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...