1 Joel Garreau, Brain on Fire: Tell a Whopper and Watch the Screen Light Up: Thanks (or No Thanks) to Sophisticated Scanning, The Lie May Be on Its Last Legs, Wash. Post, October 30, 2006, at C1.

2 Charles S Riley. Testimony. Records of Senate Committee on the Philippines (1899 1921) at 15271532.

3 Id.

4 Alfred W. McCoy, A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror 21-60 (2006).

5 Central Intelligence Agency, Kubark Counterintelligence Interrogation Manual, July 1963, available at http://www.gwu.edu/nsarchiv/NSAEBB/NSAEBB122/$kubark.

6 I have adopted this term here to denote the measures pursued by the United States expressly in response to terrorism after September 11, 2001. For a broader discussion of whether or not those measures have in fact addressed the terrorist threat presented by Al Qaeda and others, see Jonathan H. Marks, 9/11 3/11 7/7 = ? What Counts in Counterterrorism, 37 Colum. Hum. Rts. L. Rev. 559, 559-626 (2006).

7 I have discussed this in greater detail elsewhere. See, e.g., M. Gregg Bloche & Jonathan H. Marks, When Doctors Go To War, 352 New Eng. J. Med. 3, 3-6 (2005); Jonathan H. Marks, Doctors of Interrogation, 35(4) Hastings Center Rep. 17, 17-22 (2005); Jonathan H. Marks, Doctors as Pawns? Law and Medical Ethics at Guantanamo Bay, 37 Seton Hall L. Rev. 711-731 (2007). For a book-length treatment, see Steve Miles, Oath Betrayed: Torture, Medical Complicity and the War on Terror (2006).

8 N. Lewis, Interrogators Cite Doctors Aid at Guantanamo Prison Camp, N.Y. Times, June 24, 2005 (reporting that, in at least one case, the emotional vulnerability exploited by interrogators was the detainee's longing for his mother). See also M.G. Bloche & Jonathan H. Marks, Doctors and Interrogators at Guantanamo Bay, 353 New Eng. J. Med. 6, 6-8 (2005).

9 See, e.g., Mark Bowden, The Dark Art of Interrogation, 292 Atlantic Monthly (2003), available at http://www.theatlantic.com/doc/200310/bowden; P. Dodds, Released Gitmo Prisoners Sue for Damages, Army Times, Oct. 27, 2004.

10 For a brief discussion of interrogation (including the use of psychotropic drugs), see Jonathan H. Marks, Interrogation, in International Encyclopedia of Social Sciences (2d ed., forthcoming).

11 Intelligence Sci. Bd., Natl Def. Intelligence Coll., Ctr. for Strategic Intelligence Research, Educing InformationInterrogation: Science and Art Foundations for the Future, 74 (2006), http://www.fas.org/irp/dni/educing.pdf.

12 Id. at 74-84

13 For a comprehensive review of these techniques, see Aldert Vrij, Detecting Lies and Deceit: The Psychology of Lying and the Implications for Professional Practice (2000). One notable content-based approach (which is not discussed further in this paragraph) is called content-based criteria analysis. Using this approach, statements are scrutinized for supposed evidence of truthfulness, such as superfluous detail and spontaneous self-correction.

14 There are few exceptionally talented wizards of deception detection. See Raj Persaud, The Truth About Lies, New Scientist, July 30, 2005, at 30. Paul Ekman believes they are able to detect deception by recognizing microexpressions, fleeting movements of dozens of facial muscles. Ekman has catalogued these expressions and teaches them to others, http://www.paulekman.com/training_cds.php. This technique is, however, not entirely independent of technology, since interviews are usually video-recorded and the expressions analyzed retrospectively.

15 Charles F. Bond, Jr. & Bella M. DePaulo, Accuracy of Deception Judgments, 10 Personality & Soc. Psychol. Rev. 214, 214234 (2006).

16 Id.

17 See Jonathan H. Marks, Interrogation, International Encyclopedia of Social Sciences (2d ed., forthcoming).

18 Natl Research Council, Comm. to Review the Scientific Evidence on the Polygraph, The Polygraph and Lie Detection 2 (2003).

19 In August 2004, for example, an official announcement noted the death of Rick Ulbright, a special agent with the U.S. Air Force, who was killed in a rocket attack while performing his law enforcement duties as a polygraph examiner in Iraq. See Craig W Floyd, Federal Law Enforcement's Fallen Heroes, Nov. 7, 2005, http://www.nleomf.org/TheMemorial/tributes/fed04.htm (National Law Enforcement Officers Memorial Fund).

20 According to the interrogator, this is a very odd way to do it with the third person and totally unreliable in my opinion. Correspondence between a U.S. Counterintelligence Liaison Officer and Jean Maria Arrigo (20022005) [hereinafter The Arrigo Papers] (on file with the Project on Ethics and Art in Testimony in Irvine, CA. Additional copy archived at the Intelligence Ethics Collection, Hoover Institution Archives at Stanford University) (restricted until January 1, 2010).

21 See Natl Research Council, supra note 18.

22 This is not just media hype. See, e.g., Sean K. Thompson, The Legality of the Use of Psychiatric Neuroimaging in Intelligence Interrogation, 90 Cornell L. Rev. 1601, 1601 (2005).

23 I offer no concession here to those who claim that torture is efficacious or that the so-called dark art of interrogation is necessary, ethical or legal. See Marks, Doctors of Interrogation, supra note 7; Marks, Doctors as Pawns, supra note 7; Jonathan H. Marks, Al Qaeda through the Terrorscope: The Language and Logic of Torture, Comp. Literature & Culture (forthcoming).

24 See, e.g., Keith A. Johnson & J. Alex Becker, The Whole Brain Atlas, http://www.med.harvard.edu/AANLIB/home.html.

25 New technology now allows for the creation of 3D images in a glass dome around which an observer can move or walk. Although the use of 3D moving images in interrogation fMRI has not yet been reported, this technology has been applied in clinical settings. See Kim Waterman, Exploring Cutting-Edge 3D Imaging System for Cancer Treatment Planning, Rush U. Med. Center Med. News Today, Apr. 29, 2005, available at http://www.medicalnewstoday.com/medicalnews.php?newsid=23565.

26 For my discussion of the power of images in another context (some of which may be applicable here), see Jonathan H. Marks, The Price of Seduction: Direct-to-Consumer Advertising of Prescription Drugs in the U.S., 64 N.C. Med. J. 292, 292-95 (2003).

27 See, e.g., Thompson, supra note 22.

28 The European Court of Human Rights held that the five techniques used in interrogation against suspected terrorists in Northern Ireland in the 1970s did not amount to torture even when used in combination. However, they did constitute cruel, inhuman and degrading treatment. Ireland v. United Kingdom, 25 Eur. Ct. H.R. (1978). The highest court of appeal in the U.K., the House of Lords, and the European Court of Human Rights have recently noted that since human rights standards are not staticand have been increasing this conduct might now also be considered torture. See Joint Comm. on Human Rights, Nineteenth Report, 2005-2006, H.L. 185-I/II, H.C. 701-I/II, para. 17, available at http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/185/185-i.pdf.

29 For the United States international human rights obligations in this regard, see International Covenant on Civil and Political Rights, December 19, 1966, 999 U.N.T.S. 171 (ICCPR) and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85 [hereinafter Torture Convention]. For a more detailed discussion of the application of these treaties and the Geneva Conventions, see Marks, Doctors as Pawns, supra note 7.

30 For an introduction to the concept of cognitive liberty, coined by Richard Boire and Wyre Sententia, see Richard Boire, On Cognitive Liberty, 1 J. Cognitive Liberties 7, 7 (2000), available at http://www.cognitiveliberty.org/jcl/jcl_online.html, and Richard Boire, Searching the Brain: The Fourth Amendment Implications of Brain Based Deception-Detection Devices, 5(2) Am. J. Bioethics 62, 62-63 (2005) (arguing that the Fourth Amendment is too inadequate and incoherent to protect cognitive liberty). For a persuasive retort, see Linda MacDonald Glenn, Keeping an Open Mind: What Legal Safeguards are Needed?, 5(2) Am. J. Bioethics 60, 60-61 (2005) (arguing that the concerns addressed by the concept of cognitive liberty are not entirely novel, in either ethical or legal terms).

31 See Hank Greely, The Social Effects of Advances in Neuroscience: Legal Problems, Legal Perspectives, in Neuroethics: Defining the Issues in Theory, Practice and Policy 245 (Judy Illes ed., 2005).

32 There are many neuroscientists who believe that, no matter how great the advances in technology, the idea of mind-reading is simply fanciful. See, e.g., Laura Stephens Khoshbin & Shahram Khoshbin, Imaging the Mind, Minding the Image: An Historical Introduction to Brain Imaging and the Law, 33 Am. J.L. & Med. 171, 171-192 (2007); Laurence Tancredi & Jonathan Brodie, The Brain and Behavior: Limitations in the Legal Use of Functional Magnetic Resonance Imaging, 33 Am. J.L. & Med. 271, 271-294 (2007). The idea of mindreading is also intuitively suspect. After all, can anyone ever really know what I am thinking or, more improbable still, see what I am seeingfor example, when I reconstruct in my mind's eye the white frosting on the tip of my two-year old daughter's nose after she ate a cup cake last night? However, the press continue to publish articles that invoke the specter of mindreading. See, e.g., Ian Sample, The Brain Scan that Can Read People's Intentions, The Guardian, Feb. 9, 2007.

33 See, e.g., Jonathan D. Moreno, Mind Wars: Brain Research and National Defense 112 (2006), in which the author argues that [a]ctivity in a certain neural pathway cannot be deliberately controlled by a subject; thus, non-voluntary disclosure is possible. In this respect, even physical coercion could be less invasive (although more frightening and injurious) than a valid MRI scan. See also Thompson, supra note 22.

34 See Physicians for Human Rights, Break Them Down: Systematic Use of Psychological Torture by US Forces 4871 (2005), available at http://physiciansforhumanrights.org/library/documents/reports/break-them-down-the.pdf.; William Ray et al., Decoupling Neural Networks from Reality: Dissociative Experiences in Torture Victims Are Reflected in Abnormal Brain Waves in Left Frontal Cortex, 17 Psychol. Sci. 825, 825-29 (2006).

35 See, e.g., Hanna Devlin et al., Brief Introduction to fMRI, http://www.fmrib.ox.ac.uk/resources/education/fmri/introduction-to-fmri/ (last visited July 7, 2007).

36 Id.

37 Id.

38 Moreno, supra note 33, at 100-03. For a description of DARPA programs, see Fact File: A Compendium of DARPA Programs, Defense Advanced Research Projects Agency (2003), http://www.darpa.mil/body/news/2003/FINAL2003FactFilerev1.pdf. For a survey of technological lie detection aids, see Intelligence Sci. Bd., supra note 11, at 63.

39 Daniel Langleben et al., Brain Activity During Simulated Deception: An Event- Related Functional Magnetic Resonance Study, 15 NeuroImage 727, 727 (2002), available at http://www.uphs.upenn.edu/trc/langleben/neuroimage15_2002.pdf.

40 Id. at 727.

41 Id.

42 Daniel Langleben et al., Telling Truth From Lie in Individual Subjects With Fast Event-Related fMRI, 26 Hum. Brain Mapping 262, 262 (2005), available at http://www.uphs.upenn.edu/trc/langleben/tellingtruth.pdf.

43 Id. at 271.

44 See F. Andrew Kozel et al., Detecting Deception Using Functional Magnetic Resonance Imaging, 58 Biological Psychiatry 605 (2005); F. Andrew Kozel et al., A Pilot Study of FMRI Brain Correlates of Deception in Healthy Young Men, 16 J. Neuropsychiatry & Clinical Neurosci. 295 (2004); F. Andrew Kozel et al., A Replication Study of the Neural Correlates of Deception, 118 Behav. Neurosci. 852 (2004); Tatia Lee et al., Lie Detection by Functional Magnetic Resonance Imaging, 15 Hum. Brain Mapping 157 (2002), available at http://www.hku.hk/fmri/index/journals/TanHBM2002a.pdf; Feroze B. Mohamed et al., Brain Mapping of Deception and Truth Telling About an Ecologically Valid Situation: Functional MR Imaging and Polygraph InvestigationInitial Experience, 238 Radiology 679 (2006). See also Sean A. Spence et al., A Cognitive Neurobiological Account of Deception: Evidence from Functional Neuroimaging, 359 Phil. Transactions of the Royal Socy of London B: Biological Sci. 1755 (2004).

45 For a critique of these studies, see Henry Greely & Judy Illes, Neuroscience-Based Lie Detection: The Urgent Need for Regulation, 33 Am. J.L. & Med. 377, 377-431 (2007).

46 The website states: No Lie MRI™ has assembled a world-class team of scientists and business people to develop and market the current truth verification/lie detection product. This team is led by Joel Huizenga, Founder and CEO of No Lie MRI™, and Daniel Langleben, MD, the inventor of the technology used by the company. See No Lie MRI, About Us, http://www.noliemri.com/aboutUs/Overview.htm (last visited July 10, 2007).

47 No Lie MRI Home Page, http://www.noliemri.com/ (last visited July 10, 2007).

48 No Lie MRI, Product Overview, http://www.noliemri.com/products/Overview.htm. (last visited July 10, 2007). A recent competitor of No Lie MRI is the Cephos Corporation, which also boasts 90% detection rates. Cephos Corporation to Offer Breakthrough Deception Detection Services Using fMRI Technology with over 90% Accuracy in Individuals, Business Wire, Sept. 27, 2005.

49 No Lie MRI, Product Overview, http://www.noliemri.com/products/Overview.htm. (last visited July 10, 2007).

50 Id.

51 The Arrigo Papers, supra note 20. Public documents also make clear the Department of Defense's interest in the technology for counterterrorism purposes. The DoD Polygraph Institute has just been renamed the Defense Academy for Credibility Assessment. The polygraph program has been extended to encompass credibility assessment using other [t]echnical devices, and the Director of the Counterintelligence Field Agency is to manage the program and [c]oordinate, integrate and synchronize [it] with other counterintelligence missions and functions. Dep't of Def., Directive No. 5210.48, Polygraph Credibility and Assessment Program (Jan. 25, 2007).

52 Laboratory studies have only begun to explore the recognition potential of the technology. See, e.g., Steven M. Platek et al., Neural Substrates For Functionally Discriminating Self-Face From Personally Familiar Faces, 27 Hum. Brain Mapping 91 (2006), available at http://www.uphs.upenn.edu/trc/langleben/neuralsubstrates.pdf.

53 Paul R. Wolpe et al., Emerging Technologies for Lie-Detection: Promises and Perils, 5(2) Am. J. Bioethics 39, 49 (2005).

54 Ruth L. Fischbach & Gerald D. Fischbach, The Brain Doesn't Lie, 5(2) Am. J. Bioethics 54, 55 (2005). The authors observe that [a] lie is a thought that may elicit only a fleeting brain state. Id. They note that:

[c]urrent imaging techniques that rely on blood flow as a surrogate marker for neuronal activity do not have the temporal resolution to be useful. One must average signals over minutes rather than the requisite milliseconds or seconds. Moreover, the spatial resolution is limited by the microvasculature rather than the specific neural circuits. One must average over relatively large volumes (cubic millimeters) of brain tissue obscuring fine detail in local brain circuits (cubic microns).

Id.

55 Wolpe, supra note 53. It is noteworthy that one of the co-authors of this paper is Daniel Langelben, who has taken a leading role in fMRI-based lie-detection research, and in the corporate exploitation of the technology by No Lie MRI. No Lie MRI, About Us, http://www.noliemri.com/aboutUs/Overview.htm (last visited July 10, 2007).

56 Id.

57 Physicians for Human Rights, Break Them Down: Systematic Use of Psychological Torture by US Forces 4871 (2005), http://physiciansforhumanrights.org/library/documents/reports/break-them-down-the.pdf.

58 Ray, supra note 34, at 827-29.

59 See Kenneth Weiss & Kristina Aldridge, What Stamps the Wrinkle Deeper on the Brow?, 12 Evolutionary Anthropology 205, 205-210 (2003). In light of this observation, the authors ask: [C]an we represent the brain, or just a brain? Perhaps the best we can do is a probabilistic atlas that would be inherently sample-dependent. Id. at 210.

60 Wolpe, supra note 53.

61 Fischbach, supra note 54, at 54-55.

62 Tom Buller, Can We Scan for Truth in a Society of Liars?, 5(2) Am. J. Bioethics 58, 58-60 (2005). See also Tom Buller, Brains, Lies and Psychological Explanations, in Neuroethics: Defining the Issues in Theory, Practice and Policy 51 (Judy Illes ed., 2005). In laboratory studies, however, subjects have usually been told to lie. Arguably, lying in such circumstances (as well as other forms of strategic deceit) may not induce the emotional sequelae described in the text accompanying this note.

63 Donald Kennedy, Neuro-imaging: Revolutionary Research Tool or a Post-Modern Phrenology?, 5(2) Am. J. Bioethics 19, 19 (2005). The allusion to moral framing is my own. For a discussion of moral framing effects, see Cass R. Sunstein, Moral Heuristics and Moral Framing, 88 Minn. L. Rev. 1556 (2004).

64 Buller, Neuroethics, supra note 62. See generally William Uttal, The New Phrenology: The Limits of Localizing Cognitive Processes in the Brain (2003) (arguing that, as a result of neuroimaging technologies, there is a real danger that we will fall victim to a neo-phrenological fad). Stacey Tovino also draws on lessons from the phrenological fad in this Symposium. Stacey A. Tovino, Imaging Body Structure and Mapping Brain Function: A Historical Approach, 33 Am. J.L. & Med. 193, 193-228 (2007).

65 John T. Cacioppo & Gary G. Bernston, Multilevel Analyses and Reductionism: Why Social Psychologists Should Care about Neuroscience and Vice Versa, in Essays in Social Neuroscience, 108, 109 (M.I.T. Press 2004). In the context of CT Interrogations, macro constructs concerning the nature of deceit and the psychology of Islamic fundamentalists would determine the ways in which fMRI is used and the resulting data is interpreted.

66 Id. at 118-20.

67 Id. at 116.

68 Id. at 115.

69 Although I focus on Kelly Joyce's work here, see also Jospeh Dumit, Picturing Personhood: Brain Scans and Biomedical Identity (2004). Although Dumit focuses on PET scans rather than fMRI, much of his critique is applicable to the latter and supports the arguments I make here (in particular, his claim that assumptions reinforcing specific notions about human nature can enter the process at any turn, from selecting subjects and mathematical models, to deciding which images to publish and how to present them).

70 Kelly Joyce, Appealing Images: Magnetic Resonance Imaging and the Production of Authoritative Knowledge, 35 Soc. Stud. Sci. 437, 437 (2005). Much of Joyce's critique in this article applies to fMRI as well as MRI.

71 Id. at 437.

72 See Wolpe, supra note 53, at 46. For an analysis of the development of MRI technology as a diagnostic tool (including the move from numerical representation of data to color images and, later, monochrome images), see Kelly Joyce, From Numbers to Pictures: The Development of Magnetic Resonance Imaging and the Visual Turn in Medicine, 15 Sci. as Culture 1, 1-22 (2006).

73 Joyce, supra note 70, at 446.

74 Id. at 439.

75 Id. at 447.

76 Id. at 454.

77 Id. at 450.

78 Id. at 453.

79 Id. at 445. In 1935, Ludwik Fleck recognized and described Vesalius drawings as ideograms or graphic representations of certain ideas and certain meanings. See Ludwik Fleck, Genesis and Development of a Scientific Fact 137, 141 (1935). As I explain further below, fMRI images are not objective representations. They similarly serve to convey ideas and meanings. However, this subtle communication may be less conspicuous to us when our twenty-first century eyes (habituated to computer graphics) are viewing fMRI images than when they are looking at outmoded sixteenth-century drawings. For a discussion of the implications of Fleck's work for neuroimaging and brain mapping, see Andreas Roepstorff, Mapping Brain Mappers: An Ethnographic Coda, in Human Brain Function 1105-1117 (R. Frackowiak et al., eds., 2004).

80 Joyce, supra note 70, at 446.

81 No Lie MRI, Product Overview, http://www.noliemri.com/products/Overview.htm. (last visited July 10, 2007).

82 See Dumit, supra note 69, at 122.

83 Judy Illes & Eric Racine, Imaging or Imagining? A Neuroethics Challenge Informed by Genetics, 5(2) Am. J. Bioethics 5, 9-10 (2005).

84 Id. at 13.

85 Id. at 12.

86 See supra note 25, and accompanying text.

87 Id.

88 For a discussion of expert images, that is objects produced with mechanical assistance that require help in interpreting even though they may appear legible to a layperson, see Dumit, supra note 69, at 112.

89 See generally Marks, supra note 6 (exploring individual and collective emotional responses to terrorism since September 11th).

90 Id.

91 See Marks, supra note 23. See also Marks, Doctors as Pawns?, supra note 7.

92 See Jonathan H. Marks, Al Qaeda through the Terrorscope: The Logic and Language of Torture, Comparative Literature and Culture (forthcoming).

93 Id. The remainder of Part IV also draws on my analysis in that article.

94 See Mark Denbeaux et al., Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data 14-15 (2006), http://law.shu.edu/news/guantanamo_report_final_2_08_06.pdf. See also Marks, Doctors as Pawns?, supra note 7, at 711-731.

95 Eric Saar & Viveca Novak, Inside the Wire: A Military Intelligence Soldier's Eyewitness Account of Life at Guantanamo 193 (2006).

96 Denbeaux, supra note 94.

97 Saar, supra note 95.

98 Mark Denbeaux et al., Second Report on Guantanamo Detainees: Inter- and Intra-Departmental Disagreements About Who Is Our Enemy 8 (2006), http://law.shu.edu/news/second_report_guantanamo_detainees_3_20_final.pdf.

99 See id.

100 See, e.g., Seymour M. Hersh, The Twentieth Man: Has the Justice Department Mishandled the Case against Zacarias Moussaoui?, New Yorker, Sept. 30, 2002, available at http://www.newyorker.com/fact/content/articles/020930fa_fact.

101 See U.S. Dep't of Def., Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility 13-21 (2005), http://www.defenselink.mil/news/Jul2005/d20050714report.pdf.

102 Adam Zagorin & Michael Duffy, Inside the Interrogation of Detainee 063, Time, June 20, 2005, at 26, available at http://www.time.com/time/magazine/article/0,9171,1071284,00.html.

103 Id.

104 Id.

105 Id.

106 Memorandum from Colonel Thomas Pappas to Lt. Gen. Ricardo S. Sanchez, Request for Exception to CJTF-7 Interrogation and Counter Resistance Policy (Nov. 30, 2003) (available at http://www.publicintegrity.org/docs/AbuGhraib/Abu7.pdf).

107 Id.

108 Id.

109 Id. at 2.

110 Id.

111 Id.

112 Id.

113 See Greely, supra note 31.

114 See, most notably, Gerald P. Koocher, Varied and Valued Roles, 37 Monitor on Psychol. 5, 5 (2006).

115 Id.

116 See Marks, Doctors as Pawns, supra note 7, for a lengthier discussion of this point.

117 See supra text accompanying notes 101-105.

118 See Marks, Doctors as Pawns, supra note 7.

119 The Arrigo Papers, supra note 20 (punctuation as it appears in the original text).

120 Id.

121 The comments of the U.S. interrogator set out above suggest that the technology has been and will be used to screen detainees in this way.

122 According to a recent National Intelligence Estimate, the Iraq conflict has become the cause celebre for jihadists, breeding a deep resentment of U.S. involvement in the Muslim world and cultivating supporters for the global jihadist movement. See National Intelligence Council, National Intelligence Estimate-Trends in Global Terrorism: Implications for the United States (Apr. 2006), http://www.dni.gov/press_releases/Declassified_NIE_Key_Judgments.pdf.

123 I discuss this further in Marks, Doctors of Interrogation, supra note 7. See also Press Release, Colleen Cordes, Executive Director, Psychologists for Social Responsibility, Rethinking the Psychology of Torture: A Preliminary Report from Former Interrogators and Research Psychologists (November 2006) (stating that [t]orture does not yield reliable information and is actually counterproductive in intelligence interrogations, which aim to produce the maximum amount of accurate information in the minimum amount of time.), available at http://www.psysr.org/tortureseminar.htm.

124 In a recent radio interview, Vice President Cheney was asked whether water boarding, which involves simulated drowning, was a no-brainer if the information it yielded would save American lives? Mr. Cheney replied, It's a no-brainer for me. See Demetri Sevastopulo, Cheney Endorses Simulated Drowning: Says Use of Water Boarding to Get Terrorist Intelligence is No Brainer, Oct. 26, 2006, http://www.msnbc.msn.com/id/15433467/. This statement reinforces concerns that detainees, particularly those in the custody of the CIA, may still be subjected to aggressive interrogation or worse. See Marks, Doctors as Pawns, supra note 7.