David Luban makes an interesting observation about torture memo author Jay Bybee's dissent in a case involving a man who was convicted of littering for leaving water bottles in the desert to help migrants who might be dying of thirst. The Ninth Circuit overturned the conviction, saying the language of the statute was ambiguous enough that a reasonable person might not have construed such actions as littering.
Bybee of course, disagreed.
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.
Reasonable people can disagree about whether or not torture techniques devised by Chinese communists are torture, but littering? That's ironclad.
