At first brush, I think I agree with most of your characterizations of
individual rights.
That said, I think such a position serves only to justify what I already grant to be the "lifeboat" situations - situations where institutionalized practice isn't an issue, and it's left to one individual or a smallish group of individuals to make a crucial and immediate decision which, if made, will likely save lives.
As I've said before though, life isn't an episode of '24'. The immediate moral imperative to act in a 'ticking bomb' scenario could, I suppose, conceivably exist on rare occasion, but it's far more the stomping ground of Hollywood screenwriters than it is a realistic picture of torture in a modern context. Essentially, looking at torture only as a pure abstraction in the context of other pure abstractions like rights ignores the vitally important influence of concrete reality. This isn't to say that morality is wholly relative or 'elastic', merely that it is contextual, and not simply a reciprocal exchange taking place on a movie set.
Looking at torture as a government-sanctioned institution, which is the real question at hand, is problematic. One has to consider the means by which individual
rights are entrusted to the government of said individuals for protection by the exercise of
powers. This is an entirely different debate for another thread, but I'd argue that the application of torture on an institutional basis by a government is an unjustifiable exercise of power. One might try to support it by a rights-based moral argument, but such use of power itself is not a direct result of scrutinizing rights alone. As a (brutally physical) exercise of power, it has to be subject to realistic considerations far more complex than a direct examination of one individual infringing upon another's rights. One might think this conflates the arguments about the morality of torture and the
reasonability of torture, but as I'm sure particularly Danoff would agree, morality follows
from reason, not the other way around.
Defining the discussion too narrowly (which I think your argument does) forbids considering the multitude of important factors that many have mentioned. Among these, I find the actual efficacy of torture, or lack thereof, to be fairly compelling. Likewise the inevitability of torturing the innocent who are inadvertently swept up in the net is profoundly disturbing. Under your reciprocity-based argument, anyone we inadvertently tortured would immediately be morally permitted to torture those responsible for his torture. When torture is an organized and systematic institution, those responsible for his torture would include anyone involved in perpetuating the institution: the soldiers who physically committed the act, their commanding officers, their C.O.'s C.O.s, et al, all the way up, presumably, to the Commander in Chief. This should strike any reasonable thinker as absurd.
Finally and crucially, one must consider the effects on the individual or group that actually
commits torture. This is primarily important in a discussion of morality - we can clearly demonstrate that terrorists are immoral and from that there are some reasonable arguments to be made that they may deserve it. We, the victims of their violence however, certainly ought not doubly victimize ourselves. While I'm glad to say I have no direct experience of this myself, I can only surmise that the act of
inflicting deliberate and prolonged misery and fear of death on another human being, despite whatever he may have done to deserve it, would be, at the very least, emotionally damaging. Further, I think this suggests serious maladjustment on the part of, and does serious damage to, any individual willing to perform it or any society willing to condone it.
This entire debate could be applied to the death penalty as well. I will admit that it's possible to morally justify that fact that one can commit acts such that he relinquishes certain rights, and in cases of justice where incarceration alone is appropriate, that's fine. When the right relinquished, though, is (life/protection from torture), one encounters a serious moral problem. One human being must either be willing to, or be coerced to,
kill or torture another human being. In the face of this unpalatable truth, observation of reality tells us that there are methods of justice more effective
and more humane than either act. In sum, if viewed strictly from the perspective of reciprocity, killing and torture are reduced to acts of revenge, (theoretically) removed from its classical emotional context.
In a generally functional democracy, the means by which the public entrusts its rights to the government for protection is election. The majority selects people it most generally agrees with to place in positions of power, trusting that they will exercise such power in a manner they find appropriate. This is not, however, approval-by-proxy to commit torture. To cannibalize a phrase we often use in another thread, extraordinary acts require extraordinary consent. Our justice system reflects this. In cases where the stakes are confinement or worse, we aren't content to allow elected officials or their appointees to decide for us. Our constitution insists that the decision be made by a dispassionate jury comprised of the general citizenry, moderated by the trained deliberation of a judge. As the very nature of torture as a government must implement it requires a large measure of secrecy to be at all effective, such transparency is impossible.
