The Use of Neuroscience and Neurotechnology (NeuroS/T) in Interrogations and Questioning: Part 2 – Developing Ethico-legal Objectives, Frameworks, and Proposed Criteria for Studying and Using NeuroS/T in National Security Settings

In last week’s blog, I described the work the Rhiannon Bower and I are doing  that examines the possibility, potential, and problems of using neuroscience and technology (neuroS/T) in military and legal interrogation(s). Clearly, there are a number of issues, problems and concerns that jump to the fore, but at this point, we’re focusing upon the following two:  First is whether such neuroS/T is mature enough to be used in these ways.  Verdict: Perhaps some are (eg. – particular neuropharmacologic agents); many are not (eg.- neuroimaging and transcranial magnetic stimulation). This will require both further assessment of the viability of extant neurotechnoloogies, and ongoing identification and analyses of gaps in information, capability and administrative structures to provide oversight of these current and emerging tools and techniques. This latter point brings us to the second area of interest, namely whether ethico-legal systems are in place and realistic and mature enough to guide, direct and govern such possible use and/or non-use: Verdict: They are not; at least not to the extent that we believe necessary and sufficient to address and account for the contingencies spawned by rapid advancement in neuroS/T and the pull exerted upon its use and employment by a variety of market, political and social forces. This is where the proverbial “rubber hits the road” as regards the ways that pragmatic evaluations of the capabilities and limitations of neuroS/T are translated to practical parameters for the ways that these approach can, should, and/or should not be utilized.

In light of this, we are attempting to develop algorithmic protocols for studying and using neuroS\T that:

  1. Reflect and substantiate technical rectitude
  2. Reflect appropriate moral analyses of use and outcomes
  3. Afford ethico-legal bases to guide/direct both the use of neuroS\T and its outcomes within extant judicial frameworks and guidelines.
  4. Engage technical and ethical concepts to revise/develop pertinent laws to ethico-legally govern any use of neuroscience and neurotechnology in such circumstances.

From these studies, we are developing a proposed set of criteria for using neurotechnologies in national security settings. These tentative criteria include:

  1. That there is less harm done to the subject by using the neurotechnology in question.
  2. If an individual poses a realistic and immediate threat of severe harm to others, the most effective technology – and least harmful among these – should be utilized.
  3. The use of such neurotechnologies must be admissible in a court of law under Daubert (i.e. – reliability) rather than merely Frye (i.e.- relevance) standards.*
  4. If neurotechnology is used, only information pertinent to an ongoing investigation should be obtained, and this should be stored in official police and/or government records.
  5. There must be other corroborating evidence to substantiate prosecution (outside of evidence gathered by neurotechnologies) as is necessary based upon maturity and reliability of techniques (see 3).
  6. There must be a court order issued to incur use of neurotechnologies in these circumstances (see 2 and 3).
  7. Applying these technologies in a preventative or predictive manner is still practically problematic and should not be implemented until further development and adequate ethical frameworks are addressed/generated.

* As well, we are examining other ethico-legal frameworks and standards to enable a more internationally relevant approach to using neuroS/T in such ways (see Caroline Rödiger: Neurolaw: Hype or Reality?)

We are also working to develop policy recommendations that are aimed at supporting fiscal investment in building sustainable infrastructures that:

  1. Engage research to evaluate if and how neuroscience and neurotechnology could be used in NSID
  2. Develop a stance of preparedness with respect to the potential military and law enforcement uses of/for neuroS/T.
  3. Establish multi-disciplinary bodies to formulate ethico-legal guidelines and protocols to monitor/oversee/regulate the use of neurotechnologies both in the US, and internationally.

The goal of this enterprise is not to be merely dismissive or proscriptive, but rather to be critically perceptive, and insightful to the potential for innovation and viable ways that neuroscience and neurotechnology could be developed, used and/or misused, to what ends, and by whom.

 

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