Mar 062003

There has been considerable discussion of the ethics of police torture in the blogosphere without a single invocation of the seminal American text on the subject, a work with which all of these distinguished ethicists are doubtless familiar. I refer, of course, to Dirty Harry.

That famous torture scene on the football field has its troubling aspects. Callahan makes a point of ordering his partner, “Too Much Linguine” DiGiorgio, out of the stadium: “Go out and get some air, Fatso.” He knows he’s about to cross the line. He doesn’t want to make DiGiorgio complicit, but he doesn’t want witnesses either.

It’s also no certainty that the man they’re chasing is even the killer, although it’s highly probable. Nobody has had a good enough look at him to provide a physical description, and the only positive ID they have is from the ER doctor who treated his stab wound. It’s conceivable that someone else could show up at a big city hospital with the same sort of wound at the same time. But this is more than good enough for Callahan.

Callahan is also quite sure the girl, whose life he’s supposed to be interested in saving, is already dead. He tells the Mayor and the Police Chief so in an earlier scene, and Scorpio confirms his hunch by telling him in the bagman scene in the park that “I’ve changed my mind. I’m going to let her die. I just wanted you to know that.” And in fact the girl is dead. Callahan tortures Scorpio because he enjoys torturing criminals. In the famous bank robbery scene — “six shots, or only five?” — he fires the empty at the robber’s head only partly because the robber asks him to (“I gots to know”). Mostly he does it for jollies. If you doubt me take a good look at the grin on his face when the gun clicks.

Callahan does manage to discover the murder weapon (in an illegal search) and the location of the dead girl, so in a certain sense the torture is effective. In the long run, however, it proves disastrous. Callahan saunters into the District Attorney’s office the next morning expecting a hero’s welcome; instead he is informed that Scorpio isn’t going to prosecuted.

DA: You’re lucky I’m not indicting you for assault with intent to commit murder.
Callahan (doing classic Eastwood slow burn): What?!
DA: Where the hell does it say you’ve got a right to kick down doors, torture suspects, deny medical attention and legal counsel. Where have you been? Does Escobedo ring a bell? Miranda? I mean, you must have heard of the Fourth Amendment. What I’m saying is, that man had rights.
Callahan: Well, I’m all broken up about that man’s rights.
DA: You should be. I’ve got news for you, Callahan. As soon as he’s well enough to leave the hospital, he walks.
Callahan: What are you talking about?
DA: He’s free.
Callahan: You mean you’re letting him go?
DA: We have to, we can’t try him.
Callahan: And why is that?
DA: Because I’m not wasting a half a million dollars of the taxpayer’s money on a trial we can’t possibly win. The problem is, we don’t have any evidence.
Callahan: Evidence? What the hell do you call that? (He gestures toward Scorpio’s weapon on a side table.)
DA: I call it nothing, zero.
Callahan: Are you trying to tell me that Ballistics can’t match the bullet up to this rifle?
DA: It doesn’t matter what Ballistics can do. This rifle might make a nice souvenir. But it’s inadmissible as evidence.
Callahan: And who says that?
DA: It’s the law.
Callahan: Well then, the law is crazy.

Also in attendance is a Judge Bannerman, a professor of constitutional law — at Berkeley, naturally, which provokes, in me at least, some residual sympathy for Callahan. Bannerman summarizes the matter dryly:

The search of the suspect’s quarters was illegal. Evidence obtained thereby, such as that hunting rifle, for instance, is inadmissible in court. You should have gotten a search warrant. I’m sorry, but it’s that simple…The court would have to recognize the police officer’s legitimate concern for the girl’s life, but there is no way they can possibly condone police torture. All evidence concerning the girl — the suspect’s confession, all physical evidence — would have to be excluded…

Now, the suspect’s rights were violated, under the Fourth and Fifth and probably the Sixth and Fourteenth Amendments. Without the evidence of the gun and the girl, I couldn’t convict him of spitting on the sidewalk.

So is Callahan justified in torturing Scorpio? Legally, no way. He scotches a case that the State had a good chance of making. Morally, unclear. Part of his motive is to try to save the girl, unlikely as that is, but part of it is sadism. The movie doesn’t approve torture by any means, despite its reputation. Eastwood himself clearly wanted a chance to clean up Callahan’s act: the first sequel, Magnum Force, casts police vigilantes as the villains, against whom Callahan stands for law, order, and proper police procedure. (It is unsatisfactory for this very reason, among others.) If arch-badass Clint Eastwood is queasy about police torture, I’m not surprised that mild-mannered law professor Eugene Volokh is too.

(Update: Arthur Silber has some well-considered thoughts — on torture, not Dirty Harry.)

  10 Responses to “I Know Just the Cop for Khalid Shaikh Mohammed”

  1. Aaron, I love your blog’s sudden turn into the pop culture nabe. It has been too long since I’ve seen "Dirty Harry" for me to comment (and perhaps too long, period), but it’s worth noting that television’s best show this season (aside from "West Wing," which remains so far ahead of anything else that it’s barely worth commenting on anymore) is "The Shield" on FX, which is all about a dirty cop who might just have a heart of gold, or might just be a scumbag. Great writing, worth watching.

  2. Dr. Volokh is dishonest in this matter when he says he has no answer, as are all who even bring up the ethical/legal issues in this case. The case is so exceptional such issues simply have no force, nor should they.

    To see for yourself just how dishonest it is to bring up the ethical/legal issue here, consider the following hypothetical:

    Your 8-year-old daughter whom you love dearly has just been kidnapped. Kidnapper calls, and says he’s buried your daughter alive in a coffin with oxygen for only three hours. He tells you to come up with $1M in that time, or she’s dead.

    FBI has traced the call, and 1 hour later they nab the guy. They tell you he won’t divulge where he’s buried your daughter, but not to worry because they’re going to torture him painfully by time-proven methods to get the information needed. He’ll probably die from the torture, but not before he divulges your daughter’s whereabouts.

    Is there any question here? Would there be any question for even Eugene Volokh were he the father?

    The answer is: There would be no question. There’s not a father living who would even so much as think of things ethical or legal in such a circumstance. "Torture the son-of-a-bitch!" would be the instant decision in every case, and decided without a moment’s hesitation.

    So what’s the question in the instant case of the Islamist pig who *for certain* has information that can save dozens, perhaps hundreds of dozens of lives?

    There is no question. None whatsoever; for you, for me, for the country, even for Eugene Volokh.

    Period, full stop.


  3. Michael: don’t worry, I’ll be back to dry highbrow stuff soon.

    AC: I don’t agree that your hypo is dispositive. Why are the father’s feelings the only relevant consideration?

    Even if all fathers would react as you say, you have established only that fathers with kidnapped daughters who are running out of oxygen should not determine police practice.

  4. ACD speaks the truth, but Aaron wants an argument for it. Here’s one. The criminals in question do not deserve to be spared from torture because they are moral monsters. Moral monsters are thoroughly evil. Thoroughly evil people have no moral rights. That’s the premise, and it is close enough to a tautology.

    Aaron has legal concerns, and I do, too. If there is an argument that torturing people known to be moral monsters will lead to the torture of people not known, but merely suspected, to be moral monsters, then we have to reconsider. Depending on the probability of the causal link, we might be morally obligated to respect a known moral monster’s legal right not to be tortured on the grounds that otherwise eventually innocents will be tortured.

  5. I will leave the "legal question" aside except to remark that what you call a legal question is really a moral one as well. But consider another hypo. Let’s say there’s no useful information to be obtained, as is arguably the case in Dirty Harry, and the policeman is merely torturing the moral monster for his own pleasure. Is it still OK then?

  6. Aaron: You’ve missed the principle animating my hypo.

    First, as I thought I made clear, I wasn’t responding to the Dirty Harry case, but to Volokh’s saying he has no answer in the case at issue (i.e., the Islamist pig). His answer was a dishonest one. Just as in the case of the kidnapped little girl, *everyone* — including a Chomsky-type lunatic — has the answer: Torture the son-of-a-bitch!

    More generally:

    The *legal* principle at work is: If the law doesn’t provide for exceptional cases, exceptional cases may require *breaking* the law. Whoever breaks the law to meet the exceptional case might have to stand to defend his actions after the fact, and if the defense is unsatisfactorily mitigating, be punished, but that’s a separate question that doesn’t enter into the decision to break the law in the first place.

    In any event, one cannot argue general legal principles based on exceptional cases, so your objection here is moot.

    The *moral* principle in such a case I trust needs no elaboration as it’s clear as clear can be.

    The case of the Islamist pig is one of those very rare instances where the end justifies the means — always and unequivocally.


  7. I wrote above: "The case of the Islamist pig is one of those very rare instances where the end justifies the means — always and unequivocally."

    That should have read: "Just as in the case of the kidnapped little girl, the case of the Islamist pig is one of those very rare instances where the end justifies the means — always and unequivocally."



  8. Inflicting pain on one who has inflicted great suffering on others (like a sadistic murderer)is both just and tremendously gratifying. The State, however, must never be permitted to do so under any circumstances. The information gained from torture is notoriously unreliable, anyway, and there are other methods. The State must be limited to the kinds of criminal punishments which are both uniform and proportionate. This, in itself, excludes the possibility of torture. As an agent of the State, Harry should never have done what he did–he should, indeed, have been drummed off the force.

    I also agree that he needed more evidence of guilt.

    But, the pleasure from seeing some horrible killer suffer a bit is perfectly natural–and healthy.

    Price of .357 Magnum? $1,000. The look of pain on dirtbag’s face? Priceless.

  9. Aaron wonders whether it is permissible to torture known moral monsters merely for satisfaction. It is, and here’s the reason: they have no moral rights, for the reason I gave above: you forfeit your moral rights to the extent that you do evil. At absolute evil, you have no rights. This puts the burden of proof on the one who claims that there is a baseline right that can’t be alienated no matter how evil the agent. I’ve never heard a good argument for such basline right. If killing one merits death, killing 3,000 or 60 million merits much more severe punishment; it is wrong not to deliver appropriate punishment.

    On the other hand, if it could be shown that torturing the monster merely for satisfaction was detrimental to the torturer’s character, hardening him and making him more disposed to be callous to innocents, then that reason might override.

    Deterrence is also a good argument here. Make would-be moral monsters think twice when they see that the unspeakable awaits them.

  10. My position is probably closest to Jim V’s. It’s fine to torture monsters — I wouldn’t enjoy it personally, which must speak to my bad character — but not fine to give the State the power to do so.

    I agree with all my interlocutors that moral monsters like Khalid and the Scorpio killer have forfeited their rights.

    I can even imagine, as AC posits, that it might be right for a State agent to torture someone provided he were willing to take the consequences, which should include, at the least, losing his job as a State agent. (Callahan does toss his badge into the bay, after all.) Yet this is unsatisfactory for the reason Volokh pointed out: it smacks of the pacifist who can afford to reject violence because he lives in a civilized society and has an army to do his fighting for him. It’s hypocritical, in other words. But sometimes there are worse things than hypocrisy.

 Leave a Reply

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>