The Russians have retailiated. They have banned 18 Americans from their country because the U.S. banned Russian officials involved in the 2009 death of a lawyer in Moscow who was representing a whistleblower about government fraud. John Yoo, a frequent target of the left in the U.S. was one of those banned and he addressed the false equivalence the Russians (and the Left) have sought to create.

“There is no moral equivalence between the United States and Russia in their treatment of prisoners and detainees. The most obvious difference is in what constitutes “torture” in the Magnitsky case and the American war on terrorism. In the former, even according to Russian officials, Magnitsky was kept in squalid prison conditions, physically beaten by guards and denied medical treatment for serious gall bladder and pancreatic problems. All contributed, it appears, to his death. There is also speculation that he might have been murdered. Yet his treatment should not be considered anomalous. Conditions in Russian prisons are notoriously abominable and the treatment of prisoners routinely brutal.

Antiwar critics likewise claim that the U.S. has similarly mistreated and tortured al Qaeda leaders. This is a willful misreading of the record.”

Scott Johnson tells the story as John Yoo fulfills a dream. He always “dreamed of being declared persona non grata by Moscow.” What the story illustrates, though, is the very common false equivalence used to condemn the U.S. Words such as ‘torture’ lose much of their impact as illustrated in this example. Compare and contrast the treatment that Magnitsky received to the prisoners in Guantanamo Bay. Compare and contrast the reasons that these people were imprisoned in the first place. Excusing extreme behavior and going fanatic over mild behavior distorts definitions, belies integrity, and defines deviancy down to where it is simply a matter of one’s fantasies and not of any substance.

If you saw headlines about a war hero busted for “rudely displaying” a weapon, you should know that it was a Dad with his son on a ten mile hike needed for a merit badge. See the story at RedState.

Cops need to obey the law, too. They also need to keep in mind that they serve citizens and not vice-versa.

“Ultimately, we should spend less time talking about whether nominees’ views are “out of the mainstream” and more time focusing on whether they are correct. For the most part, presidents of both parties are likely to nominate judges who are within the mainstream of their side of the political spectrum, and that mainstream is also likely to enjoy considerable public support (even if not always a majority). But when one side’s mainstream is deeply at odds with the other’s, that suggests that one or both are also badly misguided.”

Ilya Somin thinks that Judicial Nominations and Competing Constitutional “Mainstreams” should be more about judges who are correct.

“there is a big difference between distinguishing between nominees with right and wrong views and distinguishing between those who are inside and outside of the mainstream. A mainstream view of the Constitution can be badly wrong. Indeed, if mainstream liberals are right about constitutional interpretation, that implies that the mainstream conservative view is badly wrong, and vice versa. Similarly, an extremist view can be correct.”

The measure of this is in the split on decisions. The fact that there are so many decisions split 5:4 or even 6:3 indicates that being correct is either overly-difficult or not really in the picture. That is an underlying fundamental law problem.

He’s got some Sobering thoughts on gunfights and the police mindset after reading a 2 part 5 keys to winning gunfights (from a cop who’s ‘been there’ repeatedly) at PoliceOne.com.

The environment flavors the mindset and the police work in an environment that makes it difficult to see ‘normal’ anymore. The routine of wearing body armor is a constant reminder. That is why it’s us vs them, why there are teams that take on a military persona, why cameras get confiscated despite lawsuits and disciplinary action.

It is the tale of regulatory burden, croneyism, and who you know: California Regulatory Burden.

“a 3-1/2 year story of an obviously wealthy gentleman trying to get the local planning board and later the California Coastal Commission to allow him to build a house on his residential-zoned land. I sat up for hours last night reading through it. 42 months and $3 million later, he still is not even close to having his approvals. It is interesting to see his respectful-of-authority tone shifting over time, until at the end he is writing about how he has shifted his company’s new office and expansion from California to Texas.”

The worst part of community is ostracism. How it’s done has changed but the ugliness has not.

A bill presented to the in Washington state legislature is getting some attention. This is likely because it so well illustrates the nanny state approach to society with the idea that government employees are somehow special and better than the citizens. See the story Sheriffs can inspect homes for safe gun storage in Washington state under Democratic weapon bill.

“A new bill working through Washington state’s legislature would allow local sheriffs to enter homes of gun owners to ensure their weapons are properly stored.

The bill, pushed by Democrats, allows police to search where and how assault weapons are stored — as well as how safely they are stored, according to its text, listed in the state’s online legislative directory as SB 5737-2013-14.
…
The definition of a “safely and securely” stored weapon is left largely to law enforcement to decide.”

What with the ‘law enforcement’ killing so many innocents in the recent LA manhunt, the problems of prosecutorial indiscretion, the arrests for public video recording, the problems that resulted in ‘must issue’ laws for concealed carry licenses, and so forth, one has to wonder about just what is driving this sort of idea sufficiently to craft a bill and put it up for legislative vote.

“By any historical marker, the future of Americans has never been brighter. The United States has it all: undreamed new finds of natural gas and oil, the world’s pre-eminent food production, continual technological wizardry, strong demographic growth, a superb military and constitutional stability.

Yet we don’t talk confidently about capitalizing and expanding on our natural and inherited wealth. Instead, Americans bicker over entitlement spoils as the nation continues to pile up trillion-dollar-plus deficits. Enforced equality rather than liberty is the new national creed. The medicine of cutting back on government goodies seems far worse than the disease of borrowing trillions from the unborn to pay for them.

In August 1945, Hiroshima was in shambles, while Detroit was among the most innovative and wealthiest cities in the world. Contemporary Hiroshima now resembles a prosperous Detroit of 1945; parts of Detroit look like they were bombed decades ago.

History has shown that a government’s redistribution of shrinking wealth, in preference to a private-sector’s creation of new sources of it, can prove more destructive than even the most deadly enemy.”

HANSON: Why do societies give up?,

The Washington Times

. It is fuel for the thinking man.

Professor Reynolds has published a short paper about the problem of too many laws — Ham Sandwich Nation: Due Process When Everything is a Crime.

It used to be that the Grand Jury was a bulwark against prosecutorial over-reach but a longstanding aphorism is that a good prosecutor can convince a grand jury to indict a ham sandwich. The accused is at risk and the accuser has very little to lose. That is not a good balance.

” In sum, e-filing helps the IRS with audit selection, costs the Treasury billions through fraud, and transfers many costs of tax administration to you.”

Starkman: E-Filing and the Explosion in Tax-Return Fraud

What this means is that the input is automated, the processing for IRS needs is simplified, but the verification process is insufficient. Things like verifying that the taxpayer ID on the return is the same as the one on the bank account before doing a direct deposit don’t seem to be in the list. With the data the IRS and the government maintains, data mining techniques could be used to help detect and prevent fraud. The private sector, credit card companies for instance, do this.

It appears that the Boy Scouts prevail after 11-year battle over folks who “admitted that they had not tried to use the facilities because they break out in hives if they’re within a canoe’s length of anyone wearing a neckerchief.”

The issue was the use of Balboa Park in San Diego. The decision was by the 9th Circuit Court. 11 years of fighting a court case that should have been thrown out on day one. “The 9th Circuit’s opinion makes it clear that the case should have been tossed on arrival, not left hanging over the Scouts for 11 years like a Sword of Damocles.”

There are intolerant people. What seems rather unique about this era is just how they use the courts to harass, intimidate, and punish those who do not kowtow to their views.

“One can distinguish between violations of the D.C. firearms law that occur as a result of providing information to the public and those that do not. Whether the distinction justifies non-prosecution in the former case is very much another question, but one that falls within the AG’s discretion to decide.

Unfortunately, it’s difficult not to suspect that the AG was moved by the fact that he liked the message behind Gregory’s violation of the law. I can’t help but think that the outcome might well have been different if the “First Amendment informational purpose” had been in service of a pro-gun message. ”
…
“Prosecutorial discretion should not be exercised in the case of flagrant disregard of the law — e.g., a violation that occurs in the face of instruction by the police that the action being contemplated is unlawful.”

Paul Mirengoff describes how David Gregory skates past prosecution. When justice becomes a matter of who you know and who you are rather than what you do, confidence in the law becomes eroded. It is the essence of corruption.

TechDirt has a good rundown on the story about how Police Use HIPAA To Justify Charging Citizen For Recording Them. The new tactic was to use the health information privacy act to go after the citizen doing the recording. That is a stretch.

“The kicker? The deputy who had taken the camera for “evidence” purposes erased all the footage. The exchange in which she took that camera was audio recorded by Henderson separately on his cell phone, a recording which he still has. I would suggest that if the police do not immediately rescind their trumped up charges against him, Henderson should insist that we take the deputy at her word, assume she collected the camera and its footage as evidence, and then we can all begin discussing how much prison time the deputy should be doing for destruction of evidence and obstruction of justice.”

Perhaps the destruction of evidence and obstruction of justice should be used against police officers who engage in this sort of thing. It does seem that formal policies and repeated hand slapping are not making much of an impression.

Then again, the obliviousness to precedent and reality by some police officers in cases like this does seem to be an illustration of just what society is up against in trying to settle many political questions.

“What does it tell you when a new group founded to clamp down on gun-ownership rights announces its formation by trotting out the celebrity victim of a crazed gunman?”

Charles Hurt delves into this one and suggests that Using Gabby Giffords as a mascot is an indication of non-seriousness in debating critical issues.

“Of course, Ms. Giffords has no special qualifications or knowledge whatsoever. All her presence does is chill the debate. No matter how right you are that banning guns or ammunition or creating massive new government lists will not fix the problem, most mannerly people don’t much want to disagree with a woman who just keeps pointing to the bullet wound on her head.”

It is one thing when people argue from a point of ignorance – such as the problem in defining ‘assault rifle’ – but it is another when the fundamental issues of self defense and property rights also get dismissed.

The same phenomena occurred after the Reagan assassination attempt where one of the party suffered head wounds and disability. It is another of those ‘never let a crisis go to waste’ type things and they never ever give up or succumb to reason and reality.

“Thus, Bulger will ultimately encounter much the same disability as Black: an inability to put up a fair fight in a case of unnecessary complexity defended against by a legal team inadequately equipped for the task because of a lack of sufficient time and resources.

These techniques are the rule, not the exception, when the Department of Justice really wants to win a case. When federal drug enforcers decide to go after physicians who recommend drugs for the alleviation of chronic pain in quantities or for conditions that roam outside of drug warriors’ notions of the “good faith” practice of medicine, they indict the doctors under statutes aimed at drug dealers, then freeze their bank accounts.”

Harvey Silverglate, Black and Whitey: How the Feds Disable Criminal Defense.

On the one side: professionals with a bottomless budget. On the other: an individual stripped of his assets. The context: a legal and regulatory environment so complex that there is something for everyone.

Just how is a citizen to know that his government is properly using the weight of government law enforcement? How can government agents be held accountable? What happens if that citizen gets in the cross hairs? Does he have a fair chance?

“The judge ignored a petition signed by 5,000 scientists that demanded the witch hunt to be stopped. The media are silent. When genuine scientists *really* want to protect human lives by offering their expertise as weapons against pseudoscientific misconceptions, they are no longer heroes among the journalists. The dirty journalists only celebrate crackpots who actually spread hysteria that helps to sell the newspapers, for example the global warming crackpots.”

Luboš Motl notes the verdict in the Italy earthquake witch trial: 6 years in prison.

“What these people did was totally fine: they shared their prediction about the earthquake based on their best knowledge of seismology in which they’re among the top Italian experts. A large, magnitude 6.3 earthquake did take place and killed 309 people but it’s not these people’s fault and earthquakes can always arrive unpredictably.

It’s not possible to reliably or semi-reliably predict earthquakes and strong arguments exist that it will always be impossible.
…
“f someone is made responsible for deaths of casualties of a natural catastrophe that can’t be predicted according to any protocol that actually exists, it’s just nothing else than a condemnation of a witch. I often thought that the witch trials were insane and we live in a very different world than Salem, Massachusetts in 1692. But we’re not living in such a different world. We are still controlled by evil loons such as the Italian judge who don’t want to hear anything about the actual abilities and limitations of the current science.”

Scared yet?

It took the jury just three days to award a billion dollars. It opened a new can of worms in the intellectual property wars.

“What are the weapons? IP law. They have copyright, they have patents, and now they have a new weapon of choice — trade dress and design patents — thanks to Apple. And that is why this case is so appalling, because Apple has now opened up a new area for litigation and exclusion.”

Groklaw reports that Samsung Files Motion to Stay Judgment & Why This Case Matters. It is a matter of the big money in software, Microsoft and Apple and perhaps Oracle among others, going after Google’s Android software and FOSS in general.

“Remember too that Apple itself reaps benefits from Open Source software. It switched from its own software to OSX, which is BSD code. Why? Because it was better than what it had done itself. So it surely knows what FOSS can do. Now, it wants to make sure no one else can offer what it offers, even in such basic elements as rectangles with rounded corners and rows of brightly colored icons or ways to touch a tablet that are simply intuitive. Intuitive is just another word for obvious. “

This is just the latest big case in the idea that people could patent ideas and their expression. This came up in the matter of business process patents and other software expressions about 20 years ago. The push has been to patent programming interfaces and now to the fine details of what things look like in a video representation. This broad coverage of intellectual expression as a patent coupled with poor definition, unclear patent claims, large damage risk, and seeming obliviousness to prior art or obviousness is why businesses have to obtain a large patent portfolio such as buying them from a failed company such as Novel or Kodak or building their own or joining in on a consortium. That way they can use their patents to fend off infringement claims in a Mutually Assured Destruction – MAD – lawfare standoff.

The problem with this is that it is the independent or small business entrepreneur who gets cut off at the knees. They can’t afford an extensive patent portfolio and everything they develop is at risk for the company being sued out of business for violating some patent or other. They have to fly ‘under the radar’ until they can either sell out to a big company or can build sufficient resources to fend off attacks before they become a target.

The patent system is being misused in ways that are opposite to its intended purpose. The reason for the state to grant a short term monopoly via patent is to foster innovation and business growth. It used to be that you had to deliver a working model to the USPTO to get a patent. No more. People are now getting patents for processes they can not even demonstrate in use and for minor details in presentation or variations in method. That feeds trolls and creates a feudal system complete with castles and expensive fortifications so that more money is spent on playing the patent game than it is on developing new technologies.

“But the one thing Armstong’s perseverance couldn’t defeat was an out-of-control quasi-governmental agency with government funding and a single-minded vendetta against him.”

The news is about how the U.S. Anti-Doping Agency is crowing because a famous competitive cylcist decided to cease participating as the target of their witch hunt. They presume guilt much as Senator Reid and others presume Romney guilty because he won’t answer baseless allegations. John Hayward has a good summary of the situation in Lance Armstrong: Guilty, even when proven innocent.

The idea that “you didn’t build that” when applied to sports often centers on an unfair advantage via chemical means – doping. The folks who just can’t accept the idea of success as a result of honest effort express that failure in a persistence of prosecution that is amazing as well as dishonest.

“The U.S. Attorney’s Office in L.A. investigated Armstrong for two years, without filing any charges, but that didn’t matter to the USADA. Armstrong noted that some of the charges leveled against him by the anti-doping agency far exceeded their 8-year statute of limitations. He also pointed out in his statement on Thursday that various international cycling organizations declared the USADA’s proceedings improper, questioned their authority to conduct the investigation, called upon them to cease and desist, and advised other athletes to refrain from cooperating in the Armstrong persecution.”

There is also the correlation to note: allegation without substance and often in abuse of the facts, assumption of guilt, improper prosecution, and a persistence that would be admirable if directed towards something profitable and meaningful. Mr. Zimmerman in Florida can sympathize.

“When local, state, or federal law enforcement officers are involved in a shooting, they are immediately told not to say anything about the shooting to investigators for at least two to three days — more importantly, two to three sleep cycles – -after the incident. The same advice holds true for civilians with competent attorneys. The reasoning behind this delay is based upon how the mind stores and accesses memories of high-stress events, and how the same chemical cocktail of hormones that triggers the “fight or flight” response impedes the accurate collection of those memories. There are numerous incidents of police officers being interviewed after an event and having no recollection of even the highly significant act of firing their gun, or of providing investigators a widely inaccurate underestimate of the number of shots fired.”

This provides a recipe to avoid ‘heat of the moment’ witness error courtesy Bob Owens. His topic is about how the George Zimmerman Lynching Further Unravels and the point involves Zimmermans cooperation with authorities and the rather inflammatory statements and abuse of position of those involved in his prosecution.

“All actual physical evidence, medical evidence, and eyewitness statements suggest that Zimmerman’s account of the significant events of that night can be corroborated, and that an overzealous investigator and politically minded prosecutor have manufactured a second-degree murder case that never should have been filed.”

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“So the effect may be to make it impossible for Congress to act vigorously in many areas going forward, because one power source has been cut off and the one that has been allowed is not practically useful.”

Howard Wasserman considers the implications of the SCOTUS only being able to find a Constitutional rationale in social reform is as a tax.

“We are in a period in which no one in Congress wants to enact anything called a tax. First, it makes it impossible to get any Republicans on board, given the influence of the Tea Party and/or Grover Norquist and the generalopposition to all taxes. Second, it is political death because a tax always can and will be demogogued into a “tax increase” and used to bludgeon any official to death in the next election.”

From reading the Federalist Papers, it appears that this was an intended check on the powers of the Government. A Congress acting “vigorously” was seen as a threat and the reactions of the people to taxes was considered a limitation on Congressional over-reach.

“Justices like John Roberts epitomize the vast difference between judicial review and judicial supremacy/tyranny. In the ObamaCare ruling, he has dumped the health care issue right back into the laps of the American people and their elected representatives. That is exactly where it belongs.”
…
“This ruling should not be seen as a defeat for the American people or as an imposition of tyranny, as some are shouting. It should be regarded as, hopefully, the beginning of a new era in American jurisprudence, a time when judicial review comes to be applied prudently, sparingly — and rarely.”

Paul Jacobson describes his take on John Roberts v. ObamaCare: An Apologia. His take is that the restraint to overturn a law provides a marker for the journey away from a judicial oligarchy. The key idea is that the court minimized meddling in the actions of the other branches of government. With PPACA, the court upheld rights of states against undue federal government pressure and clarified the nature of the debate about just what the ‘individual mandate’ really was.

In both of the major issues, a matter of proportionality was considered. For the states in regard to Medicaid, it was about just how much monetary support was involved in pushing states to go along with the federal efforts. With the individual mandate issue, the matter rested on a comparison between the cost of health insurance versus the ‘tax’ to be imposed if one did not purchase any.

The nature of the debate changed, not the law. That means that the political arguing may be more honest. The PPACA was pushed through Congress with significant confusion about exactly how it was to be funded, both in selling the act and in procedural mechanisms used to get it through. That confusion is now laid bare and those who depended upon that confusion to support their views can now be held accountable for their dishonesty.

Those who wanted the court to throw out the health care act did get their views examined and even supported. Those who still want the act declared unconstitutional are now forced to resort to defining the appropriate limits to the taxation power of Congress. That debate is not really settled as it involves whether the Constitution’s assertion of ‘general welfare’ includes only enumerated powers or not. That debate got a good start in the Federalist Papers with Madison and Hamilton on either side of it (wikipedia)

Fundamentally, the issue is about the vote of the people. The disappointment is that a small group of judges did not overrule law established by the people’s elected representatives. The question here is whether this shoveling of responsibility from an oligarchy to the people will also apply to such issues as California’s proposition 8 state constitutional amendmendment and other such topics,