Could Soldiers Be Prosecuted for Thought Crime?

April 21, 2008

The Pentagon’s Defense Advanced Research Projects Agency is funding a number of technologies that tap into the brain’s ability to detect threats before the conscious mind is able to process the information. Already, there is Pentagon-sponsored work on using the brain’s pattern detection capabilities for enhanced goggles and super-fast satellite imagery analysis. What happens, however, when the Pentagon ultimately uses this enhanced capability for targeting weapons?

This question has led Stephen White to write a fascinating article exploring the implications of a soldiers’ legal culpability for weapons that may someday tap into this "pre-conscious" brain activity. Like the Minority Report notion of "pre-crime," where someone is convicted for contemplating a criminal act they haven’t yet acted upon, this article raises the intriguing question of whether a soldier could be convicted for the mistake made by a pre-conscious brain wave.

One of the justifications for employing a brain-machine interface is that the human brain can perform image calculations in parallel and can thus recognize items, such as targets, and classify them in 200 milliseconds, a rate orders of magnitude faster than computers can perform such operations. In fact, the image processing occurs faster than the subject can become conscious of what he or she sees. Studies of patients with damage to the striate cortex possess what neuropsychologists term “blindsight,” an ability to predict accurately where objects are positioned, even when they are placed outside these patients’ field of vision. The existence of this ability suggests the operation of an unconscious visual perception system in the human brain. These blindsight patients often exhibit “levels of accuracy well beyond the performance of normal observers making judgments close to the threshold of awareness,” particularly with regard to locating ‘unseen’ objects. The speed of visual recognition varies depending on its degree of the perceived object’s multivalence; ambiguous objects take more time to process. If neuralinterfaced weapons were designed to fire at the time of recognition rather than after the disambiguation process, a process that would likely need to occur for the pilot to differentiate between combatants and protected persons, the pilot firing them presumably would lack criminal accountability for the act implicit in willful killing. Because of the way brain-interfaced weapons may interrupt the biology of consciousness, reasonable doubt may exist as to whether an actor performed a conscious act in the event of a contested incident.

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