Use of Psychiatric Neuroimaging in Intelligence Interrogation

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Monday, October 17, 2005 10:37 AM

[Global_Police_State] Use of Psychiatric Neuroimaging in

Intelligence Interrogation

 

 

 

 

Legalities of neuroimaging for intelligence interrogation

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Torture is obsolete, or at least obsolescent.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. "

 

http://www.boingboing.net/2005/06/14/legalities_of_neuroi.html

 

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The Legality of the Use of Psychiatric Neuroimaging in Intelligence

Interrogation

 

SEAN KEVIN THOMPSON

Cravath, Swaine & Moore LLP

 

Cornell Law Review, Vol. 90, p. 1601, 2005

 

Abstract:

This Note examines the legality of the use of a form of psychiatric

neuroimaging called functional Magnetic Resonance Imaging (fMRI) in

the interrogation of detainees in U.S. custody. Part I provides

background on current U.S. interrogation doctrine and the potential

role of fMRI in interrogation. Part II examines fMRI in light of

International Humanitarian Law, arguing that while its use to detect

deception in the voluntary statements of detainees is permissible, its

involuntary use in interrogation would violate the anti-coercion

provisions of the Geneva Conventions. Part III examines fMRI in light

of International Human Rights Law (IHRL) and the U.S. Constitution,

arguing that although fMRI would not constitute torture its use may

shock the conscience and, in many cases, would be illegal under IHRL

and the Constitution. If the government can articulate a sufficient

interest in obtaining information from the detainee, however, its use

would not violate current law. The Note concludes by arguing that

although fMRI does not represent a complete technological solution to

the legal problem of torture, it nevertheless is permissible in

certain limited instances.

 

Keywords: fMRI, torture, CID treatment, interrogation, terrorism,

intelligence

 

Suggested Citation

 

Thompson, Sean Kevin, " The Legality of the Use of Psychiatric

Neuroimaging in Intelligence Interrogation " . Cornell Law Review, Vol.

90, p. 1601, 2005

 

http://ssrn.com/abstract=656841

 

 

http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID825666_code442556.pdf?abstractid\

=656841 & mirid=1

 

 

http://organizations.lawschool.cornell.edu/clr/90_6/Thompson_Cornell_Law_Review_\

90_6.pdf