Crossing the Line: What Constitutes Torture?

Torture. The United Nations defines it as the “infliction of severe physical or mental pain or suffering.” But how severe is severe? That judgment determines whether or not the law classifies an interrogation practice as torture.

Now, a study published in an upcoming issue of Psychological Science, a journal of the Association for Psychological Science, condemns this method of classification as essentially flawed. The reason: The people estimating the severity of pain aren’t experiencing that pain—so they underestimate it.

As a result, many acts of torture are not classified—or prohibited—as torture, say authors, Loran F. Nordgren of Northwestern University’s Kellogg School of Management, Mary-Hunter Morris of Harvard Law School, and George Loewenstein of Carnegie Mellon University.

The researchers were moved to undertake the study by their alarm at the Bush Administration’s defense of “enhanced interrogation techniques,” such as stress postures and waterboarding. In court and the media, officials minimized the psychological and physical distress caused by these techniques—and insisted they were not torture.

In this denial, the authors saw a perfect demonstration of a psychological phenomenon called the “empathy gap,” says Loewenstein: “People in one affective state”—hunger, anger, pain—“cannot appreciate or predict another one.” If you’re warm, you can’t imagine the misery of being cold; if you’re rested, sleep deprivation doesn’t seem so bad.

To demonstrate how the empathy gap skews definitions of torture, the team ran four studies focusing on three common interrogation techniques—solitary confinement, sleep deprivation, and exposure to extreme cold. In each experiment, some of the subjects endured a mild version of the pain the tactic produces. Exclusion from an online ball-toss game evinced social isolation. Sleep deprivation was approximated by a three-hour night school class. To simulate confinement in a “cold cell,” some participants performed the trials with one arm in a bucket of ice-cold water; the others’ arms rested in room-temperature water.

After these experiences, participants were asked to rate the pain severity and ethicality of the real interrogation techniques. Every study yielded the same results. Those who endured the mild pain deemed the distress of the technique more severe and less morally acceptable than those who had undergone no pain. Even a short separation from the experience of suffering wiped out its effect. Ten minutes after removing their arms from the ice water, participants judged the pain of extreme cold similarly to those whose arms had bathed in warm water.

“Our research suggests that, except in a rarified situation”—during actual suffering—“people are going to exhibit a systematic bias to under-appreciate the misery produced by the tactics they endorse,” says Loewenstein.

The study’s conclusion: “The legal standard for evaluating torture is psychologically untenable.”

So what can be done? First, overcompensate. “Knowing that we tend to be biased toward not counting torture as torture, we should define torture very liberally, very inclusively,” says Loewenstein. And don’t trust empathy. “This is an area where we can’t rely on our emotional system to guide us.  We have to use our intellect.”