American Journal of Law & Medicine, 33 (2007): 483-500 © 2007 American Society of Law, Medicine & Ethics Boston University School of Law

Interrogational Neuroimaging in Counterterrorism: A “No-Brainer” or a Human Rights Hazard? Jonathan H. Marks

Abstract: Recent fMRI studies have generated a great deal of excitement about the potential for neuroimaging technologies to support the U.S. counterterrorism mission post-9/11 and, in particular, to assist with the interrogation of suspected terrorists. Advocates of the technology claim that fMRI could be used (a) to detect deception and/or (b) to monitor recognition of an audio or visual stimulus—recognition that the examination subject might otherwise wish to suppress. At least two corporations in the U.S. are aggressively marketing the technology for lie detection purposes. Although the use of fMRI in the war on terror has been mainly conjecture until now, this paper cites statements by an experienced U.S. interrogator suggesting the technology may already have been deployed in the field. Some advocates claim fMRI has the potential to eliminate torture and other violations of the fundamental human rights. (If we can read the minds of terrorists, so the argument goes, we won’t need to torture them.) This essay responds to that claim by sounding a note of caution. Drawing on recent work from scholars in science, technology and society (STS), social neuroscience and bioethics, this paper argues that fMRI may lead to the abuse of detainees—including those who are innocent—as a result of overconfidence in the technology and the profound social construction of the data it produces. The risk of abuse is particularly acute in highlycharged counterterrorism scenarios because fMRI will be deployed extrajudicially and behavioral drift is likely.