Law professor Jonathan Adler — who first brought to my attention this latest glitch in ObamaCare — has his own take here.

Former Vice President Dick Cheney appeared at AEI today to promote his book and again made the claim that waterboarding detainees is not torture because we use this technique on our own troops. As he put it:

“Another key point that needs to be made was that the techniques that we used were all previously used on Americans,” Cheney went on. “All of them were used in training for a lot of our own specialists in the military. So there wasn’t any technique that we used on any al Qaeda individual that hadn’t been used on our own troops first, just to give you some idea whether or not we were ‘torturing’ the people we captured.”

This isn’t a new argument. Plenty of other folks have argued that, because we subject members of the military to waterboarding in Survival, Evasion, Resistance, and Escape (SERE) School (the military’s POW prep course), waterboarding detainees is not mistreatment.

It’s also a nonsensical argument.

The difference is consent. What one person consents to in one set of conditions does not make the same treatment, without consent and in other conditions, somehow less invasive or less illegal under domestic and international law. I was not waterboarded when I attended SERE school, but I endured treatment I wouldn’t willingly accept in other circumstances. If you want to waterboard me, you’d best be ready for a fight.

Export Cheney’s logic to sex. Consenting adults have sex and it’s legal, enjoyable, and essential to the survival of the species. If you accept the premise that, because you can have sex with someone with consent, it is always legal and moral to have sex with others, you’ve just declared that rape is not a crime.

Setting aside the issue of consent, waterboarding was clearly recognized as a criminal act by the laws of war and domestic statute well before we interrogated KSM. We prosecuted our own soldiers for using controlled drowning (the “water cure” and waterboarding) in the Spanish-American War and in Vietnam. We prosecuted Japanese soldiers for using waterboarding after World War II. We prosecuted a sheriff in Texas for waterboarding confessions out of prisoners.

I wrote a piece for the Los Angeles Times a few months back spelling out how Cheney isn’t arguing with Obama here. He’s reliving a battle he lost within the Bush administration:

The legal framework underlying waterboarding collapsed during President George W. Bush’s tenure. The White House Office of Legal Counsel in 2004 withdrew the memoranda that authorized waterboarding. The Detainee Treatment Act of 2005, sponsored by former POW and torture victim Sen. John McCain (R‑Ariz.), barred “cruel, inhuman, and degrading” treatment of any detainee in military custody. There may be an argument that waterboarding isn’t torture, but there’s no argument that it’s not cruel, inhuman and degrading…

The Supreme Court put the nail in the coffin with its Hamdan vs. Rumsfeld decision in 2006. The real import of the ruling was not that Congress had to authorize military commissions (it quickly did) but that the Geneva Conventions apply to the armed conflict with Al Qaeda. The application of the laws of war, which allow broad power to kill your enemy but provide no authority to mistreat him, brought down the legal house of cards that authorized coercive interrogation. Bush issued an executive order the next year that banned the bulk of enhanced interrogation techniques. Obama followed suit with his own order applying stricter military standards to the intelligence community.

Read the whole thing. Read some more on waterboarding and detainees here, here, and here.

The Fourth Circuit’s rulings today in no way affect any other case and should only speed up the Supreme Court’s ultimate consideration of the issues raised in all these challenges. 

The dismissal of Virginia’s lawsuit on standing grounds merely removes one particular plaintiff from consideration, even as 26 states and numerous non-state plaintiffs remain in separate suits. Similarly, the dismissal of Liberty University’s lawsuit, while interesting in that it marks the first-ever finding that the individual mandate is a tax (not for constitutional purposes, but statutorily in a way that cannot be challenged before it’s enforced), doesn’t change the jurisprudential calculus because there was already a split between the Sixth and Eleventh Circuits on the mandate’s constitutionality. 

All of the constitutional issues attending the individual mandate have now been exhaustively ruled upon by three federal appellate courts in four separate cases. While the D.C. Circuit will hear argument in yet another suit later this month, there’s no reason for the Supreme Court to delay its review. 

As President Obama unveils yet another plan to stimulate job creation, it’s time to finally end the uncertainty over the fate of his most economically damaging piece of legislation.

George Will strikes at the heart of modern liberalism this morning with his discussion of David Bernstein’s new book, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform, co-published by Cato and the University of Chicago Press. As Will concludes:

Long execrated by most law professors, Lochner is the liberals’ least favorite decision because its premises pose a threat to their aspiration, which is to provide an emancipation proclamation for regulatory government. The rehabilitation of Lochner is another step in the disarmament of such thinking.

That gets it exactly right. In fact, this new book by Bernstein, a Cato adjunct scholar, is the fourth in a series of books Cato has lately published, all of which are aimed at disarming those who’ve given us the modern redistributive and regulatory state.

Start with Richard Epstein’s How Progressives Rewrote the Constitution and you’ll see the roots of modern “constitutional law” – not to be confused with the Constitution itself – in the thinking of the Progressives, 30 and more years before the New Deal Court instituted that “law.” As Epstein writes: the Progressives “were determined that their vision of the managed economy should take precedence in all areas of life. Although they purported to have great sophistication on economic and social matters, their understanding was primitive. The Progressives and their modern defenders have to live with the stark truth that the noblest innovations of the Progressive Era were its greatest failures.”

Then go to Tim Sandefur’s The Right to Earn a Living: Economic Freedom and the Law and you’ll see what Progressivism has wrought in the way of impediments to economic freedom. Sandefur traces the natural and common law origins of the fundamental right to earn a living and shows, through modern cases, some of which he himself has litigated, how this right has been thoroughly compromised by the Progressive thinking George Will excoriates this morning.

Finally, to sink your teeth into a detailed history and analysis of the right to freedom of contract, you can do no better than to read David Mayer’s new book Liberty of Contract: Rediscovering a Lost Constitutional Right. The book shatters myths that scholars have created about the Progressive Era, including the notion that the Court was reading a “laissez-faire” ideology into the Constitution – as Justice Oliver Wendell Holmes asserted in his Lochner dissent.

And before I forget it, you’ll find these themes throughout the new Cato Supreme Court Review, due out next Thursday. Read all of this and you’ll be well armed to disarm the Progressive thinking that today is increasingly on the ropes, and rightly so.

Last night POLITICO Arena asked:

Who won the Reagan debate?

My response:

Give Rick Perry credit: he had the courage to call Social Security a Ponzi scheme, which it is. As with all such schemes, early entrants got something for nothing (or very little). Late entrants will get nothing for something. Social Security started with 16 contributors for every recipient. It’s now down to fewer that 3, and headed for 2. It’s unsustainable, as Perry said. A private company that ran such a scheme would be prosecuted in less than a New York minute. We should be grateful that a major candidate has finally spoken truth to fiction.

For over a century, Montana citizens have used non-navigable streambeds along their properties for various purposes without objection from the state government. The hydroelectric energy company PPL Montana and thousands of other private parties exercised their rights over these non-navigable stretches that the state never claimed. 

Last year, however, the Montana Supreme Court overturned well-settled state property law by effectively converting the title in hundreds of miles of riverbeds to state ownership. The majority of the court ruled that the entirety of the Missouri, Clark Fork, and Madison rivers were navigable at the time of Montana’s statehood, producing a broad holding that eradicates the right to use rivers and riverbanks that Montanans had enjoyed for over a century.

PPL Montana thus asked the U.S. Supreme Court to review the state court’s decision; Cato filed an amicus brief supporting that request, which the Court granted. Now that the case is before the Court, Cato has joined the Montana Farm Bureau Federation, American Farm Bureau Federation, and National Federation of Independent Business on a brief supporting the property owners.

We are chiefly concerned with two parts of the Montana Supreme Court’s ruling: First, the court incorrectly evaluated navigability for the purpose of establishing title — finding the entirety of the rivers at issue navigable (and thus belonging to the state) because portions of them are — contravening the legal standard established by the U.S. Supreme Court in United States v. Utah (which analyzed the riverbeds section-by-section to achieve a “precise” assessment of navigability). Second, the court effectively transferred a substantial quantity of land from private owners to the state — a judicial taking that violates either the Fifth or Fourteenth Amendments (as the Court described in the recent Stop the Beach Renourishment case, in which Cato also filed a brief). 

In short, the Court should reaffirm the Utah standard for navigability in the context of establishing title and protect private property owners against judicial takings. By doing so, it would send a strong message to state courts across the nation that judicial usurpations of property rights are just as unconstitutional as those undertaken by other branches of government.

The Court will hear the case of PPL Montana, LLC v. Montana late this year or in early 2012. Again, you can find Cato’s brief here.

Today’s date, Sept. 5, marks an important historical event in the development of the right to trial by jury. On this day in 1670, William Penn and William Mead were prosecuted in England for “unlawful assembly,” “disturbing the peace,” and “riot.” These “crimes” arose from Penn having preached near Grace Church to a meeting of several hundred Quakers. 

It was a peculiar trial in many respects. The court, for example, denied Penn’s request to simply read the indictment. But the trial was most notable for the way in which the court tried to bully the jury. When the jury did not come back with guilty verdicts, but a verdict that simply said “guilty of speaking to an assembly,” the court refused to accept that outcome and ordered the jury to return to their deliberations. When the jury returned with a verdict that acquitted Mead of all charges, the court ordered the jury to prison! Next, the jurors filed a writ of habeas corpus challenging the legality of their imprisonment. 

Soon after, an important legal precedent was set for jury independence: jurors cannot be punished for voting their conscience. That’s the story behind “Jury Rights Day.”

Alas, the jury trial has been in a steady decline here in the United States. 

We started out strong. Our Constitution says, “the Trial of all Crimes, except in Cases of Impeachment; shall by by Jury.” And our second president, John Adams, said, “It is not only [the juror’s] right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” 

But these days, the government pressures many defendants to enter into plea bargains so fewer and fewer cases go to trial. And the government no longer wants jurors to vote their conscience. Indeed, it goes so far as to arrest people for distributing pamphlets that discuss these matters. 

We need policies that will once again honor the role that juries play in securing justice.

For a good article, go here. For a good book, go here.