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Inventions, Innovations, Ideas

One of the primary innovations of the current American administration has been their thus far successful attempt to redefine torture in ways which make it legal, indeed a moral necessity, in the conduct of the “war on terror.” In this issue, Kim Lane Scheppele, a constitutional scholar at Princeton’s Woodrow Wilson School, writes about the specific innovations contained in the infamous torture memos, the changes in our constitutional order precipitated by those memos, and the work she and a network of other lawyers are doing to combat this redefinition of the permissible and just. And, Nobel Prize-winning Princeton psychologist and economist, Daniel Kahneman, talks with us about another form of personal security—the American, and universal, search for happiness. His highly-regarded recent research on happiness both in the United States and cross-culturally challenges many assumptions—including his own— about what constitute security, contentment, and happiness in the present state of the culture.
--The Editors

On American Torture: An exchange with Kim Lane Scheppele

1. You have been working with a group of practicing lawyers and legal scholars to challenge the Bush Administration’s justification of torture. What prompted you to do this? Has it had any effects (on the use of torture, its legitimation, creating a network of critical scholars, etc.)?

When documents started leaking in spring 2004 indicating that the Bush Administration had created an elaborate legal edifice to define away torture and justify the use of cruel, inhuman and degrading treatment of detainees in US custody, I – like many people – was horrified. Before the Bush Administration took office, the US government has always been in the forefront of the campaign to ban torture and to insist on the enforcement of humane standards in wartime. As the paper trail revealed, though, the Bush Administration had decided that it needed to physically coerce detainees into saying what they knew and that it wanted no limits on what it could do to gather information from those who had been caught up in the US-led “war on terror.”

Human rights groups, lawyers who started working with the Guantánamo detainees, legal academics who taught international law and domestic public law, and – perhaps most significantly – military lawyers from the JAG corps of the various services all objected to what was clearly now an official policy of torture. The moral issues were clear, but the legal issues were complicated, resting as they did at the intersection of US constitutional law, international law and military law. Few lawyers or legal scholars had competencies in all of these areas. So, with a number of other people who were closer to the front lines on this than I was, I helped to organize a group of lawyers and legal scholars from both military and civilian sides of the issue who could pool their expertise and bring cases to the courts that would challenge these practices.

Have we made a difference? Members of our group have litigated cases that have forced the Bush Administration to change direction – at least a little. The Rasul and Hamdan cases before the US Supreme Court established that the detainees at Guantánamo had certain legal rights that the administration could not take away, though the Court stopped short of elaborating just what these rights were. Other detainees in US custody elsewhere have filed suits against the US government, though many of those cases have been thrown out because American judges have believed the Bush Administration’s claim that it would be a threat to US national security for the administration to have to explain itself in these cases. Members of our group have kept the torture question before the media and before the courts, and have created a public awareness of the falsity of the Bush Administration’s claim that they “follow the law” and “do not torture.”

Has this made any difference? The Vice-President has just publicly defended waterboarding – that signature practice of abusive dictatorships – as “not torture.” This should tell us all that the Bush Administration has entered an Alice-in-Wonderland space in which words mean whatever they say they do. They may say that they are not engaged in torture, but the facts prove otherwise. Despite our concerted efforts, the Bush Administration has not been willing to stop torture.

2. You have written about the justifications for torture which have been floating about since the advent of "renditions" and the establishment of the prison for enemy combatants at Guantanamo Bay. What is the single most important document in the effort to redefine torture, and what does it do?

The infamous “torture memo” written in the Office of Legal Counsel (OLC) in the Justice Department in August 2002 was perhaps the most shocking single document, but it is clearly part of a concerted campaign that involves dismantling many legal norms that the US, the US military and the vast majority of constitutional democracies in the world had taken as basic principles. The Bush Administration cared not a whit about the international law prohibitions on torture and cruel, inhuman and degrading treatment; the OLC already assured the Bush Administration in a very early memo after 9/11 that the president was bound by no international law that he didn’t want to follow. What worried the Bush Administration was the fact that these international commitments had been written into US federal law. The federal torture statute – banning the use of torture by any agent of the US government operating abroad – was signed into law by Ronald Reagan. The war crimes act – making it a federal criminal offense for an agent of the US government to commit a grave breach of the Geneva Conventions – had been passed by a Republican Congress and signed into law by Bill Clinton. These were bipartisan reaffirmations of the commitment that the US had always had to upholding standards of legality in international relations. The Bush Administration needed to “disappear” parts of US law – not just parts of international law. And they needed to do so to avoid legal liability for their own actions and those of their political allies.

The “torture memo” and the sequence of other memos that provided the legal authorization for coercive interrogation created a ludicrously idiosyncratic definition of torture so that almost no conduct would qualify as such and defined away liability under the war crimes act by arguing that the Geneva Conventions did not apply to the “war on terror” in any event. These memos were written with the clear agenda of bypassing American law by putting the president and his men above all law. And it is probably true that these memos will prevent any future prosecution of the anti-terror team in the Bush administration within domestic law. That is why they were written.

3. Do the torture memos – and the recent Military Commissions Act – have specific implications for the doctrine of separation of powers? Further, you have written about the constitutional or legal status of justifications like the "ticking time bomb" hypothetical. What is the status of this hypothetical empirically, today? What are its effects, especially in light of the widely posited threat of terrorism by our executive, among other government branches, but also by other administrative and governmental organs? Would it be useful in a constitutional challenge to the law? Would judges be swayed by it?

The ticking time bomb hypothetical has been cynically manipulated to generate public support for torture. After all, wouldn’t you torture a known terrorist who has the key to dismantling a nuclear bomb in Manhattan? The problem is that the situations in which the US has actually engaged in torture bear no relationship to this public justification. The US has used classic torture techniques on detainees who have been in custody for years and who clearly have no current information; they have been used on detainees who knew nothing at all to begin with; they have been used indiscriminately on whole prison populations, populations that the International Committee of the Red Cross has estimated were apprehended largely in error in the first place.

Moreover, information from tortured detainees that has been used as actionable intelligence in the “war on terror” has been shown repeatedly to be false. The key claim about weapons of mass destruction in Iraq was provided by a detainee who had been tortured; the summer alarm over the smuggling of bombs onto planes leaving London, bound for the US, has been traced to the torture of a detainee in Pakistan. British judges have since released a number of those held in detention over this alarm after finding that there was no serious evidence to sustain the charges. When information has been acquired by torture, it has not dismantled any single ticking time bomb – it has gotten the US into deeper trouble.

American torture policy is not just a human rights disaster, it reflects also a breakdown in the American constitutional system. The president has taken sole power to abrogate international treaties, defy domestic law, and claim kingly powers to do whatever it takes to provide for the national defense – primarily through acting in secret without accountability before the other branches of government or before the public. With the Military Commissions Act, passed this fall, Congress has approved these powers, rubber-stamping the president’s initiatives without reasserting its own constitutionally crucial role in the “war on terror.” Through the torture policy, we can see that our system of separation of powers has broken down, the traditional American respect for legality and humaneness has been shattered and the role that America has had as a moral power in the world has been lost.

Personal Security and Happiness

An Interview with Daniel Kahneman
by Barry Jacobs and Leo Coleman

Jacobs: What impact, if any, has your research on happiness had on your own life?

Kahneman: Well, some. One emphasis of my research has been on the question of how people spend their time. Time is the ultimate finite resource, or course, so the question of how people spend it would seem to be important. People treat their time as if it means very little, so my respect for the attempt to use time intelligently has increased. It is in part age, of course, too, which by itself makes you more respectful of time. But the combination has had that effect. [Another lesson has been] realizing that many repetitions of the same good experience can beat the search for new experiences. Again, that’s also a lesson of age, but this also follows very directly from my research. So those have been some implications.

Jacobs: In this time of great global insecurity, does research on happiness have particular relevance?

Kahneman: My answer to this is different from what it would have been when I started the project. We’ve been working on a major project trying to understand happiness and well-being over the last six or seven years, and one of the lessons of it, which is in a way disappointing, is that topics such as security and insecurity [aren’t that relevant] when you look at people’s mood. For example, I don’t think by looking at people’s mood you’ll be able to know whether or not they have medical insurance, unless they’re sick. What we discovered in that research is that people’s mood, and hedonic and affective— emotional—experience, is primarily dominated by the context in which they live, unless they happen to be obsessed with something, or with a recent change in their life. And so, thoughts that might bother you a couple of times a day really don’t register very much at all. This is a discovery, we didn’t know this. We had thought there would be large effects. Well, they turn out to be much smaller effects.

You know, people’s mood is really determined primarily by their genetic make-up and personality, and in the second place by their immediate context, and only in the third and fourth place by worries and concerns and other things like that. That’s one of the lessons we’ve learned.

Jacobs: Are there two somewhat separable components of happiness? One that is internal and that we carry around with us and one that is strongly influenced by the external world? Along that line, can catastrophic events, such as 9/11 lower the happiness of an entire society or can people parcel out such events?

Kahneman: I used to thing that the [only] way to measure people’s happiness would be to measure their experience; [I thought that] if you ask them a general question like “What’s on your mind?” or “How satisfied with your life are you these days?”—stuff like that—that just gives you a fallible estimate of what’s really going on . I’ve given up on that, quite painfully, because it was the major idea with which I started this research. I now distinguish two aspects of well being. one of them is experience and the other one I call a narrative that people maintain of their life: what they think about their life when they think about it. Now people don’t think about their lives all that much; but they do a lot in order to maintain that narrative. You know, polish it and burnish it and things like that.

There is research on the effects of 9/11, and you know compared to the enormity of it, it didn’t have a huge effect on people’s mood. They were going about their business, mostly. The other thing you learn when you’re doing this research is that most anything has both costs and benefits, so post-9/11 there was a sense of tragedy, but there was also a great sense of community. I remember, the days after 9/11 in New York, you know, with all the candles, and the sense that we were all in this together. There was a sort of exhilaration to the post-9/11 period. It’s very mixed, as the effects of anything are. The best research on that is done in Israel, because Israel has recurrent crises. I think the research indicates that [when] you have a major suicide bombing, lots of people killed and so on, that causes a dip in the mood. It changes the pattern in road accidents for the first 24 hours. There are things that happen—I think people are safer, but I don’t remember. I do remember that this was published PNAS [Proceedings of the National Academy of Sciences], there is an impact on road accidents, and so forth, but it’s all short-lived and twenty-four to forty-eight hours later, people are back to normal. If you ask them, then it’s very important—the sense of insecurity, whether or not you trust your national leaders—it is important to life satisfaction. It’s not important to mood.

Jacobs: To follow up on that—and I probably speak now from my own feelings, but I think that my feelings about this are fairly general—when 9/11 happened, it wasn’t just a single catastrophic event. It was sea change, in the sense that people now said “we’re just not secure anymore, the world has changed.” And I never felt that way before. I think most Americans never felt that way before.

Kahneman: That’s very strange. I’m older than you are, so I grew up thinking that I would be killed in a nuclear war. I mean, I grew up in World War II, but after World War Two, when I was seventeen, I was convinced I wouldn’t live to thirty-five. I was always very extreme in my predictions and forecasts—but in the early nineteen-fifties this is what I felt like. People became much more secure during the stalemate of the cold war and even more secure after ’89. We are now much less threatened than we were when there was real instability, nuclear instability, and when nobody knew whether deterrence would hold. You know, there is going to be a nuclear incident some time, in the next ten years or next fifteen, and that’s going to shake people up badly, and if it happens in New York it will shake a lot of people very badly.

Coleman: Thinking about Aldous Huxley, and Brave New World, and many science fiction portrayals of the anti-utopian society as one that eliminates unhappiness, where people move around in a kind of dazed, or crazed, happy state. Are you at all concerned about by the kinds of use your research on happiness might lend itself to, especially with the advanced state of marketing and emotional manipulation in consumer society?

Kahneman: Ah, no. You know, nobody knows exactly what uses your research will be put to. We have put a lot of emphasis on emotional experience, but this is part of a broader emotional revolution which is, you know, sweeping psychology in general, and that might have a effect. But our emphasis is really on the intelligent use of time. So I think that if we have any impact at all it’s going to be along the lines.

Coleman: One thing I noticed in some newspaper reports about your research was this postulated correlation between moment-to-moment happiness and passive leisure activities, like watching television. The journalists were very excited about this correlation. So one of the questions we had was: what about long-standing moral and religious and philosophical critiques of hedonistic happiness, saying it produces misery in the long-term?

Kahneman: Again, you need to distinguish what different activities do to the narrative of your life and what they do to your actual experience. The actual experience of watching television is mildly pleasant and very relaxing. Those are the two main axes of experience, and it’s slightly above average and very relaxing. Not a bad thing to do, from that point of view. However, it is a fact in our research that people who watch a lot of television are less satisfied with their lives. Now, I don’t know what’s causal, but my guess is that these are people, by and large, who have fewer obligations. What we see is that taking on obligations doesn’t necessarily make you happier, but it does make you more satisfied, and the more obligations you take, apparently, the less time you have for television. So this is what’s happening.

Coleman: Can you explain for us briefly this distinction between satisfaction and happiness, or how you arrived at it?

Kahneman: Well, how we measure happiness, we try to measure real time (though we don’t use an instrument which asks how you feel now). We get people to reconstruct a day in their experience, like yesterday, and think about it in considerable depth, to try to relive each episode , and indicate what emotions they were feeling. And we have pretty good evidence that people can do this. So that’s what I mean by happiness—the [momentary] thing that people can feel—they can be depressed or they can be happy or they can be sad or they can be angry or they can be stressed—Americans are [stressed] a lot. So that’s experienced happiness. Life satisfaction is what you say when I ask you what you think about your life, are you satisfied with it? How close is it to your ideal life? Do you find it meaningful? Things like that.

These two are, it turns out, very distinct. They are correlated, but only mildly correlated, and they are correlated primarily because both depend on personality, they reflect a positive personality, but otherwise they are determined by different factors. Now this research is only beginning, and this is our contribution, the Princeton group, including Alan Kruger, and others—I think this distinction [between experienced happiness and life-satisfaction] is our contribution to the study of well-being, but the big questions that have to be answered have to do with health, in terms of –for instance—the functioning of the immune system. [What influences that functioning?] Is it what you think of yourself or the daily drip of experience? Very important question, and we don’t have the answer yet, but I hope I’m still around to see that question answered, and we’re trying to work on it.

Coleman: We have a question about the relationship between happiness and personal finance. As an example, high rates of debt, student loans and revolving credit, especially among young people. are pressing issues of concern in the culture right now . Given that debt is acquired in pursuit of both long term, life and career goals, and short term, retail happiness, if you will, do you have any suggestions for rethinking or explaining these debt traps?

Kahneman: Again its something that you won’t pick up in mood very much. We have recently completed a study in 800 women in France and 800 women in the United States, and we know a lot about these women. Among other things, they indicated domains of life from which they draw joy or pain. And financial insecurity is a big deal for Americans, much more than for the French. That is very clear. Yes, there is a burden of financial insecurity. I don’t think you find it in mood. Income is correlated with life satisfaction, so maybe you do find it in life satisfaction. You don’t find it in mood, and I think it is very important. In comparing the lives of these women across countries, this is one of the interesting differences.

Jacobs: This one I’m sure you’ve thought about—Can we compare happiness crossculturally?

Kahneman: That was exactly what we were trying to do in this study, was to develop instruments [for cross-cultural comparison]. In fact, we have a paper that we are writing now, planning to submit it to Science, to answer this question.

Jacobs: But even vastly different cultures?

Kahneman: What you can do—those are really separate questions—you can study the narrative of life satisfaction, as I said, or then you can study experience. A lot is known about international comparisons already, really, but one of the more interesting things that we know is [from] comparisons of Asian-American and American students. It’s second or third generation Asian-Americans, and you go to UCLA, where there are many of them, and their mood is just as good as the mood of the American students. But they are much less satisfied with their lives, and they think that being satisfied with your life and being happy are not all that important. So they have different sets of values, and the construal of well-being is different in different cultures. I’m involved in a very big study recently conducted by Gallup, they call it the “World Poll,” where they have national samples of 130 countries with a lot of questions about well-being. I’m just involved in the analysis of that study; I was only peripherally involved in the design of the study… . . we’ll know a lot by the time we’re done.

Jacobs: My final question, partly because of my own interest in this issue, is: Does happiness research bear on the issue of clinical depression?

Kahneman: I have a few things to say about that. You can cut me off [laughs] … We measure happiness is a way that I think is interesting. We measure the percentage of time that people spend in a bad state, by which we mean the dominant emotion is a negative one, it’s depression, tension, or anger. The average for the American women we study is about 18 percent—it’s about 20-21 percent during the week and about 14 percent during the weekend—and it’s a pretty stable personal characteristic. The thing that strikes you is the extraordinary inequality in the distribution of suffering. The top ten percent on this index do about 40 percent of the total suffering, and probably much more, because the people who suffer most of the day, I think, also suffer more intensely. So, at that end, you can identify a population of people who are in pain. And I think this is going to have policy implications -–the realization that if you want to reduce misery in the population there is nothing you can do that is more important than taking care of depression, of mental illnesses. So I think this is going to be picked up actually; it follows directly from the research we are doing.

Jacobs: Good. Thank you.

12 October 2006.