&gt; the right to not speak is protected by the 5th amendment<p>No, it&#x27;s not.  The right not to <i>incriminate yourself</i> is protected by the 5th amendment.  People are subpoenaed and forced to speak all the time.  That&#x27;s why Apple isn&#x27;t making <i>that</i> argument.  (They do have a 5th amendment argument too, but it&#x27;s not based on self-incrimination.)<p>&gt; If you&#x27;re an &quot;enemy combatant,&quot; you&#x27;re sitting in somewhere in Iraq or Afghanistan<p>It has never been put to the test (because the scenario is pretty unrealistic) but do you really think that if a U.S. citizen on U.S. soil made a credible claim to have planted a nuke somewhere in NYC, that the government would not mount an argument that the Constitution allows them to waterboard that person to get them to reveal the location of the bomb?  And that they might win?