The Rhetoric of Torture - Part II

Continued from Part I

Using Alan Dershowitz' concept of a torture warrant to overcome the "ticking time bomb" argument raises important ethical questions about how we seek to persuade others regarding torture. Is it permissible for one who is wholly opposed to torture to utilize Dershowitz’ warrant as a rhetorical tool against advocates of a wider policy of torture, even if it means implicitly accepting torture, at least for argument’s sake, in certain cases? Whether Dershowitz’ torture warrant is advocated as an actual policy or as a rhetorical device, “there is, of course, a downside: legitimating a horrible practice that we all want to see ended or minimized” (Dershowitz 267). Though this danger clearly exists if the policy is implemented, does it also exist even at the rhetorical level? Do we debase human dignity by suggesting, even if only for argument’s sake, that torture should be legal? Do we desensitize ourselves to its horrors by debating it like we might any other policy matter?

Social theorist Slavoj Zizek believes such debate is indeed dangerous, contending that “essays… which do not advocate torture outright, [but] simply introduce it as a legitimate topic of debate, are even more dangerous than an explicit endorsement of torture” (quoted in Levinson 30). Likewise, in his essay, “The Prohibition on Torture and the Limits of the Law,” Oren Gross argues that “even attempting to conduct a rational conversation about torture may be deemed wrong, as it can undermine the commitment to a general absolute prohibition” (230). However, both Dershowitz and Scarry appear to argue just the opposite, that “it is generally more possible to end a questionable practice when it is done openly rather than covertly,” and that we ought “relentlessly to document instances of torture that have taken place, to make a public record, and through that record, to bring public pressure to bear on stopping the acts of torture” (270, 288).

There is a further ethical question posed by Dershowitz’ warrant: is the nature of evil such that we can tacitly accept it, while we work to limit it? Or does supporting something like a torture warrant amount to assisting in that evil? Is Dershowitz’ distinction between the fact “that torture is being practiced” and his claim “that [torture’s] use should be reduced” a valid one (Dershowitz 274)? Or is the wrongdoing of others – the fact that torture will be done – simply a smokescreen legitimizing that for which few people would directly argue – the legalization of torture? Once again, the issue at stake is not Dershowitz’ intention, but the rhetorical possibilities of his argument. From here one might reasonably argue that we should also focus on learning to torture more efficiently, so we have to do less of it; but is torturing well (in a functional sense) the same as doing good (in the moral sense)? Do we want to walk down this Machiavellian road, potentially conflating these two?

To some, this concern with the mechanics and ethics of the rhetoric of torture may seem like intellectual gymnastics, a contorted and even impressive process, but of little practical concern. If, however, ideas have consequences, if people take seriously the things we say – and why are we saying them, if not on the assumption that someone is listening? – we must be willing to think of our arguments as more than parlor games.


Hat tip to James Burk, who made me write this essay for his War, Democracy & Society course.

The Rhetoric of Torture - Part I

Arguments may be considered in two ways: philosophically and rhetorically. That is to say, they may be analyzed either with regard to their pursuit of the truth of a given matter, or with regards to their persuasive qualities. While the problem of torture is usually considered philosophically, the essays of Torture: A Collection, edited by Sanford Levinson, can also be considered from the rhetorical perspective. How are arguments about torture made? Perhaps most notable in this regard is Alan Dershowitz’ suggestion in “Tortured Reasoning,” that warrants should be issues for the application of torture, a provocative and highly contentious argument which makes regular use of the ticking bomb scenario. Elaine Scarry, in her essay, “Five Errors in the Reason of Alan Dershowitz” seeks to refute Dershowitz’ argument in favor of such a warrant; in so doing, she too considers the ticking bomb scenario, even though she contends that “an accurate understanding of torture cannot… be arrived at through the ticking bomb argument” (281n). This essay seeks to understand some of the scenario’s uses as a rhetorical device, the ways in which it may be rhetorically undermined by Dershowitz’ torture warrant, and some of the ethical difficulties in arguing about torture.

Dershowitz, a self-described “civil libertarian” begins his proposal for a torture warrant with the ticking bomb scenario, “in which saving a city from a nuclear, chemical, or biological bomb might depend on torturing the terrorist who placed it there or knew where it was hidden” (Dershowitz 258, Scarry 281). He does not argue that torture ought to be used in this situation, but writes, “I… believe that it would certainly be employed if we ever experienced an imminent threat of mass casualty biological, chemical or nuclear terrorism” (257). His goal, then, is to provide some sort of limitation and transparency for an undesirable practice which will inevitably take place.

Though Dershowitz himself does not say it outright, his torture warrant proposal could be used to call the bluff of many torture advocates. The proponents of torture see in the ticking bomb scenario a powerful rhetorical tool: few people would be willing to trade the lives of thousands of innocents simply to uphold the human dignity of a single terrorist. Though torture advocates rarely state as much, the implied argument is that if torture is permissible in extremis, it should be accepted generally, even in less extreme cases. Stated so baldly, the argument’s poor reasoning is clear; however, when presented in a more subtle and emotive way, the ticking bomb scenario makes a powerful case, even for the broad use of torture. But Dershowitz’ warrant threatens this line of argumentation by conceding the permissibility of torture in extremis, while still insisting upon judicial review for all instances, great or small. Dershowitz’ sidesteps the torture advocates’ strongest case – the ticking bomb scenario – by granting it, allowing him to then confront far more dubious applications of torture, “the thousands of cases that actually occur,” unlike the once-in-a-lifetime ticking bomb scenario (Scarry 282). As the Supreme Court of Israel notes, “there are [those] who argue that even if it is perhaps acceptable to employ physical means in most exceptional ‘ticking time bomb’ circumstances, these methods are in practice used even in absence of the ‘ticking time bomb’ conditions” (169). Dershowitz’ warrant would force us to take closer note the distinction between such cases.

I must repeat: this rhetorical use of Dershowitz’ torture warrant to undermine the ticking bomb scenario is a potential interpretation, and not explicitly in his essay. However, as Aristotle points out, rhetoric is not so much about making persuasive arguments as it is about finding the persuasive qualities in a given situation. The makings of good rhetoric are here to be found. Moreover, Derschowitz’ freely claims that his goal is to “provoke debate,” so considering his suggested torture warrant as a rhetorical thought experiment rather than a literal policy proposal is not entirely out of character (267).

Continued tomorrow in Part II...