American Journal of Law & Medicine

Interrogational neuroimaging in counterterrorism: a "no-brainer" or a human rights hazard?(Brain Imaging and the Law)

We neither invented lie detection technology nor can do much about the need for it, we have just devised a more reliable version. ... Of course, if the public and its representatives believe that there is a threshold beyond which this technology should not progress, I am ready to stop and focus my energy in other directions. I can understand the ethical revulsion against a 'truth-telling machine.'... Every technology can bring good or bad results, depending on who uses it.... It's the scientist's job to try to push the envelope, and it is the job of ... the public and its representatives to help gauge when we are approaching a danger zone.... As a researcher, more than anything, I for one need some guidance.

--Ruben C. Gur, Director of the Brain Behavior Center at the University of Pennsylvania (on fMRI lie-detection) (1)

I. INTRODUCTION

There is nothing novel about American interrogators seeking the aid of medical science. Intelligence operatives have long held out hope that the application of scientific expertise would compel the most stubborn interrogation subjects to open up magically before them. Congressional testimony records how, more than a century ago, American interrogators in the war in the Philippines sought the aid of a physician to administer the 'water cure.' (2) When an American soldier siphoned water into the nose of a local "insurgent," and the water failed to make him talk, the physician directed that salt be added to the water, knowing full well the further irritation and discomfort that this would cause. (3) During the Cold War, psychiatrists and psychologists also helped the Central Intelligence Agency (CIA)--sometimes willingly, other times unwittingly--to develop aggressive approaches to interrogation that drew heavily on physical and psychological stressors. (4) The role of psychological research in the development of these approaches is clear from the CIA's 1963 interrogation guide, the KUBARK manual, which contains an extensive thirteen-page bibliography of predominantly scientific publications. (5)

More recently, in "the War on Terror," (6) several military psychologists and psychiatrists have been designated "behavioral science consultants" and tasked with helping interrogators develop interrogation strategies tailored for individual detainees. (7) Convincing reports indicate that these consultants advised interrogators how to ramp up interrogation stressors by, for example, exploiting detainees' fears, including fear of the dark, or playing on their emotional vulnerabilities. (8) In addition, there are reports that interrogators have administered psychotropic drugs--'truth serums'--to detainees to make them talk. (9) Although drugs such as sodium amytal, sodium pentathol and scopolamine may well make an interrogatee more talkative, (10) they cannot ensure the accuracy or utility of the words spoken. (11) Despite this problem, the urban myth of the drugged detainee imparting pristine nuggets of intelligence is firmly rooted and hard to dispel.

Recently, however, the intelligence community has recognized that medical science--in particular, neuroimaging--may also play a role in assessing the veracity of interrogation responses. (12) Traditional approaches to lie-detection rely on a number of techniques, including the observation of verbal and nonverbal behavioral cues, analysis of the content of verbal responses, and the measurement of physiological responses to questioning. (13) Although a small number of people have proven exceptionally prodigious at detecting deception, (14) most people--including professional interrogators--are unable to detect lies from demeanor when they rely solely on their own senses and intuition (15) In controlled studies, accuracy generally appears close to chance. (16) Bearing this in mind, the persistent attraction of the polygraph is readily apparent. However, the device relies on physiological manifestations of anxiety--changes in skin conductance, heart rate, and respiration--to flag deception. So it is not effective when the subject is a sociopath or has learned to suppress these manifestations. (17) In addition, anxiety about being tested makes polygraphy "instrinsically susceptible to producing erroneous results." (18) Despite these problems, polygraphy has been used in Iraq and possibly elsewhere in the War on Terror. (19) Although it is not clear how productive the use of the device has been in the counterterrorism mission, one experienced American interrogator has expressed serious doubts about the utility of the device when questions and answers are translated to and from the detainee's native language. (20) Given these concerns, and the inherent limitations of the polygraph, (21) it is not surprising that military and intelligence personnel have started turning to neuroimaging technologies for lie detection in interrogation.

The advent of these technologies has led to bold statements claiming, for example, that "[t]orture is obsolete, or at least obsolescent" and that neuroimaging "may render the 'dark art' of interrogation unnecessary." (22) These comments appear to suggest that, armed with new technologies, interrogators will no longer feel the need to torture or use 'torture-lite' interrogation tactics. However, I argue here that such a claim is unfounded, and that its uncritical acceptance is potentially hazardous both to the health of detainees and to the counterterrorism mission. (23) For reasons I discuss below, the temptation to use torture and aggressive interrogation strategies, including those just falling short of torture, will survive the introduction of neuroimaging technologies in counterterrorism interrogation. Moreover, rather than replacing aggressive interrogation, neuroimaging may become a means of selecting detainees for such treatment. In addition, the nature of the feedback from neuroimaging--colorful images that can be presented in real time, (24) or moving 3D representations that appear like holograms (25)--is likely to create overconfidence in the technology and the interpretation of its output. As I will argue below, the use of neuroimaging may also feed into narrative constructs that can strengthen interrogators' emotional responses to suspected terrorists in a manner that is likely to result in even harsher mistreatment. (26)

The human rights analysis I offer here is, therefore, not a point-by-point consideration of the compatibility of interrogational neuroimaging with human rights law, or, for that matter, with the laws of war or American constitutional law. Others have already undertaken such an analysis. (27) Rather, it is a critique of the mechanisms by which neuroimaging may lead to fundamental human rights abuses. The combined use of the now-familiar catalog of interrogation techniques, including sleep deprivation, stress positions, and exposure to temperature extremes, among others, may not always be considered torture as a matter of law. (28) However, such approaches to interrogation will almost inevitably violate the core human rights obligations to treat detainees humanely and to protect them from cruel, inhuman, and degrading treatment. (29)

I do not mean to suggest that there are no other human rights-related issues in this context. Concerns about privacy, autonomy, medical confidentiality and, if neuroimaging can truly deliver what its advocates suggest, 'cognitive liberty' arise. (30) As Hank Greely eloquently observed:

 
   Effective mind-reading threatens to invade a last inviolate area of 
   'self'. Like removing the membrane from a living cell, removing our 
   ability to withhold our mind's workings may threaten to eliminate, 
   at least for some mental states, emotions, or thoughts, the 
   difference between 'self and 'other'. (31) 

This latter concern is, however, a success-dependent peril. It will only arise if the technology delivers what its advocates promise. (32) The issues I address here, however, are independent of the success of the technology, though they may well be exacerbated by its shortcomings. Although many thoughtful ethical and legal scholars tend not to focus on these issues, (33) they are just as fundamental as concerns about mind-reading and, in my view, more pressing. Psychological torture and other cruel, inhuman, and degrading interrogation strategies can result in long-term health sequelae, including post-traumatic stress disorder, abnormal brain function, and, in the most severe cases, the disintegration of personality. (34) It is hard to imagine a loss of 'self' more profound than that.

II. NEUROIMAGING AND INTERROGATION

In order to substantiate my claim, I will first set out the ways in which imaging technology and interrogation intersect. The most widely discussed neuroimaging interrogation tool at present is functional magnetic resonance imaging (fMRI). As other literature extensively describes the technology, I will not provide a detailed description here. (35) In essence, however, fMRI uses powerful magnetic fields to monitor changes in blood oxygenation levels in the brain. (36) The creation of this strong magnetic field requires equipment that is cumbersome and non-portable. (37) For that reason, the Defense Advanced Research Projects Agency (DARPA)--the central research and development organization in the Department of Defense (DoD)--is funding work on remote neural monitoring and imaging using wireless near-infrared technology--techniques that would provide the added benefit of surreptitious use. …

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