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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:
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
Freddie Gray’s relatives arrived for the trial in the afternoon, after the prep-school kids had left. By their dress, they seemed to have just gotten off work in the medical and clerical fields. The family did not appear at ease in the courtroom. They winced and dropped their heads as William Porter and his fellow officer Zachary Novak testified to opening the doors of their police van last April and finding Freddie paralyzed, unresponsive, with mucus pooling at his mouth and nose. Four women and one man mournfully listened as the officers described needing to get gloves before they could touch him.
The first of six Baltimore police officers to be brought before the court for their treatment of Freddie Gray, a black twenty-five-year-old whose death in their custody was the immediate cause of the city’s uprising last spring, William Porter is young, black, and on trial. Here in this courtroom, in this city, in this nation, race and the future seem so intertwined as to be the same thing.
Minimum number of cats fitted with high-tech listening equipment in a 1967 CIA project:
Zoologists suggested that apes and humans share an ancestor who laughed.
A former prison in Philadelphia that has served as a horror-movie set was being prepared as a detention center for protesters arrested at the upcoming Democratic National Convention, and presumptive Republican presidential nominee Donald Trump fired his campaign manager.
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“Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'”