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.