The next big thing in interrogations: it isn’t torture, but will it be (and should it be) accepted?

A Reuters/Ipsos poll released last week shows that “two-thirds of Americans believe torture can be justified to extract information from suspected terrorists,” adding that this is a “level of support similar to that seen in countries like Nigeria where militant attacks are common.”  This poll comes on top of a February 9th report (prior to the recent Brussels attacks) issued by the Pew Research Center showing that 58% of Americans believe that the “use of torture could be justified against people suspected of terrorism to try to gain information about possible attacks,” and that a median of 40% of the people around the globe concluded the same with respect to their own countries.

But is there a way to quickly gain information from suspected terrorists without resorting to torture?  Actually, there is scientific work underway that I believe may obviate the need for the public or anyone else to even consider torture as an interrogation methodology.  Indeed, although some people may still object them, it might one day be possible to have effective interrogation techniques that would have little to do with physical pain or even mental suffering of any sort.  Why do I say this?

In a truly mesmerizing presentation at Duke Law’s just-completed Center on Law, Ethics and National Security Conference, my Duke Law colleague Nita Farahany spoke on this fascinating topic: “Neuroscience Goes to War: Hybrid Soldiers and More”.  This was an extraordinary rich lecture well worth watching for many reasons, but especially because of her discussion about the progress being made by neuroscientists in decoding the brain.

Her presentation focused on the many current and forward-looking uses of neuroscience about which I think many people are unaware. For example, she spoke about work being done to enhance and instantly share threat perceptions through mental processes, as well as efforts to control the actions of robots using signals from the brain alone.  This isn’t science fiction: students at a Chinese military academy are already training to control machines “through a cap that detects the faint electrical activity of their brains.”

At the risk of oversimplification, her discussion about decoding the brain suggested to me anyway that advances in neuroscience might at some point in the (foreseeable?) future provide interrogators with a new and effective tool.

Here’s the critical point: it would not be necessary, it seems to me, for an interrogator to inflict pain or even obtain verbal answers to effectively glean information from a suspect.  Rather, when questions are posed, an interrogator might be able to deduce the answers simply by measuring and decoding the neural activity of a subject’s brain – perhaps through a cap on the subject’s head similar to one the Chinese military academy cadets are using.

Am I off base about the potential of neuroscience to aid interrogations?  A 2013 Scientific American article said that by scanning brain activity “scientists may be able to decode people’s thoughts, dreams and intentions.”

Interestingly, although referencing criminal law situations, the Presidential Commission for the Study of Bioethical Issues made some important observations that are equally germane to security and intelligence-oriented interrogations.  It asserted in March of 2015 that “novel neuroscience techniques might soon reveal (with a cooperative witness) whether an individual recognizes a face or an object, possesses knowledge relevant to a legal proceeding, is lying or telling the truth, or even allow reconstruction of the visual imagery.”  Unsurprisingly, the potential of this kind of science is the subject of real debate even as some nevertheless claim that “neuroscientists are already reading minds.”

To be sure, Professor Farahany made it very clear that we are not ‘there’ today – we can’t yet mind-read as most people would commonly think of the term and, in any event, the focus of her presentation was not on interrogations.

And, yes, as indicated above, what can be done today in terms of interpreting neural activity largely requires a cooperative subject – but some interesting possibilities still seem to be on the horizon as decoding techniques get more sophisticated.  What is inarguable is that the nature of the interrogation debate could change substantially not just in the national security environment but also, as the Commission suggests, in the criminal law setting as well.  (Check out Professor Farahany’s scholarship on this subject.)

Professor Farahany, who is writing a book tentatively (and intriguingly!) entitled On Cognitive Liberty, is concerned that we are “approaching a world of total transparency” where the “last frontier” of privacy – our own thoughts – may be breachable by science.  She advises that there are a range of legal and ethical issues needing to be addressed now, before science presents us with a sort of fait accompli at which point norm development and enforcement could be quite difficult.

For example, just last year she warned that “we as a society should deliberate about these issues to ensure that the ethical and societal implications of neuroscience are considered alongside scientific developments.”  Among other issues, she said that “[s]ome of the forward-looking questions that we should be deliberating about now are whether individuals have a legal interest to mental privacy that could safeguard against [being] compelled to submit to EEG, fMRI, or other brain-based interrogations?”

If they were available today, could such neuroscience techniques be used for law-of-war interrogations?  Not likely for American troops simply because anything not authorized by the U.S. Army Field Manual covering interrogations is illegal under current U.S. law.  Theoretically, however, US domestic law could be changed, but if that were to happen, what about international law?

The issue is whether there is agreement as to precisely what “torture” means in every instance.  Michael John Garcia of the Congressional Research Service provides a helpful overview of the relevant international treaty, the 1984 United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). Garcia says that

[The CAT] requires signatory parties to take measures to end torture within their territorial jurisdiction and to criminalize all acts of torture. Unlike many other international agreements and declarations prohibiting torture, CAT provides a general definition of the term. CAT generally defines torture as the infliction of severe physical and/or mental suffering committed under the color of law. CAT allows for no circumstances or emergencies where torture could be permitted. (Italics added.)

It is easy – and legally correct – to conclude that, for example, pulling out fingernails and other acts designed to inflict severe physical suffering are clearly torture under the CAT, but what about “mental suffering”?  David Luban and Henry Shue describe it as “the merciless attempt to break down and occupy the personality of the victim.”  But what, in turn, does that really mean – especially in the context of the relatively passive neuroscience-based techniques?

Opinions can differ, but I don’t think that the kind of neuroscience techniques of decoding the brain through passive examination of neural electrical activity that we’ve been discussing amount to “torture” as the law currently defines it.  Of course, as a matter of the law of war, there may be other existing constraints that could restrict the use of such neuroscience techniques for interrogations even if they do not amount to “torture” (assuming we could settle on a definition of the term).

Still, I’m convinced that (along with developing other useful but more time-consuming humane techniques), neuroscience – not torture – is the future of effective interrogations.  I also strongly believe – like Professor Farahany – that we need to think through now the implications and unintended consequences of this science and develop appropriate legal and ethical norms for its use.

 

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