A news item broke late Friday that was quite novel for political retribution stories. Lawyers representing Jose Padilla – the guy who was locked up in a Navy brig for 3 1/2 years as an “enemy combatant” for allegedly attempting to construct a so-called “dirty bomb,” but not formally charged with crimes so as to avoid a hearing at the U.S. Supreme Court – have filed a lawsuit against John Yoo, claiming that a memo he co-authored while working as an assistant attorney general for the Justice Department justified the use of physical and mental harm during interrogations. Some folks call these acts by their brand name: torture.

Who is John Yoo, and what’s at issue? Well, John now teaches at UC Berkeley’s School of Law, and the memo he worked long and hard on was known as the “Bybee Memo,” because it was signed by Jay Bybee. Nevertheless, it was later brought to light that Yoo was the primary author of the memo, and if you want to spend an hour or so reading all 50 pages, you’re more than welcome to. I did, and what I took away from the memo was – to be blunt – an elaborate rulebook for S&M that didn’t have any “safe words.”

First off, what constitutes “torture?” Well, if you’re a lawyer who is advocating for a client (who happens to be the President of the United States) and you’re asking, “hey, is it okay for me or my crew to repeatedly kick a guy in the nuts and not suffer any legal ramifications,” you thumb through the US Code to have a look and see what it says. And lo and behold, you find this:

(1) “torture” means an act committed by a person acting under
the color of law specifically intended to inflict severe physical
or mental pain or suffering (other than pain or suffering
incidental to lawful sanctions) upon another person within his
custody or physical control;
(2) “severe mental pain or suffering” means the prolonged
mental harm caused by or resulting from –
(A) the intentional infliction or threatened infliction of
severe physical pain or suffering;
(B) the administration or application, or threatened
administration or application, of mind-altering substances or
other procedures calculated to disrupt profoundly the senses or
the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be
subjected to death, severe physical pain or suffering, or the
administration or application of mind-altering substances or
other procedures calculated to disrupt profoundly the senses or
personality; and

(3) “United States” includes all areas under the jurisdiction
of the United States including any of the places described in
sections 5 and 7 of this title and section 46501(2) of title 49.

Then you try and figure out if your client can inflict pain and suffering on his favorite punching bag without getting into any legal hot water. You give this a lot of thought and employ a team of legal researchers to help you define the boundaries of legality when it comes to physical harm. After many billable hours, you come up with the following rules:

1. The US Code covers only extreme acts of physical and mental pain.

2. Torture applies only to instances where physical pain leads to death or organ failure, whereas

3. Mental pain leads to long-term afflictions like post traumatic stress disorder.

4. Moreover, mental pain that meets the definition of torture can only be defined as such from the list above. Everything else is seemingly fair game.

5. Therefore, my client (and his agents) can legally inflict cruel, inhuman and degrading acts upon other human beings he labels “enemy combatants.” Why? Because he’s the President of the United States. Okay, let’s bracket that last part for the rest of this journey.

What’s at issue here is this: Can lawyers representing the Executive Branch be liable for the consequences of their advice – when that advice is allegedly unconstitutional? Usually, lawsuits against the government have a high dollar amount attached to them. But this case is unusual in that Padilla’s lawyers are only suing for $1.00. Yeah, only a buck. It’s not the money Padilla’s lawyers are after. It’s a stand for human rights.

But here’s a problem.

A case like this can easily spiral out of the realm of human rights and focus solely on the character of the person whose name is at the top of the lawsuit. Jose Padilla is no angel. Actually, he’s got a more-than-checkered past that includes affiliations with gangs, a road rage shooting, and, when he was a kid, alleged involvement in a gangland murder in Illinois. This guy is no Gandhi or Nelson Mandela, people who have been imprisoned for reasons that make for heroic narratives in history books, films, and TV movies on Lifetime. Nope, on its face, this guy is Grade A scum (if that’s possible). I would not want to be his friend, his neighbor, or even a co-worker.

But that’s not the issue, even though many will make it an issue if this case gets more media attention. The central question of this lawsuit is our liberties. That’s right, our liberties. Yours, mine, Padilla’s, the idiots at Fox News … whoever. Our liberties are rarely eroded from the center. Rather, they get tested at the margins with people like Padilla, who have done illegal and questionable things in their lifetime. At times, it’s very difficult to separate the individual from the constitutional issue that’s at the center of a case like this. You look at Padilla’s life and you wonder: “Why the hell should I support the efforts of a guy like that?” The short answer is: you’re not. You’re supporting the rights that are being chipped away all in the name of security – and being headed up by people who are rather straight laced on the surface.

To wit:

John Yoo’s personal background is, in contrast to Padilla’s, exemplary and admirable. However, the memo he co-authored – the one that gives the Executive Branch legal ammo to inflict physical and mental harm on individuals – is deviant on so many levels that it goes beyond S&M because, quite frankly, there are no “safe” words that can make the pain stop.

Depeche Mode – “Master and Servant” (Download)