Neuroskepticism - Neurotechnology in National Security and Defense - page 189

while the expert tells us how important the image is. Since nonexperts are hardly
well placed to provide an alternative interpretation of the image, or to challenge the
interpreter's expertise (or his expert interpretation), it is extremely hard for them to
break the circle.
NATIONAL SECURITY NEUROSCIENCE: PERILOUS
TO THE VULNERABLE?
An NRC (2008, p. 19) report on “Emerging Cognitive Neuroscience and Related Tech-
nologies” issued in August 2008 cautioned that when using neurophysiology data to
determine psychological states, “it is important to recognize that acceptable levels
of error depend on the differential consequences of a false positive or a misidenti-
fication.” The authors expressed particular concern that “the neural correlates of
deception could be construed as inconvertible evidence of deception and therefore
(mistakenly) used as the sole evidence for making critical legal decisions with
lasting consequences” and noted that “insufficient high-quality research using an
appropriate research model and controls has been conducted on new modalities
of credibility assessment to make a firm, data-driven decision on their accuracy”
(NRC 2008, p. 34).
These concerns were exacerbated the following month when reports emerged
that a woman named Aditi Sharma had been convicted in India of killing her
former fiancé with arsenic and that her conviction relied principally on “evi-
dence” from brain electrical oscillation signature testing (EEOS)—purportedly
a variation on the electroencephalograph (EEG)-based technique of so-called
brain fingerprinting developed and aggressively marketed by Lawrence Farwell
(Giridharadas 2008). Many commentators have been understandably appalled
that a judge would permit such a travesty of justice, noting hopefully that such
an outcome should not be possible in the United States. Judicial gatekeeping may
well prevent such an incident from recurring in Europe or North America (for a
discussion of the admissibility of evidence derived from neurotechnology, see,
e.g., Chapter 9). A more immediate concern in the United States, however, is the
use of neurotechnologies in the national security context, where there is no judi-
cial gatekeeper.
In particular, an fMRI “test result” could be used to label a detainee as a
terrorist—a troubling prospect described more fully elsewhere (see Marks 2007b).
One can imagine without great difficulty that an intelligence operative—seduced by
colorful brain scans, pseudoscientific explanatory narrative, and media hype—might
say “the fMRI picked him out as a liar”—or, worse still, “as a terrorist.” It is not
difficult to see how that could influence the subsequent treatment and interroga-
tion of such a detainee. Labels such as the “worst of the worst” (used to described
the detainees at Guantanamo Bay), and—a fortiori—specific labels such as the
“mastermind of 9/11” and the “20th hijacker” (ascribed to detainees Khalid Sheikh
Mohammed and Mohamed Al Qahtani, respectively) led to abusive and, in the most
extreme cases, life-threatening treatments. But a label invoking a much-hyped and
little-understood technology, such as fMRI, is likely to be all the more powerful.
These concerns are highlighted by two factors.