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 construct or 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 hot-cold empathy gap leads to the application of an under inclusive conception of "torture" in domestic interrogation policy and international torture law.
Mary-Hunter M. McDonnell, Loran F. Nordgren, and George Loewenstein,
Torture in the Eyes of the Beholder,
44 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol44/iss1/2