Will submitting questions to be asked of a man held in a foreign prison mean that British agents will be held responsible for his treatment?

Agents have become warier of questioning detainees abroad for fear that they will be blamed for any abuse they may have suffered. The number of requests by officials in MI6 (Britain’s foreign intelligence service) for the legal cover known as “Article 7”, in which the foreign secretary approves actions that are illegal in Britain, has shot up.

Many of the woes of British agencies are embodied in the case of Binyam Mohamed, an Ethiopian asylum-seeker in Britain, who gave up his drugs habit after rediscovering Islam. He went to Taliban-ruled Afghanistan to see an Islamic state at work. There he underwent some form of military training—to help the resistance in Chechnya, he says, not to fight the Americans. He was arrested trying to leave Pakistan in 2002 on a forged passport. He was beaten in prison, where he was seen by members of the FBI and MI5. He was then taken by the Americans to Morocco, where he says he was tortured by a questioner called Marwan, who took a sharp blade to his chest and penis while asking questions that had plainly been fed to him by MI5.

The British authorities say that once Mr Mohamed had left Pakistan, they did not know his whereabouts or conditions of detention; all questions were submitted through the Americans. Much of America’s programme of secret detention and interrogation was formally hidden from allies. The top-secret “torture memos” were classified “NOFORN” (no foreign nationals). But stories of prisoners being abused by the Americans were already circulating in 2002. Indeed some British officials had expressed concern at what they saw.

It was under torture, Mr Mohamed says, that he admitted to meeting Osama bin Laden and to taking part in plots including the detonation of a dirty bomb. This is what he would be accused of when he got to Guantánamo Bay in 2004, via a secret prison in Afghanistan. But, like many others, Mr Mohamed was released in February this year without charge.

By then Mr Mohamed’s lawyers, among them Clive Stafford Smith, founder of a legal charity called Reprieve, had been in full swing on both sides of the Atlantic. They sued the British government to release documents that might prove Mr Mohamed’s innocence, obtaining a High Court judgment that was critical of MI5 and led to the police investigation of one of its officials, known only as “Witness B”. In a parallel case in America, Mr Mohamed and other Guantánamo inmates are suing Jeppensen DataPlan, a subsidiary of Boeing, which allegedly provided aircraft for the CIA’s rendition programme.

Mr Mohamed’s release has not stopped the litigation in either America or Britain. Both governments argue that the lawsuits should be thrown out because state secrets cannot be divulged. Indeed, the Obama administration has warned Britain that intelligence-sharing would be jeopardised if secret information provided by the CIA were to be revealed in British courts. Similarly, officials in Britain are alarmed by what may be disclosed in America.

Waterboarding the agencies

These days it is the intelligence agencies that find themselves under interrogation. Each snippet they provide produces requests for more information. And the courts, suspicious of what the agencies may be hiding, are demanding ever more disclosure. One source of information has been the succession of freedom-of-information requests for official documents, including the “torture memos”, by the American Civil Liberties Union (ACLU).

Legal campaigners are waging an information-gathering effort that earns the grudging respect of intelligence operatives. “They are chasing the paper trail and winning,” says one. “They are chipping away at state-secret privilege [the doctrine that courts can dismiss lawsuits if classified information will be released]. They could disclose an awful lot of information—names of interrogators and medical personnel. If secrets start seeping out, countries that have been sharing information may be disinclined to do so.”

The controversies show the extent to which torture and other forms of harsh interrogation—even though they may have been abandoned—cloud the legitimate work of counter-terrorism. American sources say that in the latter years of the Bush administration, European agencies, worried that they might be caught up in America’s abusive practices, became reticent about sharing intelligence. Today, America’s partners may hold back out of fear that America will not be able to protect their information. Officials lament that the machinery of Western intelligence-sharing is becoming “gritted up”—though information about “life-threatening” plots is still swapped briskly.

Intelligence-sharing is vital. America, with its vast resources, has become the main repository of information on global terrorism. Though Britain has well-regarded intelligence services, it obtains more than half its reports on terrorism from other agencies, principally American. And about half of America’s intelligence reports on al-Qaeda until 2006, says a former senior official, came from detainees.

The Justice Department’s memos were prompted by the arrest in 2002 of Abu Zubaydah, a man with close links to al-Qaeda. The CIA wanted clearance to exert greater pressure on the first of its “high-value detainees”—even though FBI investigators would later claim that Mr Zubaydah was already talking freely.

Degrees of pain

The memos gave the CIA licence to use “enhanced” techniques derived from American training advice to pilots and other personnel on how to withstand torture if they should fall into enemy hands. They are shocking for their bureaucratic punctiliousness. They parse the degrees of pain that would constitute forbidden torture (“an intensity akin to the pain accompanying serious physical injury”). They set out in incongruous detail the limits of abuse.

A prisoner could be deprived of sleep, but for no more than 180 hours before being allowed to rest for eight. He could be stripped naked but only if the room was warmer than 68°F (20°C). He could be doused in water but it had to be potable. He could be waterboarded with cold (saline) water poured onto his face but each application should not last more than 40 seconds, there should be no more than six applications per session, no session could last more than two hours and there could be only two sessions in 24 hours.

The ACLU’s next target is a comprehensive and still largely secret internal CIA report written in 2004 by John Helgerson, then the agency’s inspector-general. This is believed to be particularly damning, providing evidence of abuse that went well beyond the permitted guidelines. Compared with the antiseptic legal memos, writes Jane Mayer, the author of a book called “The Dark Side”, the Helgerson report is a “Technicolor horror show”, including accounts of people who died in custody. A version of the report, so heavily redacted with black deletion marks as to be barely comprehensible, was released in 2008. A more complete version is expected in the coming weeks, although the Obama administration has asked for delays.

Crucially, the report is critical of the value of the information obtained through harsh interrogation. It apparently concludes that there is no evidence that such intelligence prevented any imminent attacks. But this argument was strongly contested by the Bush administration.

Michael Hayden, the CIA’s director from 2006 until earlier this year, wrote in April that enhanced interrogation had led the agency from one big fish to another. Abu Zubaydah, he says, was forced to give information that led to the capture of Ramzi bin al-Shibh (one of the planners of the September 11th attacks); he, in turn, helped lead to the capture of Khaled Sheikh Mohammed (which, the memos claimed, foiled a “second wave” plot to crash an aircraft into Los Angeles). Mr Hayden said that of the thousands of people captured as “unlawful combatants”, fewer than 100 were held under the CIA’s interrogation programme and fewer than one-third of those were subjected to the “enhanced” techniques set out in the memos. Just three people were waterboarded. This, however, ignores all manner of abuses committed in military prisons.

That there was no follow-on attack on America after September 11th was thanks in large measure, argues Mr Cheney, to the Bush administration’s policies, including the enhanced techniques. Though he denounced the release of the memos that allowed these methods, he now wants further documents to be published that would, he says, demonstrate their success.

People familiar with the inner workings of intelligence suggest a more ambiguous story. Intelligence, they argue, is about piecing together fragments of information and building up spider diagrams of connections between suspects. “Intelligence is grains of sand; you don’t usually get the whole beach,” says one veteran.

It is true that in 2001, a time when the CIA and other agencies were woefully ignorant of al-Qaeda’s methods, the prisoners captured after the overthrow of the Taliban were the first rich source of information to help “map the enemy”, as one intelligence source puts it. But, says a former counter-terrorism official, the most valuable information from Mr Zubaydah’s capture came not from his interrogation but from his address book. With Mr Mohammed, says another analyst, the most important factor in stopping further attacks on America was not what the terrorist said under duress, but that he had been captured in the first place.

Intelligence officials maintain that detainees under interrogation provided as many, perhaps more, specks of information as other sources of intelligence on terrorism, including signals and agents. The question that nobody can answer is how much of this could have been obtained without torture.

Bleak choices

The danger for Mr Obama, as he seeks to overhaul the intelligence system, is that a fresh attack on the American mainland would immediately expose him to the accusation of being soft on terrorism. In May Congress revolted against any attempt to move detainees from Guantánamo to American soil before a plan for the disposal of its 229 prisoners had been drawn up. Yet three task-forces examining the matter, including future policy on detainees, have delayed issuing their reports because of the complexity of the problem.

Mr Obama has decided to keep the reviled military commissions, albeit with reforms. And he may yet seek a form of indefinite detention for some prisoners, with judicial and congressional oversight. Lurking in the background are the lesser-known problems of America’s prison at Bagram, its main base in Afghanistan, where detainees are being held with much less scrutiny than those at Guantánamo.

Holding terrorism suspects has become a huge headache for America. One fear is that if, in future, it tracks down important al-Qaeda figures, it may prefer one of two bleak options: either turn them over to countries with far fewer qualms—or just drop a bomb on them. Jack Bauer would be delighted.

The Economist

Torture, long a moral stain, is now hindering intelligence services’ attempts to fight terrorism

SPEND time with spies on either side of the Atlantic—and you will discover that they are worried. That is partly because their profession, already sullied in recent years, may be hit by more bad news. In Europe the ordeal has already begun: an officer in Britain’s MI5 is under police investigation, and prosecutors in Italy, Germany and Spain are looking at cases linked to the CIA’s actions. In America, the centre of the problem, the spooks are preparing themselves for an onslaught that could be as bad as anything since the Church commission in the 1970s. There are hints of criminal investigations against CIA officials and a battery of lawsuits—to extract information and to claim compensation. But for the leading spymasters, there is an even bigger worry: they are finding it increasingly hard to do their jobs properly (see article).

 The reason for all this? Torture. In the aftermath of the attacks on September 11th 2001, it became widely fashionable—in allegedly liberal parts of American academia as well as Dick Cheney’s office—to argue that torture was a necessary part of democracy’s defence. In fact, those who fought against that pernicious argument, including this newspaper, possibly underestimated our case. For all its short-term uses (both claimed and, alas, real), torture has always been illegal and immoral, and ultimately counter-productive too. Long before Abu Ghraib, it was obvious that it would create terrorists as well as help capture them. But the extent to which torture would corrode the West’s security networks that are supposed to fight terrorism is only now becoming clearer.

Torture throws sand into the gears of intelligence. At first harsh interrogation may well yield information, both valuable and valueless. But over time it chokes the defences of democratic societies, because their courts and political systems cannot digest it. The work of Western intelligence is becoming gummed up with legal protocol. More information has to be vetted by lawyers before being passed on. America has warned Britain that intelligence-sharing will be curtailed if its secrets are divulged in court. Equally, many worry about what will emerge in American proceedings. The first lesson of the September 11th attacks was that intelligence agencies have to work more closely; “need to know” had to yield to “need to share”. These days, alas, it has become “need to get a lawyer”.

Would you tip off Pakistan?

Fighting a global network like al-Qaeda requires a global network of intelligence agencies. The information they swap should remain confidential, so as to protect sources and (legitimate) methods. But if judges, elected politicians and voters do not have confidence in their spooks, the system unravels.

The task is to restore trust. But how? In America Barack Obama moved quickly to ban the most abusive methods of interrogation and promised to shut the detention centre at Guantánamo Bay. He released four Bush-era memos which had twisted legal doctrine until it proved that CIA interrogators could simulate drowning, among other techniques, without turning themselves into torturers.

Mr Obama’s stand against torture is a start. But the president and senior Republicans should reconsider their resistance to a “truth commission”, which could offer some immunity from prosecution to those who speak openly. An investigation would disrupt the intelligence services—but less than lengthy court battles, which would fail to stop revelations yet still leave a suspicion that wrongdoing remains hidden.

The third step is to be readier to prosecute terrorists for their crimes. The struggle against terrorism will be long; in a democracy methods have to be sustainable. Legal process is not a luxury for good times, but a tool to rob terrorists of legitimacy and show that locking them up is justified. That way those who share the terrorists’ religion or race are less likely to be silent accomplices. More could act as sources themselves.

Fighting terrorism will always be messy. Sometimes you have intelligence about an attack, but not enough evidence confidently to make an arrest; yet you don’t have the luxury of being able to wait. Western spies inevitably have to work with the secret police of Pakistan, Egypt and others who often abuse prisoners, but also have more access to jihadists than the West ever could. Here, co-operation is a matter of wary judgment, not absolutes. For the West to refuse to deal with such countries would be as wrong as for it to put its agents in rooms where electrodes touch flesh. In between, lies the murky territory in which the West must not only trade intelligence, but must also seek assurances that people are not being abused. Ultimately, if those assurances are broken, the West will have to limit its co-operation with abusive intelligence agencies—even if that might make information harder to get. Do not forget, though, that al-Qaeda has been unable to attack America since 2001 and Europe since 2005. That is in large part thanks to legitimate intelligence co-operation, not torture.

New York Times

William Glaberson

In a diplomatic breakthrough that is likely to help the Obama administration close the Guantánamo detention camp, Portugal said this week that it was willing to resettle some detainees and urged other European countries to accept prisoners remaining at the camp, which has been a source of international criticism for nearly seven years.

The announcement was the first sign in the tangled history of the detention center in Guantánamo Bay, Cuba, that other countries might be willing to accept the Bush administration’s assertion that they should play a role in shutting it down.

“The time has come for the European Union to step forward,” Portugal’s foreign minister, Luís Amado, said in a letter to other European ministers released Thursday.

“We should send a clear signal of our willingness to help the U.S. government in that regard, namely through the resettlement of detainees,” the letter said. Mr. Amado pledged that Portugal would participate in a European Union resettlement program.

Although there is no specific agreement yet on the transfer of detainees, Bush administration officials described the announcement as a critical step toward solving the problem that has been referred to as “Guantánamo’s hard cases.” That refers to some 60 of the remaining 250 detainees whom the Pentagon has cleared for release but who cannot be sent to their home countries, often out of concern that they would be tortured or persecuted. They are from countries including Algeria, China, Libya and Tunisia.

“This is a major milestone in our efforts to secure help from the international community, and particularly from Europe, in closing Guantánamo,” said John B. Bellinger III, the State Department’s legal adviser.

Human rights groups and detainees’ lawyers welcomed the announcement, saying it could pave the way for the shuttering of Guantánamo in the early months of the new administration. “This step is an important one to usher us into a new era,” said Emi MacLean, a staff lawyer at the Center for Constitutional Rights, which represents detainees and has worked on the resettlement issue.

Mr. Bellinger said that Albania was the only country that had accepted detainees who were not its own former residents, when it accepted five Uighur detainees originally from western China in 2006. The State Department has been working for five years to persuade other countries to take some of the detainees who are in limbo because no country that the United States finds acceptable is willing to take them.

One obstacle has been resistance of some American officials to permitting detainees to be resettled in the United States.

Diplomats said the announcement by Portugal was partly a product of personal diplomacy by Secretary of State Condoleezza Rice during a trip in September. But they said it also appeared that the logjam was breaking because other countries were eager to show the incoming Obama administration that they were willing to assist in the complex challenges of closing the camp.

If the 60 “hard cases” were resettled, the challenge of closing Guantánamo would be considerably diminished. About 100 of the remaining detainees are Yemenis, and American officials have long been working separately to get Yemen to promise to provide security assurances, monitoring and retraining so that many of the Yemeni detainees could be repatriated.

Resettlement programs in Europe and Yemen would leave about 100 detainees. With that smaller number, some officials say, it would be easier to close Guantánamo and transfer the remaining detainees to prisons in the United States.

President-elect Barack Obama has said he will close Guantánamo but has provided few details. He has suggested that some prisoners could be prosecuted in federal courts. Those men could be held in federal or military prisons. But the Obama transition office has not offered details of where the remainder might be held.

Mr. Bellinger said Portugal had received no promises of any assistance from American officials in exchange for its announcement.

But he described the announcement as a sign of a shift in attitudes in other capitals. “We kept telling them,” he said, “it’s fundamentally unfair to keep criticizing Guantánamo while doing nothing to help.”

In an interview, Luís Serradas Tavares, the legal adviser in the Portuguese Foreign Ministry, said his government was trying to lead the way toward a solution to what he called “a U.S. problem.”

Mr. Tavares said the details of a resettlement program would need to be worked out but might include some type of monitoring, like parole after a criminal conviction. But he said receiving governments would agree to free detainees cleared for release by the Pentagon.

He said he expected Portuguese people to be anxious about accepting men held at Guantánamo who the Bush administration said were dangerous.

But he said, “The U.S. has assured us that these people are the least dangerous people.”

No. 03-5554. Argued March 22, 2004–Decided June 21, 2004

Counsel of Record

For Petitioners Hiibel:

James P. Logan

Nevada Public Defender’s Office

Carson City, NV

For Respondents Sixth Judicial

District Court, et al.:

Conrad Hafen

Senior Deputy Attorney General

Las Vegas, NV

Petitioner Hiibel was arrested and convicted in a Nevada court for refusing to identify himself to a police officer during an investigative stop involving a reported assault. Nevada’s “stop and identify” statute requires a person detained by an officer under suspicious circumstances to identify himself. The state intermediate appellate court affirmed, rejecting Hiibel’s argument that the state law’s application to his case violated the Fourth and Fifth Amendments. The Nevada Supreme Court affirmed.

Held: Petitioner’s conviction does not violate his Fourth Amendment rights or the Fifth Amendment’s prohibition on self-incrimination. Pp. 3-13.

 (a) State stop and identify statutes often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior in the course of investigatory stops. They vary from State to State, but all permit an officer to ask or require a suspect to disclose his identity. In Papachristou v. Jacksonville, 405 U. S. 156, 167-171, this Court invalidated a traditional vagrancy law for vagueness because of its broad scope and imprecise terms. The Court recognized similar constitutional limitations in Brown v. Texas, 443 U. S. 47, 52, where it invalidated a conviction for violating a Texas stop and identify statute on Fourth Amendment grounds, and in Kolender v. Lawson, 461 U. S. 352, where it invalidated on vagueness grounds California’s modified stop and identify statute that required a suspect to give an officer “credible and reliable ” identification when asked to identify himself, id., at 360. This case begins where those cases left off. Here, the initial stop was based on reasonable suspicion, satisfying the Fourth Amendment requirements noted in Brown. Further, Hiibel has not alleged that the Nevada statute is unconstitutionally vague, as in Kolender. This statute is narrower and more precise. In contrast to the “credible and reliable” identification requirement in Kolender, the Nevada Supreme Court has interpreted the instant statute to require only that a suspect disclose his name. It apparently does not require him to produce a driver’s license or any other document. If he chooses either to state his name or communicate it to the officer by other means, the statute is satisfied and no violation occurs. Pp. 3-6.

(b) The officer’s conduct did not violate Hiibel’s Fourth Amendment rights. Ordinarily, an investigating officer is free to ask a person for identification without implicating the Amendment. INS v. Delgado, 466 U. S. 210, 216. Beginning with Terry v. Ohio, 392 U. S. 1, the Court has recognized that an officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Although it is well established that an officer may ask a suspect to identify himself during a Terry stop, see, e.g., United States v. Hensley, 469 U. S. 221, 229, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer, see Brown, supra, at 53, n. 3. The Court is now of the view that Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. Terry, supra, at 34. The Nevada statute is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures because it properly balances the intrusion on the individual’s interests against the promotion of legitimate government interests. See Delaware v. Prouse, 440 U. S. 648, 654. An identity request has an immediate relation to the Terry stop’s purpose, rationale, and practical demands, and the threat of criminal sanction helps ensure that the request does not become a legal nullity. On the other hand, the statute does not alter the nature of the stop itself, changing neither its duration nor its location. Hiibel argues unpersuasively that the statute circumvents the probable-cause requirement by allowing an officer to arrest a person for being suspicious, thereby creating an impermissible risk of arbitrary police conduct. These familiar concerns underlay Kolender, Brown, and Papachristou. They are met by the requirement that a Terry stop be justified at its inception and be “reasonably related in scope to the circumstances which justified” the initial stop. Terry, 392 U. S., at 20. Under those principles, an officer may not arrest a suspect for failure to identify himself if the identification request is not reasonably related to the circumstances justifying the stop. Cf. Hayes v. Florida, 470 U. S. 811, 817. The request in this case was a commonsense inquiry, not an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence. The stop, the request, and the State’s requirement of a response did not contravene the Fourth Amendment. Pp. 6-10.

 (c) Hiibel’s contention that his conviction violates the Fifth Amendment’s prohibition on self-incrimination fails because disclosure of his name and identity presented no reasonable danger of incrimination. The Fifth Amendment prohibits only compelled testimony that is incriminating, see Brown v. Walker, 161 U. S. 591, 598, and protects only against disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used, Kastigar v. United States, 406 U. S. 441, 445. Hiibel’s refusal to disclose was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it would furnish evidence needed to prosecute him. Hoffman v. United States, 341 U. S. 479, 486. It appears he refused to identify himself only because he thought his name was none of the officer’s business. While the Court recognizes his strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him. Answering a request to disclose a name is likely to be so insignificant as to be incriminating only in unusual circumstances. See, e.g., Baltimore City Dept. of Social Servs. v. Bouknight, 493 U. S. 549, 555. If a case arises where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense, the court can then consider whether the Fifth Amendment privilege applies, whether it has been violated, and what remedy must follow. Those questions need not be resolved here. 10-13.

118 Nev. 868, 59 P. 2d 1201, affirmed.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion. Breyer, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined.

LARRY D. HIIBEL, PETITIONER v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, HUMBOLDT COUNTY, et al.

on writ of certiorari to the supreme court of nevada

[June 21, 2004]

Justice Kennedy delivered the opinion of the Court.

The petitioner was arrested and convicted for refusing to identify himself during a stop allowed by Terry v. Ohio, 392 U. S. 1 (1968). He challenges his conviction under the Fourth and Fifth Amendments to the United States Constitution, applicable to the States through the Fourteenth Amendment.

 I

 The sheriff’s department in Humboldt County, Nevada, received an afternoon telephone call reporting an assault. The caller reported seeing a man assault a woman in a red and silver GMC truck on Grass Valley Road. Deputy Sheriff Lee Dove was dispatched to investigate. When the officer arrived at the scene, he found the truck parked on the side of the road. A man was standing by the truck, and a young woman was sitting inside it. The officer observed skid marks in the gravel behind the vehicle, leading him to believe it had come to a sudden stop.

The officer approached the man and explained that he was investigating a report of a fight. The man appeared to be intoxicated. The officer asked him if he had “any identification on [him],” which we understand as a request to produce a driver’s license or some other form of written identification. The man refused and asked why the officer wanted to see identification. The officer responded that he was conducting an investigation and needed to see some identification. The unidentified man became agitated and insisted he had done nothing wrong. The officer explained that he wanted to find out who the man was and what he was doing there. After continued refusals to comply with the officer’s request for identification, the man began to taunt the officer by placing his hands behind his back and telling the officer to arrest him and take him to jail. This routine kept up for several minutes: the officer asked for identification 11 times and was refused each time. After warning the man that he would be arrested if he continued to refuse to comply, the officer placed him under arrest.

We now know that the man arrested on Grass Valley Road is Larry Dudley Hiibel. Hiibel was charged with “willfully resist[ing], delay[ing], or obstruct[ing] a public officer in discharging or attempting to discharge any legal duty of his office” in violation of Nev. Rev. Stat. (NRS) §199.280 (2003). The government reasoned that Hiibel had obstructed the officer in carrying out his duties under §171.123, a Nevada statute that defines the legal rights and duties of a police officer in the context of an investigative stop. Section 171.123 provides in relevant part:

 ”1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.

 . . . . .

 ”3. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.”

Hiibel was tried in the Justice Court of Union Township. The court agreed that Hiibel’s refusal to identify himself as required by §171.123 “obstructed and delayed Dove as a public officer in attempting to discharge his duty” in violation of §199.280. App. 5. Hiibel was convicted and fined $250. The Sixth Judicial District Court affirmed, rejecting Hiibel’s argument that the application of §171.123 to his case violated the Fourth and Fifth Amendments. On review the Supreme Court of Nevada rejected the Fourth Amendment challenge in a divided opinion. 118 Nev. 868, 59 P. 3d 1201 (2002). Hiibel petitioned for rehearing, seeking explicit resolution of his Fifth Amendment challenge. The petition was denied without opinion. We granted certiorari. 540 U. S. 965 (2003).

II

NRS §171.123(3) is an enactment sometimes referred to as a “stop and identify” statute. See Ala. Code §15-5-30 (West 2003); Ark. Code Ann. §5-71-213(a)(1) (2004); Colo. Rev. Stat. §16-3-103(1) (2003); Del. Code Ann., Tit. 11, §§1902(a), 1321(6) (2003); Fla. Stat. §856.021(2) (2003); Ga. Code Ann. §16-11-36(b) (2003); Ill. Comp. Stat., ch. 725, §5/107-14 (2004); Kan. Stat. Ann. §22-2402(1) (2003); La. Code Crim. Proc. Ann., Art. 215.1(A) (West 2004); Mo. Rev. Stat. §84.710(2) (2003); Mont. Code Ann. §46-5-401(2)(a) (2003); Neb. Rev. Stat. §29-829 (2003); N. H. Rev. Stat. Ann. §§594:2 and 644:6 (Lexis 2003); N. M. Stat. Ann. §30-22-3 (2004); N. Y. Crim. Proc. Law §140.50(1) (West 2004); N. D. Cent. Code §29-29-21 (2003); R. I. Gen. Laws §12-7-1 (2003); Utah Code Ann. §77-7-15 (2003); Vt. Stat. Ann., Tit. 24, §1983 (Supp. 2003); Wis. Stat. §968.24 (2003). See also Note, Stop and Identify Statutes: A New Form of an Inadequate Solution to an Old Problem, 12 Rutgers L. J. 585 (1981); Note, Stop-and-Identify Statutes After Kolender v. Lawson: Exploring the Fourth and Fifth Amendment Issues, 69 Iowa L. Rev. 1057 (1984).

Stop and identify statutes often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior in the course of investigatory stops. The statutes vary from State to State, but all permit an officer to ask or require a suspect to disclose his identity. A few States model their statutes on the Uniform Arrest Act, a model code that permits an officer to stop a person reasonably suspected of committing a crime and “demand of him his name, address, business abroad and whither he is going.” Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 344 (1942). Other statutes are based on the text proposed by the American Law Institute as part of the Institute’s Model Penal Code. See ALI, Model Penal Code, §250.6, Comment 4, pp. 392-393 (1980). The provision, originally designated §250.12, provides that a person who is loitering “under circumstances which justify suspicion that he may be engaged or about to engage in crime commits a violation if he refuses the request of a peace officer that he identify himself and give a reasonably credible account of the lawfulness of his conduct and purposes.” §250.12 (Tentative Draft No. 13) (1961). In some States, a suspect’s refusal to identify himself is a misdemeanor offense or civil violation; in others, it is a factor to be considered in whether the suspect has violated loitering laws. In other States, a suspect may decline to identify himself without penalty.

Stop and identify statutes have their roots in early English vagrancy laws that required suspected vagrants to face arrest unless they gave “a good Account of themselves,” 15 Geo. 2, ch. 5, §2 (1744), a power that itself reflected common-law rights of private persons to “arrest any suspicious night-walker, and detain him till he give a good account of himself … .” 2 W. Hawkins, Pleas of the Crown, ch. 13, §6, p. 130. (6th ed. 1787). In recent decades, the Court has found constitutional infirmity in traditional vagrancy laws. In Papachristou v. Jacksonville, 405 U. S. 156 (1972), the Court held that a traditional vagrancy law was void for vagueness. Its broad scope and imprecise terms denied proper notice to potential offenders and permitted police officers to exercise unfettered discretion in the enforcement of the law. See id., at 167-171.

The Court has recognized similar constitutional limitations on the scope and operation of stop and identify statutes. In Brown v. Texas, 443 U. S. 47, 52 (1979), the Court invalidated a conviction for violating a Texas stop and identify statute on Fourth Amendment grounds. The Court ruled that the initial stop was not based on specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity. See id., at 51-52. Absent that factual basis for detaining the defendant, the Court held, the risk of “arbitrary and abusive police practices” was too great and the stop was impermissible. Id., at 52. Four Terms later, the Court invalidated a modified stop and identify statute on vagueness grounds. See Kolender v. Lawson, 461 U. S. 352 (1983). The California law in Kolender required a suspect to give an officer ” ‘credible and reliable’ ” identification when asked to identify himself. Id., at 360. The Court held that the statute was void because it provided no standard for determining what a suspect must do to comply with it, resulting in ” ‘virtually unrestrained power to arrest and charge persons with a violation.’ ” Id., at 360 (quoting Lewis v. New Orleans, 415 U. S. 130, 135 (1974) (Powell, J., concurring in result)).

The present case begins where our prior cases left off. Here there is no question that the initial stop was based on reasonable suspicion, satisfying the Fourth Amendment requirements noted in Brown. Further, the petitioner has not alleged that the statute is unconstitutionally vague, as in Kolender. Here the Nevada statute is narrower and more precise. The statute in Kolender had been interpreted to require a suspect to give the officer “credible and reliable” identification. In contrast, the Nevada Supreme Court has interpreted NRS §171.123(3) to require only that a suspect disclose his name. See 118 Nev., at ___, 59 P. 3d, at 1206 (opinion of Young, C. J.) (“The suspect is not required to provide private details about his background, but merely to state his name to an officer when reasonable suspicion exists”). As we understand it, the statute does not require a suspect to give the officer a driver’s license or any other document. Provided that the suspect either states his name or communicates it to the officer by other means–a choice, we assume, that the suspect may make–the statute is satisfied and no violation occurs. See id., at ___, 59 P. 3d, at 1206-1207.

III

Hiibel argues that his conviction cannot stand because the officer’s conduct violated his Fourth Amendment rights. We disagree.

Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment. “[I]nterrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.” INS v. Delgado, 466 U. S. 210, 216 (1984). Beginning with Terry v. Ohio, 392 U. S. 1 (1968), the Court has recognized that a law enforcement officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Delgado, supra, at 216; United States v. Brignoni-Ponce, 422 U. S. 873, 881 (1975). To ensure that the resulting seizure is constitutionally reasonable, a Terry stop must be limited. The officer’s action must be ” ‘justified at its inception, and … reasonably related in scope to the circumstances which justified the interference in the first place.’ ” United States v. Sharpe, 470 U. S. 675, 682 (1985) (quoting Terry, supra, at 20). For example, the seizure cannot continue for an excessive period of time, see United States v. Place, 462 U. S. 696, 709 (1983), or resemble a traditional arrest, see Dunaway v. New York, 442 U. S. 200, 212 (1979).

Our decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops. See United States v. Hensley, 469 U. S. 221, 229 (1985) (“[T]he ability to briefly stop [a suspect], ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice”); Hayes v. Florida, 470 U. S. 811, 816 (1985) (“[I]f there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information”); Adams v. Williams, 407 U. S. 143, 146 (1972) (“A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time”).

Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.

Although it is well established that an officer may ask a suspect to identify himself in the course of a Terry stop, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer. See Brown, 443 U. S., at 53, n. 3. Petitioner draws our attention to statements in prior opinions that, according to him, answer the question in his favor. In Terry, Justice White stated in a concurring opinion that a person detained in an investigative stop can be questioned but is “not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest.” 392 U. S., at 34. The Court cited this opinion in dicta in Berkemer v. McCarty, 468 U. S. 420, 439 (1984), a decision holding that a routine traffic stop is not a custodial stop requiring the protections of Miranda v. Arizona, 384 U. S. 436 (1966). In the course of explaining why Terry stops have not been subject to Miranda, the Court suggested reasons why Terry stops have a “nonthreatening character,” among them the fact that a suspect detained during a Terry stop “is not obliged to respond” to questions. See Berkemer, supra, at 439, 440. According to petitioner, these statements establish a right to refuse to answer questions during a Terry stop.

We do not read these statements as controlling. The passages recognize that the Fourth Amendment does not impose obligations on the citizen but instead provides rights against the government. As a result, the Fourth Amendment itself cannot require a suspect to answer questions. This case concerns a different issue, however. Here, the source of the legal obligation arises from Nevada state law, not the Fourth Amendment. Further, the statutory obligation does not go beyond answering an officer’s request to disclose a name. See NRS §171.123(3) (“Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer”). As a result, we cannot view the dicta in Berkemer or Justice White’s concurrence in Terry as answering the question whether a State can compel a suspect to disclose his name during a Terry stop.

The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop. The reasonableness of a seizure under the Fourth Amendment is determined “by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate government interests.” Delaware v. Prouse, 440 U. S. 648, 654 (1979). The Nevada statute satisfies that standard. The request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop. The threat of criminal sanction helps ensure that the request for identity does not become a legal nullity. On the other hand, the Nevada statute does not alter the nature of the stop itself: it does not change its duration, Place, supra, at 709, or its location, Dunaway, supra, at 212. A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.

Petitioner argues that the Nevada statute circumvents the probable cause requirement, in effect allowing an officer to arrest a person for being suspicious. According to petitioner, this creates a risk of arbitrary police conduct that the Fourth Amendment does not permit. Brief for Petitioner 28-33. These are familiar concerns; they were central to the opinion in Papachristou, and also to the decisions limiting the operation of stop and identify statutes in Kolender and Brown. Petitioner’s concerns are met by the requirement that a Terry stop must be justified at its inception and “reasonably related in scope to the circumstances which justified” the initial stop. 392 U. S., at 20. Under these principles, an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop. The Court noted a similar limitation in Hayes, where it suggested that Terry may permit an officer to determine a suspect’s identity by compelling the suspect to submit to fingerprinting only if there is “a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime.” 470 U. S., at 817. It is clear in this case that the request for identification was “reasonably related in scope to the circumstances which justified” the stop. Terry, supra, at 20. The officer’s request was a commonsense inquiry, not an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence. The stop, the request, and the State’s requirement of a response did not contravene the guarantees of the Fourth Amendment.

 IV

Petitioner further contends that his conviction violates the Fifth Amendment’s prohibition on compelled self-incrimination. The Fifth Amendment states that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled. See United States v. Hubbell, 530 U. S. 27, 34-38 (2000).

Respondents urge us to hold that the statements NRS §171.123(3) requires are nontestimonial, and so outside the Clause’s scope. We decline to resolve the case on that basis. “[T]o be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U. S. 201, 210 (1988). See also Hubbell, 530 U. S., at 35. Stating one’s name may qualify as an assertion of fact relating to identity. Production of identity documents might meet the definition as well. As we noted in Hubbell, acts of production may yield testimony establishing “the existence, authenticity, and custody of items [the police seek].” Id., at 41. Even if these required actions are testimonial, however, petitioner’s challenge must fail because in this case disclosure of his name presented no reasonable danger of incrimination.

The Fifth Amendment prohibits only compelled testimony that is incriminating. See Brown v. Walker, 161 U. S. 591, 598 (1896) (noting that where “the answer of the witness will not directly show his infamy, but only tend to disgrace him, he is bound to answer”). A claim of Fifth Amendment privilege must establish

” ‘reasonable ground to apprehend danger to the witness from his being compelled to answer … . [T]he danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things,–not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.’ ” Id., at 599-600 (quoting Queen v. Boyes, 1 Best & S. 311, 321 (1861) (Cockburn, C. J.)).

As we stated in Kastigar v. United States, 406 U. S. 441, 445 (1972), the Fifth Amendment privilege against compulsory self-incrimination “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Suspects who have been granted immunity from prosecution may, therefore, be compelled to answer; with the threat of prosecution removed, there can be no reasonable belief that the evidence will be used against them. See id., at 453.

In this case petitioner’s refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it “would furnish a link in the chain of evidence needed to prosecute” him. Hoffman v. United States, 341 U. S. 479, 486 (1951). As best we can tell, petitioner refused to identify himself only because he thought his name was none of the officer’s business. Even today, petitioner does not explain how the disclosure of his name could have been used against him in a criminal case. While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him.

The narrow scope of the disclosure requirement is also important. One’s identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances. See Baltimore City Dept. of Social Servs. v. Bouknight, 493 U. S. 549, 555 (1990) (suggesting that “fact[s] the State could readily establish” may render “any testimony regarding existence or authenticity [of them] insufficiently incriminating”); Cf. California v. Byers, 402 U. S. 424, 432 (1971) (opinion of Burger, C. J.). In every criminal case, it is known and must be known who has been arrested and who is being tried. Cf. Pennsylvania v. Muniz, 496 U. S. 582, 601-602 (1990) (opinion of Brennan, J.). Even witnesses who plan to invoke the Fifth Amendment privilege answer when their names are called to take the stand. Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We need not resolve those questions here.

The judgment of the Nevada Supreme Court is

 Affirmed.

 LARRY D. HIIBEL, PETITIONER v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, HUMBOLDT COUNTY, et al.

 on writ of certiorari to the supreme court of nevada

 [June 21, 2004]

 Justice Stevens, dissenting.

 The Nevada law at issue in this case imposes a narrow duty to speak upon a specific class of individuals. The class includes only those persons detained by a police officer “under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime”1–persons who are, in other words, targets of a criminal investigation. The statute therefore is directed not “at the public at large,” but rather “at a highly selective group inherently suspect of criminal activities.” Albertson v. Subversive Activities Control Bd., 382 U. S. 70, 79 (1965).

Under the Nevada law, a member of the targeted class “may not be compelled to answer” any inquiry except a command that he “identify himself.”2 Refusal to identify oneself upon request is punishable as a crime.3 Presumably the statute does not require the detainee to answer any other question because the Nevada Legislature realized that the Fifth Amendment prohibits compelling the target of a criminal investigation to make any other statement. In my judgment, the broad constitutional right to remain silent, which derives from the Fifth Amendment’s guarantee that “[n]o person … shall be compelled in any criminal case to be a witness against himself,” U. S. Const., Amdt. 5,4 is not as circumscribed as the Court suggests, and does not admit even of the narrow exception defined by the Nevada statute.

“[T]here can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.” Miranda v. Arizona, 384 U. S. 436, 467 (1966). It is a “settled principle” that “the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes,” but “they have no right to compel them to answer.” Davis v. Mississipi, 394 U. S. 721, 727, n. 6 (1969). The protections of the Fifth Amendment are directed squarely toward those who are the focus of the government’s investigative and prosecutorial powers. In a criminal trial, the indicted defendant has an unqualified right to refuse to testify and may not be punished for invoking that right. See Carter v. Kentucky, 450 U. S. 288, 299-300 (1981). The unindicted target of a grand jury investigation enjoys the same constitutional protection even if he has been served with a subpoena. See Chavez v. Martinez, 538 U. S. 760, 767-768 (2003). So does an arrested suspect during custodial interrogation in a police station. Miranda, 384 U. S., at 467.

There is no reason why the subject of police interrogation based on mere suspicion, rather than probable cause, should have any lesser protection. Indeed, we have said that the Fifth Amendment’s protections apply with equal force in the context of Terry stops, see Terry v. Ohio, 392 U. S. 1 (1968), where an officer’s inquiry “must be ‘reasonably related in scope to the justification for [the stop's] initiation.’ ” Berkemer v. McCarty, 468 U. S. 420, 439 (1984) (some internal quotation marks omitted). “Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond.” Ibid. See also Terry, 392 U. S., at 34 (White, J., concurring) (“Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for arrest, although it may alert the officer to the need for continued observation”). Given our statements to the effect that citizens are not required to respond to police officers’ questions during a Terry stop, it is no surprise that petitioner assumed, as have we, that he had a right not to disclose his identity.

The Court correctly observes that a communication does not enjoy the Fifth Amendment privilege unless it is testimonial. Although the Court declines to resolve this question, ante, at 10-11, I think it clear that this case concerns a testimonial communication. Recognizing that whether a communication is testimonial is sometimes a “difficult question,” Doe v. United States, 487 U. S. 201, 214-215 (1988), we have stated generally that “[i]t is the ‘extortion of information from the accused,’ the attempt to force him ‘to disclose the contents of his own mind,’ that implicates the Self-Incrimination Clause,” id., at 211 (citations omitted). While “[t]he vast majority of verbal statements thus will be testimonial and, to that extent at least, will fall within the privilege,” id., at 213-214, certain acts and physical evidence fall outside the privilege.5 In all instances, we have afforded Fifth Amendment protection if the disclosure in question was being admitted because of its content rather than some other aspect of the communication.6

Considered in light of these precedents, the compelled statement at issue in this case is clearly testimonial. It is significant that the communication must be made in response to a question posed by a police officer. As we recently explained, albeit in the different context of the Sixth Amendment’s Confrontation Clause, “[w]hatever else the term ['testimonial'] covers, it applies at a minimum … to police interrogations.” Crawford v. Washington, 541 U. S. ___, ___ (2004) (slip op., at 33). Surely police questioning during a Terry stop qualifies as an interrogation, and it follows that responses to such questions are testimonial in nature.

 Rather than determining whether the communication at issue is testimonial, the Court instead concludes that the State can compel the disclosure of one’s identity because it is not “incriminating.” Ante, at 11. But our cases have afforded Fifth Amendment protection to statements that are “incriminating” in a much broader sense than the Court suggests. It has “long been settled that [the Fifth Amendment's] protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence.” United States v. Hubbell, 530 U. S. 27, 37 (2000). By “incriminating” we have meant disclosures that “could be used in a criminal prosecution or could lead to other evidence that might be so used,” Kastigar v. United States, 406 U. S. 441, 445 (1972)–communications, in other words, that “would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime,” Hoffman v. United States, 341 U. S. 479, 486 (1951). Thus, “[c]ompelled testimony that communicates information that may ‘lead to incriminating evidence’ is privileged even if the information itself is not inculpatory.” Hubbell, 530 U. S., at 38 (citing Doe, 487 U. S., at 208, n. 6).

Given a proper understanding of the category of “incriminating” communications that fall within the Fifth Amendment privilege, it is clear that the disclosure of petitioner’s identity is protected. The Court reasons that we should not assume that the disclosure of petitioner’s name would be used to incriminate him or that it would furnish a link in a chain of evidence needed to prosecute him. Ante, at 12-13. But why else would an officer ask for it? And why else would the Nevada Legislature require its disclosure only when circumstances “reasonably indicate that the person has committed, is committing or is about to commit a crime”?7 If the Court is correct, then petitioner’s refusal to cooperate did not impede the police investigation. Indeed, if we accept the predicate for the Court’s holding, the statute requires nothing more than a useless invasion of privacy. I think that, on the contrary, the Nevada Legislature intended to provide its police officers with a useful law enforcement tool, and that the very existence of the statute demonstrates the value of the information it demands.

A person’s identity obviously bears informational and incriminating worth, “even if the [name] itself is not inculpatory.” Hubbell, 530 U. S., at 38. A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases. And that information, in turn, can be tremendously useful in a criminal prosecution. It is therefore quite wrong to suggest that a person’s identity provides a link in the chain to incriminating evidence “only in unusual circumstances.” Ante, at 12.

The officer in this case told petitioner, in the Court’s words, that “he was conducting an investigation and needed to see some identification.” Ante, at 2. As the target of that investigation, petitioner, in my view, acted well within his rights when he opted to stand mute. Accordingly, I respectfully dissent.

LARRY D. HIIBEL, PETITIONER v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, HUMBOLDT COUNTY, et al.

on writ of certiorari to the supreme court of nevada

[June 21, 2004]

Justice Breyer, with whom Justice Souter and Justice Ginsburg join, dissenting.

Notwithstanding the vagrancy statutes to which the majority refers, see ante, at 4-5, this Court’s Fourth Amendment precedents make clear that police may conduct a Terry stop only within circumscribed limits. And one of those limits invalidates laws that compel responses to police questioning.

In Terry v. Ohio, 392 U. S. 1 (1968), the Court considered whether police, in the absence of probable cause, can stop, question, or frisk an individual at all. The Court recognized that the Fourth Amendment protects the ” ‘right of every individual to the possession and control of his own person.’ ” Id., at 9 (quoting Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891)). At the same time, it recognized that in certain circumstances, public safety might require a limited “seizure,” or stop, of an individual against his will. The Court consequently set forth conditions circumscribing when and how the police might conduct a Terry stop. They include what has become known as the “reasonable suspicion” standard. 392 U. S., at 20-22. Justice White, in a separate concurring opinion, set forth further conditions. Justice White wrote: “Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.” Id., at 34.

About 10 years later, the Court, in Brown v. Texas, 443 U. S. 47 (1979), held that police lacked “any reasonable suspicion” to detain the particular petitioner and require him to identify himself. Id., at 53. The Court noted that the trial judge had asked the following: “I’m sure [officers conducting a Terry stop] should ask everything they possibly could find out. What I’m asking is what’s the State’s interest in putting a man in jail because he doesn’t want to answer . . . .” Id., at 54 (Appendix to opinion of the Court) (emphasis in original). The Court referred to Justice White’s Terry concurrence. 443 U. S., at 53, n. 3. And it said that it “need not decide” the matter. Ibid.

Then, five years later, the Court wrote that an “officer may ask the [Terry] detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond.” Berkemer v. McCarty, 468 U. S. 420, 439 (1984) (emphasis added). See also Kolender v. Lawson, 461 U. S. 352, 365 (1983) (Brennan, J., concurring) (Terry suspect “must be free to . . . decline to answer the questions put to him”); Illinois v. Wardlow, 528 U. S. 119, 125 (2000) (stating that allowing officers to stop and question a fleeing person “is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning”).

This lengthy history–of concurring opinions, of references, and of clear explicit statements–means that the Court’s statement in Berkemer, while technically dicta, is the kind of strong dicta that the legal community typically takes as a statement of the law. And that law has remained undisturbed for more than 20 years.

There is no good reason now to reject this generation-old statement of the law. There are sound reasons rooted in Fifth Amendment considerations for adhering to this Fourth Amendment legal condition circumscribing police authority to stop an individual against his will. See ante, at 1-6 (Stevens, J., dissenting). Administrative considerations also militate against change. Can a State, in addition to requiring a stopped individual to answer “What’s your name?” also require an answer to “What’s your license number?” or “Where do you live?” Can a police officer, who must know how to make a Terry stop, keep track of the constitutional answers? After all, answers to any of these questions may, or may not, incriminate, depending upon the circumstances.

Indeed, as the majority points out, a name itself–even if it is not “Killer Bill” or “Rough ‘em up Harry”–will sometimes provide the police with “a link in the chain of evidence needed to convict the individual of a separate offense.” Ante, at 12-13. The majority reserves judgment about whether compulsion is permissible in such instances. Ante, at 13. How then is a police officer in the midst of a Terry stop to distinguish between the majority’s ordinary case and this special case where the majority reserves judgment?

The majority presents no evidence that the rule enunciated by Justice White and then by the Berkemer Court, which for nearly a generation has set forth a settled Terry-stop condition, has significantly interfered with law enforcement. Nor has the majority presented any other convincing justification for change. I would not begin to erode a clear rule with special exceptions.

 I consequently dissent.

 FOOTNOTES

 Footnote 1

Nev. Rev. Stat. §171.123(1) (2003).

Footnote 2

§171.123(3).

Footnote 3

In this case, petitioner was charged with violating §199.280, which makes it a crime to “willfully resis[t], dela[y] or obstruc[t] a public officer in discharging or attempting to discharge any legal duty of his office.” A violation of that provision is a misdemeanor unless a dangerous weapon is involved.

Footnote 4

The Fifth Amendment’s protection against compelled self-incrimination applies to the States through the Fourteenth Amendment’s Due Process Clause. See Malloy v. Hogan, 378 U. S. 1, 6 (1964).

Footnote 5

A suspect may be made, for example, to provide a blood sample, Schmerber v. California, 384 U. S. 757, 765 (1966), a voice exemplar, United States v. Dionisio, 410 U. S. 1, 7 (1973), or a handwriting sample, Gilbert v. California, 388 U. S. 263, 266-267 (1967).

Footnote 6

See Pennsylvania v. Muniz, 496 U. S. 582, 598-599 (1990) (respondent’s answer to the “birthday question” was protected because the “content of his truthful answer supported an inference that his mental faculties were impaired”); Doe v. United States, 487 U. S. 201, 211, n. 10 (1988) (“The content itself must have testimonial significance”); Fisher v. United States, 425 U. S. 391, 410-411 (1976) (“[H]owever incriminating the contents of the accountant’s workpapers might be, the act of producing them–the only thing which the taxpayer is compelled to do–would not itself involve testimonial self-incrimination”); Gilbert, 388 U. S., at 266-267 (“A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying characteristic outside its protection”); United States v. Wade, 388 U. S. 218, 223 (1967) (“[I]t deserves emphasis that this case presents no question of the admissibility in evidence of anything Wade said or did at the lineup which implicates his privilege”).

Footnote 7

Nev. Rev. Stat. §171.123(1) (2003). The Court suggests that furnishing identification also allows the investigating officer to assess the threat to himself and others. See ante, at 8. But to the extent that officer or public safety is immediately at issue, that concern is sufficiently alleviated by the officer’s ability to perform a limited patdown search for weapons. See Terry v. Ohio, 392 U. S. 1, 25-26 (1968).

EDITORIAL

New York Times

 In a long series of valedictory speeches and interviews, President Bush and Vice President Dick Cheney have been crowing about Guantánamo Bay, secret prisons and abusive interrogations, claiming they met the highest legal standards and that no prisoner had been tortured. Fortunately, the truth broke through the noise, in the words of some of the very people ordered to carry out the policies.

 In an interview in The Washington Post, Susan Crawford, the retired judge who runs the military tribunals at Guantánamo, said that harsh interrogation methods had endangered the life of Mohammed al-Qahtani, a Saudi national accused of planning to take part in the 9/11 attacks. Authorized by then-Defense Secretary Donald Rumsfeld, they included sustained isolation, nudity and prolonged exposure to the cold.

 “We tortured Qahtani,” Judge Crawford said, adding that she was therefore unable to prosecute a man who seemed to pose a real threat to the United States.

Judge Crawford was not the only one speaking out. Major David Frakt of the Air Force Reserve, who was assigned to defend another Guantánamo prisoner, told MSNBC’s Rachel Maddow that he and all the other defense lawyers in the system consider the tribunals “unfair, rigged” and unconstitutional. He noted that his client’s prosecutor resigned to protest the lack of evidence in the case.

That is the real nature of Mr. Bush’s grotesque legacy: abuse and torture at an outlaw prison where hundreds of men — many of whom did nothing — have been held for years without real evidence or charges. And truly dangerous men were treated so badly that it may be impossible to bring them to justice.

It will be hard enough to close down Guantánamo as Barack Obama has vowed to do, but the legal burdens Mr. Bush is dumping on his successor are much greater.

The appalling Military Commissions Act of 2006, railroaded through Congress, must be repealed. Interrogation rules that respect American values and laws and the Geneva Conventions must be set for all government agencies, including the intelligence agencies.

And there is the profound question of whether the new administration should prosecute those who tortured and abused prisoners — and those who ordered them to do it. Judge Crawford’s legal finding that torture occurred adds a new complication, since a treaty obliges the United States to investigate such allegations.

We have heard a lot of talk about how the country needs to look forward and not backward. We certainly would like to forget the horrors of the last eight years. But you cannot fix something before you know exactly how it is broken. The clandestine system Mr. Bush and Mr. Cheney have built will not give up its secrets easily.

To ensure that the abuses stop, Mr. Obama and his administration will have to work hard to find out all that has happened. They will have to locate and override all of the policy memos, directives and executive orders that have redefined and condoned torture and other abuses. Guantánamo is the place to begin.

 The timetable: Mr. Obama is expected to announce as early as Wednesday that he is beginning the process of shutting Guantánamo. We hope he sets a target date. That may make it easier to persuade other governments to agree to accept some prisoners — one of the difficult challenges ahead. But we do not agree with critics who insist that date must fall within his first 100 days.

This page called early and often for closing Guantánamo. But we recognize that this is going to be very hard work.

 Sorting out the inmates: Mr. Obama’s lawyers will have to review every file, most of which the Bush administration has refused to turn over to any authority, including Congress. We know from bitter experience that the Bush administration’s judgment is worthless when it comes to what these prisoners may have done, how they have been treated and what justice they should face.

Just last week, Mr. Cheney claimed that the interrogation of prisoners like Khalid Shaikh Mohammed, believed to be the planner of 9/11, who was tortured by waterboarding, allowed the United States to capture a “very impressive” list of Al Qaeda leaders in 2003. If that is true, Mr. Obama needs to know who they are, where they are, and what was done to them in the last five years.

A blueprint: Senator Dianne Feinstein, the new head of the Intelligence Committee, has a bill for closing Guantánamo that Mr. Obama should embrace. It sets a one-year deadline and requires that every prisoner either be charged and tried in United States federal court; transferred for trial by an international tribunal under United Nations authority; returned to the custody of the government of their homeland, if that government does not abuse and torture prisoners; held as a prisoner of war; or, simply, released.

The separate system of tribunals created by the military commissions act must be abolished. They are a mockery of American justice, and utterly unnecessary.

It was extremely encouraging to hear Eric Holder, Mr. Obama’s choice for attorney general, say at his confirmation hearing on Thursday that the new administration is open to trying prisoners in the United States. It is appalling that an attorney general nominee has to say he respects the law, but such is the Bush legacy.

The real bad guys: After the prisoners are sorted out, Mr. Bush’s egregiously bad judgment leaves all Americans with a huge problem. The abuses authorized by top Bush officials, and so gleefully defended by Mr. Cheney in particular in the last few weeks, create the possibility that men like Mohammed al-Qahtani and Khalid Shaikh Mohammed will never be able to face justice in a real courtroom.

Mr. Obama’s team will have to come up with a solution that does not set such men free. We are not sure what it should be, but there is one unacceptable choice: creating a new detentions law that would allow them held without trial. That would merely compound Mr. Bush’s catastrophically bad choices.

Interrogations: The 2006 military tribunals law bound military interrogators to the Army field manual’s rules, which conform with the Geneva Conventions — unlike Mr. Bush’s policies. But, at Mr. Bush’s insistence, the bill carved out an exemption that allowed intelligence agencies to go on hiring civilian interrogators and to engage in practices that are clearly immoral and illegal. Ms. Feinstein’s bill would eliminate the loophole on how prisoners are treated and ban the use of civilian interrogators.

We were glad to hear Mr. Holder state that the Obama administration considers the Geneva Conventions binding. But we wish he had been more clear on a solution, beyond calling the Army field manual a “good start” for interrogation rules in C.I.A. prisons. We also were unclear from his answers whether Mr. Obama has decided, as he should, to ban civilian interrogators.

Mr. Holder unequivocally declared waterboarding to be torture, which his predecessors would not do. But this is not just about waterboarding. Other practices, like forced nudity, prolonged isolation, and extremes of heat and cold, are abuses under the same laws and treaties that prohibit torture. And Judge Crawford reminded us that torture is not necessarily just one terrible act. In the Qahtani case, she said: “This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive.”

C.I.A. prisons: We have never heard a convincing explanation for why the Central Intelligence Agency needs its own network of prisons beyond the reach of law, in undisclosed locations. If there is a good reason, we hope this administration will explain it. We are skeptical, and we urge Mr. Obama to support Ms. Feinstein’s bill, which would require the C.I.A. to report all detainees to the International Committee of the Red Cross.

We recognize that this is a daunting agenda, and that to succeed, Mr. Obama’s White House, Justice Department and Pentagon will also have to rebuild demoralized legal divisions where professionals were replaced with apparatchiks whose mission was to twist the law to justify their masters’ decisions.

This work is essential to restoring the rule of law. It is essential to restoring this country’s reputation around the world. And it is essential to restoring Americans’ faith in themselves and in their government. That is the only way to move forward.