The Legality of the Use of Psychiatric Neuroimaging in Intelligence Interrogation

SEAN KEVIN THOMPSON
Cornell University - School of Law

Abstract:

This Note seeks to analyze the legality of the use of fMRI during the interrogation of foreign detainees in U.S. custody. It assesses the legality of using fMRI in the interrogation of POWs and civilians detained during an armed conflict, arguing 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. The Note also examines the legaity of using fMRI in the interrogation of unlawful combatants, whether they are held in U.S. territory or abroad. The Note argues that the use of fMRI to extract cognitive information from a nonconsenting unlawful combatant held in U.S. territory may "shock the conscience" and, therefore, violate U.S. obligations under International Humanitarian Law. The analysis will vary on a case-by-case basis, depending on the level of force used to effect the scan and the government interest involved. Because, under current U.S. policy, unlawful combatants held outside U.S. territory are only protected by the U.S. Federal Anti-Torture Statute, fMRI in any form would be permissible in the interrogation of these detainees.

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