The President has just presented some proposed legislation to Congress that includes the following provision (hereinafter called the “Kidnapping Exigent Circumstances Interrogation Provision” or “KECIP”): (a) The United States Attorney* shall have the right to an emergency hearing in the District Court (hereinafter called a “KECIP Hearing”) within 24 hours of a suspect’s arrest when (1) Pursuant to a lawful arrest, a suspect is held in federal custody pursuant to a charge of kidnapping; and (2) The whereabouts of the person or persons allegedly kidnapped remain unknown to federal law enforcement officers. (b) If, in the KECIP Hearing, the court determines that the United States Attorney has shown, by clear and convincing evidence,† that: (1) The whereabouts of the person or persons kidnapped is unknown to law enforcement officers; (2) The suspect is responsible for kidnapping said persons; (3) The suspect has reason to know of the current location of said persons; and (4) That the use of the interrogation technique commonly known as “waterboarding,” within the duration of the period prescribed herein, is substantially likely to result in the suspect disclosing the current whereabouts of said person(s), then federal law enforcement officers shall have the unrestricted authority to use waterboarding for the purposes referenced herein for a period of 72 hours, during which period the suspect shall have no right to counsel, nor to appeal the court’s decision, nor to apply for a writ of habeas corpus. (c) The authority granted in part (b) hereof is subject to the condition that qualified medical personal shall be in attendance during the entirety of said 72 hour period. (d) No information disclosed by the suspect at any time during said 72 hour period, or subsequently discovered or obtained on the basis of such disclosure, shall be admissible in trial in prosecuting the suspect, such evidence being excluded on the basis of Fifth Amendment protections safe-guarding the right against self-incrimination.
KECIP has already passed in the House of Representatives. The President is committed to signing KECIP into law if it is passed by Congress. Thus, the fate of KECIP hangs with the Sentate. * This is the branch of the government that prosecutes federal criminal cases. † For purposes of this assignment, assume that “clear and convincing evidence” is something between “a preponderance of the evidence” and “beyond a reasonable doubt.” Roughly speaking, it is in the neighborhood of proving that the claim being made is at least 75% likely to be true. Page | 2 As things stand in the Senate, 49 senators are fully committed to voting in favor of KECIP and 49 senators are fully committed to voting against KECIP. One senator is fully committed to abstaining from voting on KECIP. In the case of a tie vote, the Vice President will cast the tiebreaking vote in favor of KECIP and, thus, KECIP would pass in the Senate and, therefore, become law. There is only one senator who is undecided, Senator Dorothy Whitcomb. Thus, if Senator Whitcomb votes in favor of KECIP, or abstains from voting, KECIP will become law. If she votes against it, it will not. You work for Senator Whitcomb as an advisor. She tells you that she has moral qualms about this proposed legislation. She thinks it might be intrinsically wrong to waterboard a person, but is not completely sure. She is also concerned about the potential positive and negative consequences of KECIP becoming law. Her current inclination is to vote against KECIP, but the majority of her constituents would like her to vote in favor of it. In order to decide what to do, she wants to get a better grip on the relevant moral issues. Senator Whitcomb has had other members of her staff do research and informs you of the following. First, waterboarding is 70% effective in eliciting true confessions in the circumstances specified in KECIP. Second, 1% of the suspects subjected to waterboarding pursuant to the proposed legislation will die as a result. In making your analysis, you are to assume that all these claims are true. Senator Whitcomb asks you to write a paper advising her as to whether she should: (1) vote in favor of KECIP, (2) vote against KECIP, or (3) abstain from voting on KECIP. She wants you to base your analysis of the issue on two moral theories: (a) Consequentialism and (b) the Doctrine of Doing and Allowing. As a part of your analysis, she also asks you to work out whether or not the following issues matter, and, if they do, in what respects they matter and how much they matter: (i) the number of people that have been allegedly kidnapped by the suspect, and (ii) the conditions in which the kidnapped persons are being held. When applying Consequentialism, you will have to specify which sorts of things you take to be intrinsically valuable. Just do your best to pick plausible things. It seem likely that this should include some basic conception of human wellbeing and what that involves. I am not expecting you to specify some deep theory of what is intrinsically valuable. Nor am I expecting that you can rigorously quantify everything. If you find that there are things that you can quantify in a useful way, then do so. But I don’t expect you to do some full-blown hedonic calculus or something like that. Just think as reasonably, honestly, and effectively as you can about the issues in this context. Remember, you are ultimately aiming to give the Senator some good, practical advice that she can rely on to be well thought out and clearly stated so that she can make a decision on a very important matter. Remember, you are advising the Senator as to her decision. Your only job is to write an honest and accurate paper to advise her. Note: There may be more important issues than can be handled within the compass of a fivepage paper. Just use your judgment in selecting the most important things to talk about. This Page | 3 might mean that you can’t talk about all of the things that you consider important because this is such a short paper. You must use your judgment to prioritize the issues. Although you are to submit your work in the normal paper format, as specified below, you should write the content of your paper as if you are addressing the Senator. The “Method Guidelines” and “Style Guidelines” provided below are official departmental guidelines for all “Signature Assignments” for the Core Curriculum (which is what this paper is). I am required to adopt those parts of the instructions verbatim in assigning this paper. Here is how to fit the topic that I have given you into those guidelines. With respect to Method Guideline #1, the “different possible answers” you are looking at are the answers you are giving to the Senator as to how to vote—“yes” or “no”. One of them is the answer you think best and the other is not. This gives you what you need to construct your paper in accord with Method Guidelines #1 and #2. Method Guideline #3 asks you to bring in philosophical concepts referenced in the prompt—these are Consequentialism and the Doctrine of Doing and Allowing as mentioned above in the instructions.