A right isn't just something that's good, something to be maximized or traded. That's the role of an interest. The constraints on behavior that a right imposes, if it is to be significant at all, must be inviolable in a way constraints imposed by mere interests are not. But this saves the significance of rights at the cost of their existence; if the constraints imposed by rights are inviolable, then there just aren't any rights.
The Senate Intelligence committee released their report this week on the CIA's use of "enhanced interrogation techniques." Unsurprisingly, the techniques used include some pretty repugnant things. Let's take water-boarding as an example.
When one is water-boarded, one is made to feel as if one is drowning and to experience the kind of panic that this entails. This sort of thing would not be justified as a means of punishing merely suspected terrorists or associates of terrorists, nor as a means of deterring would-be terrorists. Even if it were justified for these purposes, these are not the purposes for which it is used.
It has been used to gather information. There's strong evidence that information gathered in this way is not reliable, but for the sake of discussion, let's assume that such information is useful. Let's say, to use a tried and true thought experiment, that:
A terrorist has planted a ticking nuclear time bomb in Chicago, we know not where. Unfortunately, we've only been able to apprehend an associate of the terrorist.
We have very good reason to believe that this associate knows the location of the time bomb. However, the associate is unwilling to share that information for some reason. We are now considering the use of water-boarding to extract the information and save millions of lives.
If the police were to water-board a friend of a pick-pocket because he knows where the pick-pocket is hiding-out but is unwilling to tell the police, the outcry over the friend's violated rights would be deafening. And, indeed, many people object universally and as a matter of principle to the use of techniques like this. However, the position that it would be morally impermissible to torture, and let's be honest and call water-boarding what it is, an innocent person no matter what the consequences is implausible.
It is instructive to explore the logical contortions that defenders of rights qua inviolable constraints put themselves through to avoid this implausible commitment of their view. Michael Walzer argues that there are some rules of war that are inviolable; that it is always morally impermissible, for example, to intentionally target non-combatants. Applied to our case, his reasoning looks like this:
Should I wager this determinate crime (torturing an innocent person) against that immeasurable evil (the death of millions of innocent people)? Obviously, if there is some other way of avoiding the evil or even a reasonable chance of another way, I must wager differently or elsewhere. But I can never hope to be sure; a wager is not an experiment. Even if I wager and win, it is still possible that I was wrong, that my crime was unnecessary to victory (avoiding the death of millions). But I can argue that I studied the case as closely as I was able, took the best advice I could find, sought out available alternatives. And if all of this is true, and my perception of the evil and imminent danger is not hysterical or self-serving, then surely I must wager. There is no option; the risk otherwise is too great. My own action is determinate, of course, only as to its direct consequences, while the rule that bars such acts if founded on a conception of rights that transcends all immediate considerations. It arises out of our common history; it hold the key to our common future. But I dare say that our history will be nullified and our future condemned unless I accept the burdens of criminality here and now. (Walzer 2006,259-60)
In one breath, Walzer asserts that there is no option, that the crime (and by crime he does not necessarily mean legal crime but rather infraction, rights violation) must be committed because the alternative is too terrible, while in the next making it clear that a right is not something that comes and goes, that is violable here and inviolable there.
There are two things that he might mean by "must" here. First, he might mean that, as a matter of human psychology, torturing the innocent person is inevitable. But if this is so, then it would also be morally permissible since a moral code that forbids us from doing that which we literally must do is a defective moral code.
Second, he might mean that we are morally required to torture the innocent person. But it surely seems that if an action must be committed then it is morally permissible to commit that action. This is what Walzer here seems to be denying.
This discussion does arise in section of the book devoted to moral dilemmas. A moral dilemma is a situation where it seems that no matter what you do you will do something morally impermissible. Perhaps, in our thought experiment, we are morally required to do something that is morally impermissible. This is a conceptual cost since it rejects an intuitively plausible analysis of the concept of moral requirement, though perhaps one Walzer is willing to pay.
But this is a price that needn't be paid. I can see no clear reason to not think instead that there is a very strong, but not exception-less or absolute, moral prohibition on torturing the innocent. If this is so, then there is no dilemma because there are no rights.
I do want to point out that this discussion is moot relative to the practices of the U.S. in the "war on terror", or, indeed, to any use of torture with which I am familiar. Recall that Walzer requires a degree of certainty and clarity of thought in making the decision and a level and immediacy of threat that is being averted such that our recent actions surely haven't met. Thus, this post is no defense of the moral permissibility of torture.
Walzer, Michael. 2006. Just and Unjust Wars: A Moral Argument with Historical Illustrations. New York: Basic Books.
Allhoff, Fritz. 2005. "A Defense of Torture: Separation of Cases, Ticking Time-bombs, and Moral Justification." International Journal of Applied Philosophy 19(2): 243-264.
As you might have guessed, this is a defense of the moral permissibility of torture. Allhoff argues that under a variety of normative ethical theories, torture turns out to be morally permissible in some cases.
Coady, C.A.J.. 2004. "Terrorism, Morality, and Supreme Emergency." Ethics 114: 772-89.
Coady gives a careful, and subtly, treatment of Walzer's concept of a supreme emergency as it applies to cases of torture. In particular, he argues for an ingenious analysis of the concept of a non-combatant that is both enlightening and controversial.
Shue, Henry. 2006. "Torture in Dreamland." Case Western Journal of International Law 37: 231-9.
Shue discusses, not so much the moral permissibility of torture, but rather the inapplicability of ticking time-bomb thought experiments to the debate on the moral permissibility of torture.