Enhanced Warfighters: Risk, Ethics, and Policy Maxwell J. Mehlman Case Research Paper Series in Legal Studies Working Paper 2013-2 Jan., 2013 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=2202982 For a complete listing of this series: http://www.law.case.edu/ssrn Electronic copy available at: http://ssrn.com/abstract=2202982 CASE WESTERN RESERVE UNIVERSITY Enhanced Warfighters: Risk, Ethics, and Policy Prepared for: The Greenwall Foundation Prepared by: Patrick Lin, PhD Maxwell J. Mehlman, JD Keith Abney, ABD California Polytechnic State University, San Luis Obispo College of Liberal Arts Philosophy Department Ethics + Emerging Sciences Group Case Western Reserve University School of Law School of Medicine The Law-Medicine Center Prepared on: January 1, 2013 Version: 1.0.0 Electronic copy available at: http://ssrn.com/abstract=2202982 ▌i Index Executive summary iii Disclosures iv 1. Introduction 1 1.1. Purpose 2 1.2. Background 3 1.3. Questions 8 2. What is human enhancement? 11 2.1. Controversies 12 2.2. Working definition 17 2.3. Variables 18 2.4. Technology survey 21 3. Law and policy 28 3.1. International humanitarian law 28 3.2. US domestic law 36 3.3. Operations 38 4. Bioethics 43 4.1. Research model 44 4.2. Medical model 50 4.3. Public-health model 54 5. Risk Assessment 57 5.1. Risk-benefit model 57 5.2. Risk factors 61 6. A hybrid framework 66 6.1. Legitimate military purpose 66 6.2. Necessity 67 6.3. Benefits outweigh risks 67 Enhanced Warfighters: Risk, Ethics, and Policy Copyright 2013 © Patrick Lin, Maxwell J. Mehlman, and Keith Abney. Electronic copy available at: http://ssrn.com/abstract=2202982 ▌ii 6.4. The warfighter’s dignity is maintained 71 6.5. Burdens are minimized 71 6.6. Consent 72 6.7. Transparency 75 6.8. Fair distribution of risks and benefits 75 6.9. Superiors are accountable 76 7. Other considerations 77 7.1. Character and virtues 77 7.2. Emotions and honor 80 7.3. Broader impacts 84 7.4. Conclusion 86 8. References 88 Appendix 1: List of acronyms 105 Appendix 2: Authors 106 Appendix 3: Contact information 108 Enhanced Warfighters: Risk, Ethics, and Policy Copyright 2013 © Patrick Lin, Maxwell J. Mehlman, and Keith Abney. ▌iii Executive Summary The United States military is making substantial We start with an analysis of international and investments to develop technologies that would domestic law, military policy, bioethics, and risk enhance the ability of warfighters to complete assessments. Then we offer a new framework their missions safely and effectively. Driven by for evaluating human enhancement technologies neuroscience, biotechnology, nanotechnology, in a military context. As an initial model, we also robotics, and other emerging technologies, this discuss further considerations—related to research includes combating sleep deprivation, character and honor, as well as broader social improving cognitive performance, increasing impacts—that can be integrated later into this strength, reducing muscle fatigue, and other evaluative framework. enhancements to the human body and mind. Given a significant lag time between ethics and As with other emerging military technologies, technology, it is imperative to start considering such as robotics and cyber-capabilities, human the issues before novel technologies fully arrive enhancement technologies challenge existing on the scene and in the theater of war. laws and policy, as well as underlying ethical Consider, for instance, the sudden explosion in values. But while the implications of human number of robots in war and the ensuing enhancement generally have been widely confusion and controversies over their use. This discussed, little analysis currently exists for the report, therefore, is intended to help avoid military context—specifically operational, ethical, similar ethical, legal, and policy surprises, as well and legal implications of enhancing warfighters, as technology misuses that affect national such as: reputations and real lives. How safe should these human enhancements and new medical treatments be prior to their deployment (considering recent controversies such as mandatory anthrax vaccinations)? Must enhancements be reversible or temporary (considering that most warfighters will return to society as civilians)? Could enhancements count as “biological weapons” under the Biological and Toxin Weapons Convention (considering that the term is not clearly defined)? This report begins an investigation into these and other issues in order to identify problems that policymakers and society may need to confront. Enhanced Warfighters: Risk, Ethics, and Policy Copyright 2013 © Patrick Lin, Maxwell J. Mehlman, and Keith Abney. ▌iv Disclosures This report is funded by The Greenwall Founda- dation (Switzerland); and the US Office of Secre- tion, with additional support by California Poly- tary of Defense’s NeXTech Wargames (Rapid technic State University’s Research and Graduate Reaction Technology Office). Programs. Any opinions, findings, conclusions, or recom- We acknowledge support by the institutions with mendations expressed in this report are those of which we are affiliated, including: California Poly- the authors and do not necessarily reflect the technic State University’s College of Liberal Arts views of the aforementioned persons or organi- and Philosophy Department; Case Western Re- zations. serve University’s School of Law and Department of Bioethics; Stanford Law School’s Center for Internet and Society; and Australia’s Centre for Applied Philosophy and Public Ethics. We thank our consultants to the project and their respective organizations, who are: Dr. Edward Barrett (US Naval Academy; US Air Force colonel); Dr. Richard O’Meara (Rutgers Univer- sity; retired US Army Brigadier General and JAG officer); Prof. George R. Lucas, Jr. (US Naval Post- graduate School); and Dr. Thomas Murray (The Hastings Center). Special thanks to Prof. Shannon E. French (Case Western Reserve Uni- versity’s Inamori International Center for Ethics and Excellence) and Prof. Shannon Vallor (Santa Clara University) for their contributions to the discussion. We also thank for their contributions and editorial assistance: Michael Burnam-Fink; Alexander R. LaCroix; Travis Rochelle; Jordan Rowley; and Seth G. Schuknecht. Our research also has benefited from collabora- tions with and support from: the Consortium for Emerging Technologies, Military Operations, and National Security (CETMONS); Prof. Braden Allenby (Arizona State University); Brocher Foun- Enhanced Warfighters: Risk, Ethics, and Policy Copyright 2013 © Patrick Lin, Maxwell J. Mehlman, and Keith Abney. ▌1 1. Introduction War is an all-too-human affair, and it perhaps will torture and illegal executions, making an always require payment in human lives. This is a international incident out of a routine patrol. And terrible cost, but one which science and technology post-traumatic stress can take a devastating toll on hope to ease. History has seen an evolution of families and add pressure on already-burdened defensive and offensive technologies—from shields health services. and body armor to more accurate and longer range artillery—that are aimed exactly at minimizing the Human frailty is striking and inescapable. Unlike human cost, at least to our own side. In the Digital other animals, we are not armed with fangs, claws, Age today, we are inventing entirely new and flight, venom, fur, or other helpful features to imaginative paradigms with military robots, survive a savage world. It is a wonder our naked cyberweapons, and other technologies that prom- species has survived at all, if not for our tool- ise to replace the organic, soft-bodied combatant making intellect and resourcefulness. But our tools and better protect noncombatants as well. so far provide limited sanctuary from dangers. For instance, some estimates put the United States Yet it is difficult to imagine a plausible scenario in government’s investment in each soldier, not which human combatants will never be needed in including salary, at approximately $1 million war, no matter how advanced our technologies [Shaughnessy 2012], helping to make the US may be. No weapon or losses have been so horrific military the best equipped in the world; as to deter us from fighting again, as we have nonetheless, that soldier is still largely vulnerable learned since World War I, quaintly billed as the to a fatal wound delivered by a single 25-cent “war to end all wars.” Even against daunting odds bullet. and fearsome machines, from tanks to flying drones, humans are tenacious and hopeful, If humans will always be called upon to fight, then refusing to give up so easily. it makes sense to focus efforts on overcoming that frailty. To be sure, military training attempts to But therein lies a fundamental problem with how address these problems, but it can do only so we wage war: As impressive as our weapon sys- much. Science and technology again offer hope for tems may be, one of the weakest links—as well as whatever challenges we may face, in this case to the most valuable—in armed conflicts continues to upgrade the basic human condition. We want our be warfighters themselves. Hunger, fatigue, and warfighters to be made stronger, more aware, the need for sleep can quickly drain troop morale more durable, more adaptive, and so on. The and threaten a mission. Fear and confusion in the technologies that enable these abilities fall in the “fog of war” can lead