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  • Keith A. Comess - Breaking BadOnce upon a time, long, long ago a group of very intelligent men schooled in Enlightenment principles created a document. These men believed in certain precepts and ideals established in Western societies over the course of hundreds of years. These principles assured citizens a variety of "inalienable" rights and offered them recourse to an impartial legal system that would protect them if and when needed, not only from predatory fellow citizens but also from their own government. That document and the governing principles it enshrined no longer exists from a functional perspective. The men whose quill pens put those precepts on parchment would no longer recognize the land governed. Those men were The Founding Fathers and the land is the United States of America. Through a combination of pandering, propaganda, fear-mongering and intimidation and as a result of collusion between opportunistic politicians and profit-driven corporations, the Bill of Rights is a now but a hollow shell. The Bill certainly no longer applies when considered in the context of the presumption of innocence and sanctity of the home and, as Radley Balko's journalistically brilliant, cogently argued and thoroughly researched book demonstrates, it absolutely no longer applies when the public encounters the police.

    Balko's book begins, as it should, at the beginning. He scrupulously and succinctly establishes the context in which the Third Amendment (an oft ignored but important precept) was written and the understanding it was meant to convey. He analyzes the "common law" concept of the "Home as Castle". He analyzes and encapsulates appropriate case law pertaining to both the Third and Fourth Amendments. The book is, in short, both a legal overview, a concise history and a product of original research. He convincingly demonstrates that the trajectory of civil rights as applied to the police closely parallels that of Walter White in "Breaking Bad": a good idea although fundamentally flawed, gone totally bad. It is an important work.

    After a careful introduction, the author's efforts converge on the near-present era; that is, the era of The Drug War (shorthand for a handy marriage of culture wars and rank opportunism catalyzed by cynical elected officials). Public fear generated by urban rioting and fanned by the popular press; mass Viet Nam War protests; the fabled "Communist menace"; youth rebellion against suffocating moral strictures of the early post-war era made a heady and incendiary mix, waiting only for the appropriate ignitor. As Balko notes (and copiously references), the fuse was lit by RIchard M. Nixon and the fire was vigorously and consistently stoked as "policy" thereafter through the present date by politicians of both parties.

    All of this leads ineluctably to the present day: the day of "no-knock" warrants; the day of asset forfeiture and of mass surveillance; the day where de facto demolition of the presumption of innocence is an empirically established fact; where the "home as sanctum" is no more than a fatuous fantasy; where the abandonment of the concept of privacy has occurred...it's all here and now. Along with it went the total abrogation of the social contract between American citizens and the police forces with whom they can generally no longer relate on a "protect and serve" basis, but (in many cases) as an occupying army interacting with dangerous and untrustworthy charges. In short, the Militarized Police now acting as the Occupying Army with the Predator Cop at the lance point.

    While Balko notes that the prospects of any individual American falling prey (a noun with both literal and figurative connotations in this usage) is "small to nil", that is quite beside the point. The melding of military and police functions, facilitated and encouraged by a variety of national legislative initiatives (the Byrne law and NDAA 1033 are but two of them) and supported enthusiastically by inane legislators, self-aggrandizing law enforcement suborns and encourages abuse. Compliant and oftentimes negligent courts condone and codify abuses. Roland Freisler might be familiar with some aspects of the proceedings, since (as during his tenure in the "People's Court"), most have a foregone conclusion and that just about invariably favors the state.

    Perhaps, as Balko's numerous vignettes illustrate, one "benefit" of the current police regime is it's indiscriminate nature: rich and poor, black and white, old and young all fall beneath the wheel. If, however, the truly powerful encounter the system, Balko provides no evidence of it. One might speculate on unintended consequence vs. conspiracy as explanation, but the author wisely refrains from so doing. In fact, he is relentlessly fair and takes pains to observe (at least twice, per my recollection) that "this is not an anti-police book". He quotes a few luminaries (Joseph McNamera, former San Jose, CA Police Chief and the guilt-ridden former Seattle Police Chief, Norm Stamper) just to illustrate his point. To maintain balance, Balko evenly apportions blame: Nixon, Reagan and the Bush Clan are obvious villains, but so too are Clinton and (most egregiously) Obama (and his law-and-order paladin, Joe Biden). Largely missing from the account is Jimmy Carter but evidently he was acquiescent, if not overtly opposed. The late Senator Sam Ervin emerge along with Supreme Court Justice William Brennan as just about the last bastions of integrity vis-a-vis these troubling issues. It would be remiss to omit Balko's condemnation of the popular press, which extends from the "Paper of Reference" (New York Times) through right-wing talk and television shows to include the Oracle of left-wing journalism, Amy Goodman (of "Democracy Now!" fame).

    The primary shortcoming of the book is the penultimate chapter, "Reform". Balko provides a series of bromides and platitudes which, were they not entirely self-evident and intellectually obvious (if not emotionally compelling to non-reformers) might be helpful. Of course, were they accepted and understood in the first place (or, for that matter, anywhere along the line), the US of A would not be in the present fix. Mobile phone videos are offered as almost a panacea, but their impact has been dulled by the frequency and regularity of their appearance.

    So, how to conclude? The "father" of no-knock raids, former Nixon administration official Donald Santarelli opines that, "I don't think it's possible to roll any of this back now...It would take serious leadership, probably from nobody less than the president. It would take a huge scandal, which doesn't seem likely...But, we're not given to revolutionary action in this country. Each generation is a little more removed from the deep-seated concerns about liberty of the generation before. We just don't seem to value privacy and freedom anymore." These are presceint comments, indeed. We have a "huge scandal" (NSA surveillance revelations) and we have Facebook (acknowledged enemy of privacy). And we have a president who defends it all. "Mediocre times beget empty prophets" (to quote Camus from, "The Fall"). We must live in those "mediocre times".
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