Team Torture is still on the job
But Professor David Luban didn’t. This is a story about the continuing infection of the legal landscape by George W. Bush’s “Team Torture.”
Today the Ninth Circuit Court of Appeals overturned the conviction of Daniel Millis, convicted of littering because he left sealed bottles of drinking water in a desert wildlife refuge. He explained that he left them "along frequently traveled routes for unlawful entrants to the United States." He belongs to a group called "No More Deaths," and the opinion quotes his testimony: "humanitarian aide [sic] is never a crime."
This will never do, of course, because it is much cheaper and better if these people just die in the desert, rather than be rounded up and deported, or even worse, get a job picking lettuce.
The Ninth Circuit found that calling sealed water bottles “litter” or “garbage” an, um, stretch. But not Team Torture alum Jay Bybee, who dissented.
You really do have to appreciate such a fine legal mind. Remember, Bybee has a lifetime appointment.
Judge Jay Bybee - he of the torture memo - dissents. Littering is littering, and Bybee finds that the regulation is as clear as a sunny day in the desert. This is the same Jay Bybee who thinks that terms like "torture" and "severe suffering" are so vague that it would be unfair to apply statutes prohibiting them to interrogators who waterboard people and keep them awake for a week at a time, naked and hanging in chains.