Neuroweapons, war crimes and the preconscious brain

A new generation of military technology interfaces directly with the brain to target and trigger weapons before our conscious mind is fully engaged.

In a new article in the Cornell International Law Journal, lawyer Stephen White asks whether the concept of a ‘war crime’ becomes irrelevant if the unconscious mind is pulling the trigger.

In most jurisdictions, the legal system makes a crucial distinction between two elements of a crime: the intent (mens rea) and the action (actus rea).

Causing something dreadful to happen without any intent or knowledge is considered an accident and not a crime. Hence, a successful prosecution demands that the accused is shown to have intended to violate the law in some way.

This concept is based on the theory that the conscious mind forms an intention, and an actions follows. Unfortunately, we now know that this idea is outdated.

In the 1980s, pioneering experiments by Benjamin Libet demonstrated that activity in the brain’s action areas can be reliably detected up to 200ms before we experience the conscious decision to act. In other words, consciousness seems to lag behind action.

Although with only limited reliability (just 60%), a recent fMRI study found that areas in the frontal lobes were starting to become more active up to seven seconds before the conscious intention to act.

While these sorts of study raise interesting questions about free will, their effect on the courts has been minimal, because it is assumed that, at least for healthy individuals, we have as much control over stopping our own actions as starting them.

The US government’s defence research agency, DARPA, is currently developing new military technologies, dubbed ‘neuroweapons’, that may throw these assumptions into disarray.

The webpage of DARPA’s Human Assisted Neural Devices Program only mentions the use of brain-machine interfaces in terms of helping injured veterans, but p11 of the US Dept of Defense budget justification [pdf] explicitly states that “This program will develop the scientific foundation for novel concepts that will improve warfighter performance on the battlefield as well as technologies for enhancing the quality of life of paralyzed veterans”.

In other words, the same technology that allows humans to control computer cursors, robot arms or wheelchairs by thought alone, could be used to target and trigger weapons.

Even if only part of the process, such as selecting possible targets, is delegated to technology that reads the unconscious orienting response from the brain, that still means that part of the thought process has automatically become part of the action.

Notably, international law outlaws indiscriminate weapons and aggression, but if the unconscious thought becomes the weapon, how can we possibly prosecute a war crime?

White reviews the current state of the technology from the unclassified evidence and carefully examines the ethical and legal issues, ultimately arguing that we need a new legal framework for 21st century ‘neurowarfare’.

The first preconsious war may soon be upon us.

pdf of ‘Brave New World: Neurowarfare and the Limits of International Humanitarian Law’.

7 Comments

  1. Posted April 15, 2008 at 8:56 pm | Permalink

    I suspect that if someone fired a shot with one of these mind reading rigs, a judge who bought the “it wasn’t a conscious decision” defence would still find that there was a conscious decision to use the rig and allow it to be triggered by unconscious brain activity.
    Bombers can still be found guilty of first degree murder if they use some sort of random trigger on their bombs.

  2. Posted April 16, 2008 at 1:38 am | Permalink

    “but if the unconscious thought becomes the weapon, how can we possibly prosecute a war crime?”
    For a crime like setting off a bomb, we don’t prosecute the bomb.
    As soon as you’ve wired up a person to do harm in a way that bypasses their ability to exercise complete control of their actions, you have taken a large proportion of the responsibility for the outcome–more than just teaching obedience and giving instructions.
    If anything, having soldiers more obviously pre-programmed by their warlords should make it easier to prosecute the guilty.

  3. breflection
    Posted April 16, 2008 at 5:27 am | Permalink

    Generally speaking, I like this blog.
    Especially the content.
    That said, the one or two sentence paragraphs drive me up the wall.
    I would personally prefer it if you stayed within a standard deviation of normal writing styles.
    Cheers.

  4. Karl Hallowell
    Posted April 17, 2008 at 4:57 pm | Permalink

    I don’t see any real change here. A direct link between brain and weapon is only slightly faster than brain to hand to weapon. As I see it, the scenario of the decision to kill being made in the unconcious mind is old news and has been occuring in shootings for some time.
    What I do see as new is the potential to audit or record the decision to kill.

  5. Posted April 28, 2008 at 7:28 pm | Permalink

    Sounds like we are in a whole new world, a new room in which we still have to scientifically explore. Perhaps the making of a ‘decision’ goes through more steps than we previously though.

  6. Posted May 2, 2008 at 10:43 pm | Permalink

    Hi Vaughan,
    I meant to reply to this earlier, but in any case, this is the reply I have also posted on another blog regarding the Haynes study:
    The study has appeared on a number of blogs in a number of different contexts but always making the same point – that imaging can detect activity which suggests the decision to press a left or right button is made a number of milliseconds BEFORE we are consciously aware of having made the decision. The accuracy of the prediction based on imaging has been reported at approximately 60% if I recall correctly.
    Whilst this accuracy is greater than chance, meaning the prediction has some validity, I think that the conclusion that humans only have an illusion of free will is a very poor one. The decision to press a left or right button is essentially a “random” decision, as random as choosing A or B can ever be from within your own mind, rather than flipping a coin. My point is that, in a “random” decision such as this, is it really surprising that micropatterns in neural activity, which could easily be described as neural “noise” give the person a subconcious inclination to chose one button over another? As the person may feel they are choosing the button “at random” using their own “free will” this is not surprising at all.
    Now, if we consider a “reasoned” as opposed to “random” use of free will, the pattern might be very different. Consider quitting smoking cigarettes, which is a hard act of free will, requiring “willpower”. In this case, although it is not yet possible to detect this, we could hypothesize that there would be micropatterns in neural activity relating to dopamine activation of synapses following nicotine inhalation, that give the person a subconcious craving to continue smoking. If an MRI scanner could detect this activity, we might be able to predict if a person would find it easier or harder to quit smoking, with say, 60% accuracy.
    Whilst it is arguable that a person might not be able to quit cigarettes if the addiction and craving exceeds their “willpower” it is ridiculous to argue that the person in the study above would not have been able to change their mind and press a different button, should they so wish. This ability, to inhibit our actions and responses, is tested by neuropsychological tests such as the Stroop Test. I would argue that the ability to inhibit our actions and/or change our minds, examples of Executive Function, are an example of a limited capacity for “Free Will” or “Willpower”. The fact that we might chose button A randomly over button B and that this random decision is influenced by neural noise of which we are not conscious does nothing to disprove the concept of Free Will.

  7. Posted May 3, 2008 at 8:25 am | Permalink

    Hi Tom,
    It seems there are two studies you’re referring to. One of which has shown activation about 200ms before we’re consciously aware of the decision to move. This results is highly reliable, and as far as we can make out from averaged ERP signals, occurs every time. This was a discovery of Benjamin Libet’s back in the 80’s.
    The other is the recent brain imaging study that found that decisions could be predicted up to 10secs before, but with only 60% accuracy.
    In his article, White generally discusses the Libet style experiments, as these are already being used as the basis from ‘neuroweapons’.
    Although the time is only 200ms, it still leads to legal difficulties if this signal is used as the basis of firing a weapon, owing to the difficulty with assigning concious will to the action and hence mens rea.


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