Justice, Justice, everywhere...

September 4, 2010 9:56 AM

What do bottles of water used to torture people have in common with bottles of water provided to those in danger of dying of thirst? Jay Bybee. Guess which ones he likes. Scott Horton discusses the case of Walt Stanton and Jay Bybee's curious flexibility over bottled water's proper use.

Jay Bybee has been discussed before.

posted by fartknocker (36 comments total)

I think "bottled water" is a rather clever lens through which to view this asshole's career.
posted by Salvor Hardin at 10:17 AM on September 4, 2010

It's actually a pretty consistent mindset on some level. America is in danger from enemies lurking everywhere! We must punish those enemies simply for existing! Use water to punish them if we catch them! Deny water to them if they're trying to come across our borders! Enemies! Punish! Death! Torture!
posted by hippybear at 10:50 AM on September 4, 2010 [1 favorite]

I'm going to play devil's advocate here for a moment. Making it easier for someone else to commit a crime, with the full knowledge that that person is indeed committing a crime, is also a crime. People will be more likely to commit said crime, or at least have an easier time of it, because of this person's acts.

Also, if this guy was truly interested in the humanitarian aspect of it, he'd hand out the water to the people before they left.

I believe immigration law should be changed. But that doesn't give me a pass to violate the laws.
posted by gjc at 10:55 AM on September 4, 2010 [1 favorite]

There is a sense of irony that this post captures, but it's art over substance.

I strongly disagree with Bybee's interpretation of the statutes relating to torture, both criminal and civil. I would be happy if he were no longer on the bench. Having said that, Horton does not indicate any inconsistency in Bybee's approach to statutory interpretation, aside from the sense that he gives a green light to some things and not to others (or at most seems more sensitive to lenity principles in one context than the other, which is almost invariably an available criticism in criminal matters). If the conclusion is that Bybee can't permissibly uphold criminal convictions for lesser crimes than torture in the event there's a close issue of statutory construction, then he cannot function as a judge -- but I think that's an unreasonable basis for reasoning to a desirable end. Or perhaps the point is that water cases are off limits, including any torts involving swimming pools. . .

I think I would have sided with the majority here, and against Bybee. Note that the officials citing the conduct seemed disposed toward niceness and against citation for a while, until they felt they were being deceived as to the extent of the "littering," and that some provision for water was already being made (not sure how effectively).
posted by Clyde Mnestra at 10:59 AM on September 4, 2010

I don't think illegal immigration is a crime. afaik it's a civil violation.
posted by thirteenkiller at 10:59 AM on September 4, 2010

gjc: great job at playing devil's advocate (that is, advocating for the position of evil).

You imply that he has ulterior motives in leaving the water - that his humanitarian act is a ruse for something else. What do you think his real motivation was?

I can understand how a rational person think that immigrants not in the country legally should be deported.

I can't wrap my head around the idea that there are actually people who think that those people that try to come into this country should die of thirst.

I hope that everyone involved in the prosecution of the person trying to save those lives has sleeping problems for the rest of their lives.
posted by el io at 11:00 AM on September 4, 2010

Okay, I googled it and it appears illegal immigration may be a crime (a misdemeanor!), but being in the country illegally is not.
posted by thirteenkiller at 11:03 AM on September 4, 2010 [1 favorite]

DA: Also, if this guy was truly interested in the humanitarian aspect of it, he'd hand out the water to the people before they left.

It's a long walk, and a hot desert. You can only carry so much, and you pretty much die if you run out.
posted by carsonb at 11:07 AM on September 4, 2010 [2 favorites]

Also, if this guy was truly interested in the humanitarian aspect of it, he'd hand out the water to the people before they left.

Water is very heavy. It's far better to get new supplies of it every so often than to start out carrying all the water you will need.



At some point I have to admit that I don't care what people who are against illegal immigration think. Borders are imaginary lines across which capital flows freely. The idea that labor should not flow freely across borders, whether for the preservation of the ability of capital to go where-ever labor is cheapest, or for the preservation of higher wages for one group of laborers who did nothing to earn it except be born on one side of a make-believe line, is abominable.
posted by Pope Guilty at 11:10 AM on September 4, 2010 [24 favorites]

Before everyone flips out on illegal migration and water, do consider reading the opinion to actually learn what was at issue. Briefly: at least one other group received a permit to leave water in larger drum containers; the service said it would not permit leaving one-gallon jugs that would create more litter and risk the endangered species in the wildlife refuge.

For those taking this in an ideological direction, note that this conviction was defended by the Obama administration, and has the curious result of permitting larger amounts of water, which I suppose means that Bybee was secretly revealing his longing to waterboard people even more severely.
posted by Clyde Mnestra at 11:17 AM on September 4, 2010 [2 favorites]

Yeah, he should have handed out water at the illegal-immigrant queuing center in Mexico City where future illegal immigrants gather and announce that they're about to enter the US illegally. Great plan.
posted by Salvor Hardin at 11:19 AM on September 4, 2010 [4 favorites]

Migrants crossing the border where the water was left are headed to Tucson. Traveling only at night it is a three day hike through some absolutely hellish terrain. If you get sick from dehydration and can't continue the guide is not going to wait for you. In some cases they shoot injured migrants so they can't tell the border patrol how many people were in the group and where they were headed.
posted by nestor_makhno at 11:20 AM on September 4, 2010

Before everyone flips out on illegal migration and water, do consider reading the opinion to actually learn what was at issue. Briefly: at least one other group received a permit to leave water in larger drum containers; the service said it would not permit leaving one-gallon jugs that would create more litter and risk the endangered species in the wildlife refuge.

The problem with drum containers is that they must be placed near access roads so that they can be refilled by a water truck. Migrants avoid these roads like the plague and stick to small, remote foot trails. Using one gallon containers allows volunteers to put the water where the migrants will find it. No More Deaths keeps track of how many containers they put out and in turn make sure that they take out more trash from the refuge than they bring in.

Thanks to fartnocker (really?) for this post. I knew Walt when he lived in Tucson. He was the most kind, intelligent person I knew in the local activist community.
posted by nestor_makhno at 11:25 AM on September 4, 2010 [11 favorites]

nestor_makhno, thanks for the background. I'd add that there seems to have been no evidence that empty containers were left around for long, which is why there was the dispute as to whether full bottles were sufficiently like garbage.

Perhaps there is a middle ground between drums and smaller bottles. I'd be disposed to let this organization do its stuff, so long as they picked up -- but merits aside, there's not too much compromise coming from a group that says "humanitarian aide is never a crime.”
posted by Clyde Mnestra at 11:42 AM on September 4, 2010

"Humanitarian Aid is Never a Crime" was the slogan used when the border patrol arrested and tried two volunteers who were taking a woman they found in the desert to a hospital. They had called a doctor for advice and the doctor told them to bring her in immediately. Some of my neighbors still have their yard signs with the slogan up.
posted by nestor_makhno at 11:45 AM on September 4, 2010 [2 favorites]

The majority cited the slogan here, as it supposedly explained the defendant's position that leaving the bottles was humanitarian aid. My point was only that if a group refuses to recognize the potential illegality of its conduct it tends to make compromise difficult, since concessions can't be trusted. So perhaps we can work with, "humanitarian aid may or may not ever be a crime, but we agree to avoid doing some things if we're permitted to do others, and let's not worry about the labels."
posted by Clyde Mnestra at 11:51 AM on September 4, 2010

Jay Bybee's sociopathic self-absorption
posted by homunculus at 12:22 PM on September 4, 2010

"Note that the officials citing the conduct seemed disposed toward niceness and against citation for a while..."

Clyde, where do you see that, exactly? All I saw in the opinion was a great deal of hand-wringing over the definition of litter. Certainly, an easier subject than death from exposure for those desperate for a better life, but I completely missed any disposition towards "niceness." Unless you mean how Judge Thomas characterized Millis's actions as "placing" bottles of water, and then Bybee used the word "scattered."

This opinion, right?
posted by fartknocker at 12:57 PM on September 4, 2010

In some cases they shoot injured migrants so they can't tell the border patrol how many people were in the group and where they were headed.

cite?
posted by effugas at 1:01 PM on September 4, 2010 [1 favorite]

homunculus beat me to it. Jay Bybee is scum. Don't Cry for Jay Bybee.
posted by adamvasco at 1:08 PM on September 4, 2010

fartknocker, if you want an exact reference, I am referring to pages 1392-1393 of the slip opinion, in which the majority discussed how the officers seem to have initially struck a deal according to which the volunteers would pick up the bottles and leave without citation; they decided to issue a citation when they thought the volunteers had reneged on the deal and were leaving the refuge. I gather the parties didn't agree as to whether the deal had been broken, but it's the (supposed) existence of the deal that led to me the quoted characterization.

I am assuming you thought I meant "Judge Bybee" when I said "officials" (disposed toward niceness), and that "citation" meant affirming of the conviction. Even then, imagining that I meant it was "niceness" to politely avoid discussing "death from exposure for those desperate for a better life" seems a pretty uncharitable interpretation. I expect we could condemn all these opinions, and many others, for ducking the true issue, and perhaps that's what you'd prefer. Then the problem is much larger than Judge Bybee.
posted by Clyde Mnestra at 1:20 PM on September 4, 2010

"I expect we could condemn all these opinions, and many others, for ducking the true issue, and perhaps that's what you'd prefer."

Yeah, I guess that is pretty much how I feel. Seems so stupid to be enforcing littering laws while people are dying in horrible ways. Immigration law? Sure, let's work on that. But surely, as members of a civilization, we can come up with a plan that doesn't thoughtlessly inflict ultimate suffering on those already so poor.

Oh, and Bybee's a huge asshole. Just saying.
posted by fartknocker at 1:25 PM on September 4, 2010

I also agree that the problem is larger than Bybee, great villain that he is. Frankly, guys like him and Gonzales and Rove and Addington... make me think of the French nobility (although what I know of them comes mainly from reading Dumas, so feel free to pick that apart). Their concerns seem alien, and I'm fairly confident that everyone will suffer (not just the people with brown skin) so long as they continue to have their way.
posted by fartknocker at 1:42 PM on September 4, 2010

fartknocker, we share many of the same instincts as to the merits of this decision (I agree with the majority), helping save immigrants whether legal or not, and Bybee's past conduct.

But as long as we're sharing our feelings, I don't believe in condemning someone, who should be condemned for some conduct, based on shallow or contrived examination of additional conduct. So examining a statutory construction case based solely on its result (when Congress wants to do a lot of shitty things, and few judges regard themselves as auto-correcting those things), or citing pointlessly to other respects in which Judge Bybee is self-pitying or an asshole, annoys me -- and causes others to dismiss well founded criticisms as merely partisan. I appreciate the irony revealed by the post, but that's about as far as it goes.
posted by Clyde Mnestra at 1:57 PM on September 4, 2010

Agreed. But shallow is all I got right now.
posted by fartknocker at 2:27 PM on September 4, 2010

I'm going to play devil's advocate here for a moment. Making it easier for someone else to commit a crime, with the full knowledge that that person is indeed committing a crime, is also a crime.

No. Crimes are specific things. Some statutes say that if you help someone do X then you are also guilty of X.

The question here is whether or not the person was littering. The only issue was whether or not the bottles were 'garbage', which they were not.

I believe immigration law should be changed. But that doesn't give me a pass to violate the laws.

What laws do you think they violated?

or citing pointlessly to other respects in which Judge Bybee is self-pitying or an asshole, annoys me

Oh no!

-- and causes others to dismiss well founded criticisms as merely partisan.

Which others are you talking about?
posted by delmoi at 4:15 PM on September 4, 2010

or citing pointlessly to other respects in which Judge Bybee is self-pitying or an asshole, annoys me

Oh no!

-- and causes others to dismiss well founded criticisms as merely partisan.

Which others are you talking about?

Given that you don't care what I (or probably any "others") think, as you so cleverly express, I assume your question's rhetorical.
posted by Clyde Mnestra at 6:12 PM on September 4, 2010

"Given that you don't care what I (or probably any "others") think, as you so cleverly express, I assume your question's rhetorical."

Yes, let's talk about care factors. You seem to care more about what people think about illegal immigration than about the, um, illegal immigrants?
posted by Gamien Boffenburg at 6:38 PM on September 4, 2010

Gamien, I am genuinely puzzled. I posted an absurd amount in this thread, for which I apologize, but I think I pretty consistently got across that (a) I thought the majority was right and Bybee was wrong, (2) I appreciated the irony of the situation but thought adding comments to the effect of "remember Bybee's the self-pitying antichrist" were a distraction, and (3) something was being done to provide water and, upon learning reasons why it wasn't going to be effective, hoped that there might be a middle ground between one gallon plastic jugs and drum containers. I think I also said that I agreed with the poster as to how immigrants, illegal or otherwise, should be respected.

Perhaps what's confusing is that delmoi was quoting from two different commenters (the first wo quotes weren't from me). In any case, not sure where I communicated that I "care more about what people think about illegal immigration than about the, um, illegal immigrants?" Except in the sense that I writing here as opposed to doing something, which is fair to observe, save perhaps in singling me out.
posted by Clyde Mnestra at 6:53 PM on September 4, 2010

I believe immigration law should be changed. But that doesn't give me a pass to violate the laws.

Agreed, gjc. But if you aren't willing to go to jail for your violations of injust laws you believe to be injust, you aren't really willing to do much at all.
posted by IAmBroom at 8:06 PM on September 4, 2010

Agreed, gjc. But if you aren't willing to go to jail for your violations of injust laws you believe to be injust, you aren't really willing to do much at all.

This is a position which elevates moral victories over real victories and should be treated as contemptible by any human being above the age of five.
posted by Pope Guilty at 8:51 PM on September 4, 2010

I also agree. Setting oneself up to be a martyr is the last resort, not the first or even second.
posted by gjc at 6:03 AM on September 5, 2010

Jay Bybee: You can't lead a man to water, but you can make him drink.
posted by l33tpolicywonk at 10:21 AM on September 5, 2010

cite?

I'm sure you can find references to it in the archives of the Tucson Weekly. I have personally heard this from friends and acquaintances who volunteer on the border with immigrant rights groups.
posted by nestor_makhno at 11:59 AM on September 5, 2010

Obama wins the right to invoke "State Secrets" to protect Bush crimes
posted by homunculus at 10:19 AM on September 10, 2010

[Me:] Agreed, gjc. But if you aren't willing to go to jail for your violations of injust laws you believe to be injust, you aren't really willing to do much at all.

[Pope Guilty:] This is a position which elevates moral victories over real victories and should be treated as contemptible by any human being above the age of five.

Pope Guilty, I'm sorry that you find the efforts of Dr. Martin Luther King, Jr, Muhammad Ali, and those who tried to legalize women's voting rights to be "contemptible by any human being above the age of five" (since that's what my links pointed to).

I find your opinion contemptible, too, if that's any relief.


I also agree. Setting oneself up to be a martyr is the last resort, not the first or even second.

gjc, I don't believe you'll find "willing to go to jail for one's beliefs" in the definition of "martyr". Drop the ridiculous hyperbole.
posted by IAmBroom at 9:47 PM on September 16, 2010