Torture in the eyes of the beholder: the psychological difficulty of defining torture in law and policy.

• Author: McDonnell, Mary-Hunter Morris

ABSTRACT

This Article draws upon recent social psychological research to demonstrate the psychological difficulty of distinguishing between torture and enhanced interrogation. We critique the accuracy of evaluations made under the current torture standard using two constructs--reliability and validity--that are employed in the social sciences to assess the quality of a constructor metric. We argue that evaluations of interrogation tactics using the current standard are both unreliable and invalid. We first argue that the torture standard is unreliable because of the marked variation in the manner in which different jurisdictions interpret and employ it. Next, we draw on recent social psychological research to demonstrate the standard's invalidity. We identify the existence of two separate systematic psychological biases that impede objective application of the torture standard. First, the self-serving bias--a bias that motivates evaluators to interpret facts or rules in a way that suits their interests--leads administrators to promote narrower interpretations of torture when faced with a perceived threat to their own, as compared with other nations', security. Thus, the threshold for torture is tendentiously raised during exactly the periods of time when torture is most likely to be used. Second, our own research on the hot-cold empathy gap suggests that an assessment of an interrogation tactic's severity is influenced by the momentary visceral state of the evaluator. People who are not currently experiencing a visceral state--such as pain, hunger, or fear--tend to systematically underestimate the severity of the visceral state. We argue that, because the people who evaluate interrogation tactics are unlikely to be in the visceral state induced by the tactic when making their evaluations, the hot-cold empathy gap results in systematic underestimation of the severity of tactics. Therefore, the hotcold empathy gap leads to the application of an underinclusive conception of "torture" in domestic interrogation policy and international torture law.

TABLE OF CONTENTS INTRODUCTION PART I: THE UNRELIABILITY OF THE TORTURE STANDARD: A COMPARATIVE REVIEW OF TORTURE LAW PART II: THE INVALIDITY OF THE TORTURE STANDARD: SYSTEMATIC PSYCHOLOGICAL BIASES AFFECTING EVALUATIONS OF INTERROGATION TACTICS A. Self-Serving Biases and Motivated Inference in Evaluations of Interrogation Tactics B. The Hot-to-Cold Empathy Bias in Evaluations of Interrogation Tactics PART III: HONING CLOSE OR STEERING CLEAR: THE IMPORTANCE OF A BRIGHT LINE IN REFERENCE TO A PROHIBITION PART IV: CONCLUSION INTRODUCTION

[Torture] presupposes, it requires, it craves the abrogation of our capacity to imagine others" suffering, dehumanizing them so much that their pain is not our pain.... [It places] the victim outside and beyond any form of compassion or empathy, but also demands of everyone else the same distancing, the same numbness....

--Ariel Dorfman (1)

Whatever the realities of current practice, states have formed a remarkable consensus regarding the unacceptability of employing torture to procure information from political detainees. (2) Torture is unconditionally banned by a wide range of international treaties, including the United Nations Convention against Torture (CAT), (3) the International Covenant on Civil and Political Rights, (4) and the four Geneva Conventions. (5) Rather than admitting any intentional decision to torture detainees, countries responding to a charge of torture typically mount one of three standard defenses: (1) denial that the claimed acts occurred; (2) denial of personal responsibility, e.g., claiming that the torture was carried out by "rogue" subordinates; or (3) denial that the relevant interrogation techniques constitute torture. The fact that individuals and nations rarely, if ever, acknowledge that they committed torture underlines the sacrosanctity with which the prohibition of torture is generally regarded.

Torture is to nations, however, what adultery is to politicians-an act that is both condemned and committed with numbing frequency. Like adultery, torture often occurs in the heat of the moment, when a nation feels acutely threatened. Also like adultery, as exemplified by President Clinton's denial that he had "sex" with Monica Lewinsky, there is often much greater agreement about the unacceptability of the act than about how, exactly, the act should be defined.

The problem is perfectly illustrated by the controversy surrounding the interrogation tactics employed by the United States in CIA secret prisons, (6) including waterboarding, forced abstention from sleep, and enclosure within a dark, confined box with insect. (7) The debate surrounding these "enhanced interrogation tactics" (as they have been euphemistically called) has not centered on whether or not torturing prisoners is permissible, but rather on whether or not any of these tactics amounted to torture. (8) This highlights a vexing reality of international law: it is often easier for everyone to agree to wholly abjure an act than on what, exactly, that act is.

The frequency with which debates arise over whether particular acts constitute torture poses a serious challenge to the popular belief that torture is easily distinguishable from less severe tactics--that there is a discernable bright line between torture and other cruel treatment. Proponents of this school of thought allude to a kind of gut instinct (what Jeremy Waldron has colorfully characterized as "a sort of visceral 'puke' test") that can be relied on to recognize true torture. (9) Although no a priori categorical definition of torture can conceivably be chiseled out, the argument goes, torture remains easily recognizable because "you know it when you see it." (10) In describing just how one can recognize torture, a slew of visceral responses have been cited. For example, former U.S. Deputy Assistant Attorney General Mark Richard suggested that the concept of torture encompasses "conduct the mere mention of which sends chills down one's spine," (11) and former CIA instructor Malcolm Nance stated that the "acts and calumnies" that comprise torture "force us to look away for [a] moment." (12)

Rejecting the gut instinct test, this Article argues that a bright line between torture and enhanced interrogation is exceedingly difficult to draw in an objective fashion. In fact, contrary to the aforementioned assumption that visceral reactions are a reliable aid in distinguishing between enhanced tactics and torture, this Article contends that the psychological complexity of visceral experience actually obstructs our ability to arrive at an unbiased evaluation of what constitutes torture. Specifically, we argue that evaluations of enhanced interrogation tactics are subject to a "hot-to-cold empathy gap," a psychological phenomenon that impedes the ability of people to evaluate viscerally charged experiences that they are not immediately experiencing. (13) The empathy gap captures the insight, documented in numerous empirical studies, that people who are not currently experiencing a visceral hot state--herein defined as any compelling aversive emotional state such as fear, hunger, fatigue, or pain--regularly underestimate its intensity. (14)

We recently conducted a series of experiments to gauge whether the empathy gap affects evaluations of enhanced interrogation tactics. (15) These experiments confirm that people suffer from innate empathic biases when assessing the severity of interrogation tactics. In a series of three social psychological experiments, we found that individuals who are currently experiencing a state that is induced by an enhanced interrogation tactic--for example, fatigue, coldness, or social isolation--tend to evaluate that tactic as significantly more painful and unethical than participants who are not experiencing the state. People experiencing a visceral state are also more likely than others to classify as torture (as opposed to "interrogation") a tactic that induces that state. Therefore, in direct contradiction to arguments that the line between torture and enhanced interrogation can be determined by reference to a visceral response, our research suggests that the perceived line between torture and enhanced interrogation actually shifts with the visceral experience of the evaluator. Moreover, because administrators and judges evaluating interrogation tactics are unlikely to be experiencing a significantly elevated visceral state when making their evaluations, our findings suggest that they are at risk of systematically underestimating the severity of the tactics. This underestimation could lead them to apply an underinclusive conception of "torture" in domestic interrogation policy and international torture law.

The ultimate goal of this Article is to identify the psychological reasons why, under stressful conditions, even well-meaning countries will err on the side of violating norms against torture. We first draw on recent psychological research that demonstrates (1) the difficulty of demarcating a bright line between torture and enhanced interrogation tactics, and (2) the mechanisms driving a psychological tendency to endorse an underinclusive conception of torture in periods of political distress.

In critiquing the human ability to objectively identify torture, we will employ two critical concepts that are utilized in the natural and social sciences to assess the quality of a constructor measure (such as IQ, happiness, or, in the case of torture, severity of suffering): reliability and validity. (16) Reliability indicates the degree to which a measure yields consistent results. (17) Validity indicates the degree to which a measure yields meaningful results, or the extent to which the test in question is actually measuring what it purports to measure. (18) A measure is considered invalid if it does not accurately measure what it is intended to measure...