Is it legal for the US to use new brainscan technologies during the interrogation of foreign detainees? Sean Kevin Thompson wrote an in-depth legal assessment that will be published in the Cornell Law Review this fall. (Background on functional magnetic resonance imaging (fMRI) for lie detection and “mind reading” here, here, and here.) Thompson argues that “the use of fMRI to detect deception in the voluntary statements of these detainees would be permissible, but that the use of fMRI to extract cognitive information from a nonconsenting detainee would not.” Also, if the subject is held in US territory, the use of fMRI may violate International Humanitarian Law International Human Rights Law as it could “shock the conscience.” On the other hand, “unlawful combatants” in custody outside US territory aren’t protected from prying fMRIs because they’re “only protected by the US Federal Anti-Torture Statute.” From the draft of Thompson’s paper:
Torture is obsolete, or at least obsolescent. Researchers, in part funded by the Department of Defense, have developed technologies that may render the “dark art” of interrogation unnecessary. As these technologies are implemented, many of the legal issues surrounding the aggressive “counter-resistance techniques” the United States presently employs against individuals detained in the Global War on Terrorism (GWOT) may be rendered moot. At the same time, however, these technologies themselves raise new legal issues.
The most promising of these new technologies is psychiatric neuroimaging, the predominant form of which is functional Magnetic Resonance Imaging (fMRI). FMRI provides near real time, ultra-high resolution, computer-generated models of brain activity. These models allow the operator to observe a subject’s neural response to cognitive or sensory-motor tasks. In essence, fMRI allows the operator to watch the subject’s brain think. This has a number of practical applications. For instance, fMRI could function as a hyper-accurate lie detector. In addition, an interrogator could also assess a detainee’s response to specific stimuli. For example, an interrogator could present a detainee with pictures of suspected terrorists, or of potential terrorist targets, which would generate certain neural responses if the detainee were familiar with the subjects pictured. U.S. intelligence agencies have been interested in deploying fMRI technology in interrogation for years. It now appears that they can. As Big Brother warned us, “Thoughtcrime was not a thing that could be concealed forever.”
Link (via Declan McCullagh’s Politech, thanks Xeni!)
UPDATE: Based on thoughtful comments from Ben Giddings about whether fMRIs used to interrogate so-called “unlawful combatants” might violate the Geneva Conventions, I should also point out this bit from Sean’s paper:
“The current U.S. policies are of debatable legal merit, although that debate is beyond the scope of this Note.”