The Legality of the Use of Psychiatric Neuroimaging in Intelligence Interrogation

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