This Is The Sort of Hypothetical I Expect Our Judges To Consider

3 Sep

The Ninth Circuit recently ruled in favor of a man who was convicted of littering for leaving water bottles for undocumented immigrants in the desert. But as David Luban (via Adam Serwer) observes, the more interesting opinion is the dissent:

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.

But Bybee fails to consider an important possibility. What if the undocumented immigrant has swallowed a ticking time bomb that can only be deactivated with water?

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