

Perhaps a session of waterboarding is the correct sentence for a California man convicted of selling more than $1 million worth of counterfeited "access cards" that allowed customers unlawful access to DirectTV's digital satellite feed.

Jay Bybee, a judge on the 9th U.S. Circuit Court of Appeals who as an assistant U.S. attorney general signed the infamous "torture memo," (.pdf) isn't saying what would be an appropriate sentence. But on Monday, he blasted two of his colleagues who sat with him on the DirectTV case: They signed off on a lower court judge's rendering of five-years' probation, a $50,000 fine and community service.

"This sentence is substantively unreasonable for someone who was convicted of stealing over $1 million in profits from DirectTV and who bragged to have personally made over $400,000 from the theft," Bybee wrote (.pdf) Monday.

Bybee, in 2002, signed off on the torture memo after the CIA requested legal advice on how aggressively it could interrogate suspected terrorists detained outside the United States while comporting with the Convention Against Torture.

Among other things, the memo said, "physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." (Translation: As long as the detainee isn't killed while being interrogated, there's no torture.)

For mental anguish to equal torture, the memo said, it "must result in significant psychological harm of significant duration."

That said, Bybee was concerned Monday that the majority decision was undermining the power of the appellate courts in the wake of a string of recent U.S. Supreme Court decisions giving sentencing judges the right to set aside sentencing guidelines.

The two other circuit judges on the DirectTV case wrote defendant Thomas Whitehead's sentence was appropriate. The lower court judge deemed it as such when it was issued in 2005, the majority wrote.

The defendant faced up to 51 months behind bars. The government appealed.

Whitehead was convicted of breaking the Digital Millennium Copyright Act, which forbids the sale of devices that are designed to circumvent a "technological measure" designed to protect copyrighted works.

Chief Judge Alex Kozinski, and Judge Diarmuid O'Scannlain, wrote there was no "abuse of discretion in the district court's conclusion." The majority pointed out that it was a white-collar crime; the defendant has repented, is devoting himself to his house-painting business and to his young daughter, and is "building an honorable life."

Bybee wrote that the non-prison sentence "was not an exercise of discretion as much as an abdication of responsibility."

But the majority concluded that the sentencing judge was "intimately familiar with the nature of the crime and defendant's role in it, as we are not."

Bybee countered. Deferring to a sentencing judge's discretion, he wrote, "does not mean rubber-stamping the court's actions."

The "challenge," Bybee wrote, "is to determine the boundaries of a reasonable sentence for a given conviction and set of individualized circumstances and then decide whether the sentence imposed by the district court sits within these boundaries."

At least we know what torture is.

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