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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:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
On a Friday evening in January, a thousand people at the annual California Native Plant Society conference in San Jose settled down to a banquet and a keynote speech delivered by an environmental historian named Jared Farmer. His chosen topic was the eucalyptus tree and its role in California’s ecology and history. The address did not go well. Eucalyptus is not a native plant but a Victorian import from Australia. In the eyes of those gathered at the San Jose DoubleTree, it qualified as “invasive,” “exotic,” “alien” — all dirty words to this crowd, who were therefore convinced that the tree was dangerously combustible, unfriendly to birds, and excessively greedy in competing for water with honest native species.
In his speech, Farmer dutifully highlighted these ugly attributes, but also quoted a few more positive remarks made by others over the years. This was a reckless move. A reference to the tree as “indigenously Californian” elicited an abusive roar, as did an observation that without the aromatic import, the state would be like a “home without its mother.” Thereafter, the mild-mannered speaker was continually interrupted by boos, groans, and exasperated gasps. Only when he mentioned the longhorn beetle, a species imported (illegally) from Australia during the 1990s with the specific aim of killing the eucalyptus, did he earn a resounding cheer.
Percentage of Britons who cannot name the city that provides the setting for the musical Chicago:
An Australian entrepreneur was selling oysters raised in tanks laced with Viagra.
A tourism company in Australia announced a service that will allow users to take the “world’s biggest selfies,” and a Texas man accidentally killed himself while trying to pose for a selfie with a handgun.
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“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”