SIGN IN to access Harper’s Magazine
Need to create a login? Want to change your email address or password? Forgot your password?
1. Sign in to Customer Care using your account number or postal address.
2. Select Email/Password Information.
3. Enter your new information and click on Save My Changes.
Subscribers can find additional help here. Not a subscriber? Subscribe today!
Last August, I reported on the case of Walt Stanton, a graduate student at Claremont Theology School who, with a group called “No More Deaths,” deposited bottles of water at points in the Buenos Aires National Wildlife Refuge, an 18,000-acre area on the Arizona-Mexico border. Stanton and his group have no particular position on the illegal immigration issue—they just think that the immigrants shouldn’t die from dehydration. The Justice Department, however, saw the offer of a drink of water as a criminal act, and brought charges. In the absence of any clear criminal statute that would cover the situation, the prosecutors argued that Stanton’s act of Christian charity was in fact “criminal littering.” Under heavy pressure from the feds and a federal magistrate who made his intention to convict plain, Stanton agreed to 300 hours of community service in lieu of a prosecution.
As it turns out, Stanton should have stood his ground. Some of Stanton’s colleagues pushed the case and appealed their conviction. Now the Court of Appeals has handed down its less-than-astonishing decision: leaving purified water in sealed containers for human consumption is not “littering.” The convictions were overturned, and the Justice Department was given a smackdown.
One judge on the panel saw things differently: Jay Bybee. He argued that the statute, which prohibits “littering, disposing, or dumping in any manner of garbage, refuse sewage, sludge, earth, rocks, or other debris,” was actually intended to criminalize Samaritans who offer a drink to illegal immigrants. This is the same Jay Bybee who wrote a series of memoranda for the Bush Administration in which he concluded that a specific criminal prohibition–against torture–was so hopelessly vague and unclear as to be meaningless. He and his colleagues at the Office of Legal Counsel approved waterboarding, premised on the notion that the torture sessions would be limited by the number of bottles of water used to induce drowning. (CIA-procured waterbottles are now being examined by prosecutors in Poland and Lithuania investigating crimes committed at black sites on their soil.) So while Bybee concludes that simulated drowning of prisoners was perfectly lawful (a position repudiated even by the Bush Justice Department before it left), he concludes that leaving a bottle of water for a person stranded in a desert so as to forestall death is a crime.
Bybee’s impeachment and removal from office has been openly discussed in Congress for some time. An internal ethics review by the Justice Department concluded that he had engaged in serious professional misconduct and recommended referral for bar disciplinary action. The recommendation was, however, blocked in a political maneuver. Bybee is currently the only member of the federal judiciary who is himself the subject of a pending criminal investigation—now being pursued by two judges of Spain’s Audiencia Nacional looking into the torture of Spaniards held at Guantánamo, apparently using procedures that Bybee authorized. While the United States is refusing to cooperate with the criminal inquiry (violating its treaty obligations to Spain in the process), Bybee risks arrest if he ever leaves the country.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp
Acreage of a Christian nudist colony under development in Florida:
Florida’s wildlife officials decided to remove the manatee, which has a mild taste that readily adapts to recipes for beef, from the state’s endangered-species list.
A 64-year-old mother and her 44-year-old son were arrested for running a gang that stole more than $100,000 worth of toothbrushes from Publix, Walmart, Walgreens, and CVS stores in Florida.
Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!
“He could be one of a million beach-bound, black-socked Florida retirees, not the man who, by some odd happenstance of life, possesses the brain of Albert Einstein — literally cut it out of the dead scientist's head.”