Long before 9/11, the government had maintained a comprehensive spying program to fend off any perceived threats to the American system. Except that the targets of this surveillance were not threats to anything except to the status quo. This was Cointelpro, short for counter-intelligence program, an FBI operation that began in the 1940s and ended in the mid-1970s, the post-Watergate era and Congress and the media began taking a hard look (for the first) time at the massive bureaucracy put in place by notorious FBI head J. Edgar Hoover.

Cointelpro spied on thousands of Americans, and sometimes that surveillance went beyond tapped phone calls and intercepted correspondence. That kind of surveillance is bad enough, but the FBI also destroyed lives and played a role in domestic political assassinations in the name of "national security." Nearly all this surveillance and disruption was focused on left-wing Americans who strongly opposed the status quo through anti-Vietnam war protests, support for revolutionary movements around the world and advocacy against a U.S. economic system in favor of more egalitarian policies. Cointelpro is a dark period in American history, and this country is a much freer place without it.

Why is all of this relevant, decades after Cointelpro shut down? Because Cointelpro records are still coming to light. Sometimes Cointelpro went after celebrities as opposed to local, anonymous leftists. A decade ago, it was revealed that the Nixon administration tried like the devil to deport former Beatle John Lennon. This time around, records show that the government was surveilling radical historian Howard Zinn, a hero to many progressives for his landmark book, A People's History of the United States, which examined American history from the perspective of civil rights and labor activists and the other social movements which stood up against unjustified war and economic policies. This book is a rite of passage for many college students who were force-fed stories about American exceptionalism for 12 years in grade school.

As summarized by Raw Story:

On Friday, the FBI released a 243-page file on Zinn, who died in January at age 87. The release describes the historian as "radical." The documents show the bureau taking an active interest in Zinn since the late 1940s, when he was a student at New York University. The interest continued through the 1950s, as Zinn worked on his PhD at Columbia University.

When the FBI again took an interest in Zinn in the 1960s, documents show the bureau evidently tried to have the historian fired from his job as professor at Boston University.

In a document from the Boston FBI office (see PDF file here), an FBI "source," whose name was redacted from the publicly released documents, was quoted as being outraged over Zinn's comment at a protest that the US had become a "police state" and that prosecutions of Black Panther Party members were creating "political prisoners."

The bureau's Boston office then indicated it wanted to help the source in his or her campaign to unseat Zinn. "[The] Boston [office] proposes under captioned program with Bureau permission to furnish [name redacted] with public source data regarding Zinn's numerous anti-war activities ... in an effort to back [redacted] efforts for his removal."

The new Cointelpro records on Zinn show the government was obsessed with the Brooklyn-born university professor who served as a fighter pilot in World War II. He turned against the Vietnam war and led rallies in the 1960s and 1970s. One of his targets was government surveillance against anti-war activists. Did he know the government was spying on him? He probably suspected it.

So the FBI tried to have Zinn fired from his job, in part, because he criticized the FBI's repressive tactics. This may sound shocking to anyone not familiar with Cointelpro, but it's actually par for the course. That the government could go after high profile people like John Lennon and Howard Zinn for their left-wing activism shows how ruthless the so-called anti-communist crusade really was. Anyone could be a target, and many people were. This kind of surveillance was totally illegal, and it further confirms my view that the United States did not fully become a democratic country until the day that Congress shut down Cointelpro in the mid-1970s.

A Federal appeals court in New York City has struck down as unconstitutional the FCC's broadcast standards intended to get "fleeting expletives" and other foul-mouthed utterances off the air. The Court holds that the guidelines are too vague and have the effect of chilling First Amendment speech.

The case is Fox Television Stations v. FCC, decided on July 13. The FCC has been trying to police vulgar language on television for decades, most famously in the 1970s, when it took George Carlin's 12-minute "seven dirty words" monologue all the way to the Supreme Court, which held in 1978 that the government had greater leeway to regulate speech on radio and television since these mediums were easily accessible to children.

It was a different world in the 1970s, when cable television was in its infancy and there was no Internet. We only had a few channels back then, and it was much easier for children to watch objectionable programming. Despite the explosion of new media, though, over the last 10 years, the FCC stepped up enforcement of expletives on radio and television after celebrities like Bono and Cher (among others) proved themselves incapable of uttering even a public statement without using obscene language. These were called "fleeting expletives" in that the broadcasters did not know this language was coming and therefore could not prevent them. That did not stop the FCC from treating these incidents as violations of government policy, which could cost broadcasters thousands of dollars in fines.

Adopted in 2001, the FCC's indecency policy punishes broadcasters for language that describes or depicts sexual or excretory organs or activities. It also prohibits "patently offensive" language as measured by "community standards." The Court of Appeals strikes down these standards as too vague to place broadcasters on proper notice of when they are going to be fined. In illustrating why this is so, the Second Circuit provides examples that necessarily require the Court to use foul language (like "fuck" and "shit") in fleshing out the opinion. In fact, I have never seen a Second Circuit opinion with so much potty language.

The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. The Court observes, "[t]hus, the word 'bullshit' is indecent because it is 'vulgar, graphic and explicit' while the words 'dickhead' was not indecent because it was 'not sufficiently vulgar, explicit, or graphic.' This hardly gives broadcasters notice of how the Commission will apply the factors in the future."

While the FCC says it needs a flexible standard because broadcasters will try to subvert the censorship laws, that argument only further shows how vague the standards really are. The Court of Appeals notes that "If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so."

The FCC does exempt expletives if they are essential to a particular program or part of a "bona fide" news broadcast. In light of the FCC's inconsistent application of this test (which protects foul language in moves like Saving Private Ryan but not gratuitous cursing during the Golden Globe Awards), this cannot work, the Court of Appeals says. "There is little rhyme or reason to these decisions and broadcasters are left to guess whether an expletive will be deemed 'integral' to a program or whether the FCC will consider a particular broadcast a 'bona fide news interview.'” Broadcasters are going to have to guess whether certain obscenities run afoul of the FCC's decency rules. The First Amendment cannot tolerate this. As the Second Circuit notes:

[W]hen Judge Leval asked during oral argument if a program about the dangers of pre-marital sex designed for teenagers would be permitted, the most that the FCC’s lawyer could say was “I suspect it would.” With millions of dollars and core First Amendment values at stake, “I suspect” is simply not good enough.

The zinger here is that there is evidence that the vague broadcast standards have, in fact, chilled free speech. There is no greater threat to free speech than evidence that vague rules will make broadcast and radio executives think twice about certain programming. For example, under the FCC's revised speech standards, some CBS affiliates were afraid to re-broadcast a documentary on 9/11, which included foul language from real footage of the World Trade Center attack. A radio station canceled a planned reading of a Tom Wolfe novel because it contained adult language. Bona-fide news programs are also being chilled, particularly political debates involving a politician who had previously used expletives on the air.

How would you like to be strip-searched? In New York, jails cannot strip-search inmates willy-nilly. Under the Fourth Amendment (prohibiting unreasonable searches and seizures), people arrested on misdemeanors, for example, cannot be searched this way. That rule more or less applies around the country. But it gets violated all the time. It even happened in Iowa.

Some women in Iowa went to President Bush's campaign rally in September 2004. They were charged with trespassing because they were standing where they were not supposed to be. They showed up not to praise Bush but to condemn the Iraq war. The strange reality that First Amendment lawyers discovered over the last few years is that presidential rallies carry different free speech rules than other rallies and that Secret Service are given significant leeway in regulating these events in the name of security. So that when no one told these protesters they they could not stand in certain areas near the rally, they were arrested for trespass and sent to the County jail. As described by the federal appeals court which ultimately heard the case, here is what happened at the jail:

After being arrested and charged with simple misdemeanor trespass under Iowa law, the two women were taken to the Linn County jail. At the jail, despite the fact neither woman was suspected of hiding weapons or contraband and had only been charged with a simple misdemeanor, Linn County Deputy Sheriff Michelle Mais conducted a "full strip search" of the two women in violation of jail policy. The "full strip search" required the two women to strip naked and included a visual body cavity search. In a visual body cavity search, detainees must bend over and spread their buttocks and allow an officer to inspect their rectal area. The visual body cavity search also included an inspection of the women's vaginas. While Nelson was searched, the top half of a Dutch door to the room in which the search took place was open, and male jailers passed by the open door during the search.

The trespass charges were dropped, which means they were totally innocent. The strip-search was unauthorized and humiliating. When the case went to trial against jail officials for the illegal search, the women testified about what it felt like to be searched like this. So lets play a little game here: imagine your mother or your sister is testified as these women did at trial:

At trial, McCabe and Nelson described the humiliation and trauma they experienced as the result of being forced to stand naked in front of a complete stranger and expose intimate parts of their body. Barb Hannon bailed the two women out of jail and described them as being in "shock." Both spent the night crying. When describing the search, McCabe testified she was "horrified." She said it was "like it was happening to another person, like – like I was almost standing back watching this happen to me, because I just couldn't – I couldn't wrap my brain around what was going on." Nelson testified she was "humiliated, and I felt violated. I felt as though I had lost control of my own body. I couldn't imagine many things that would be worse." Nelson was diagnosed with depression following the arrest and search, and obtained medical treatment for her depression.

The jury, God bless 'em, ruled in the womens' favor on the strip searches, awarding them so much money that the trial court had to schedule another trial to ensure that the damages award was more in line with acceptable standards. The new is not that they won the case but that courts have placed clear limits on when jail officials can strip-search detainees -- particularly people who have not yet been convicted of anything -- but those rules are routinely ignored. Even in New York, which probably deems itself more enlightened than Iowa, strip-search rules are regularly ignored, to the embarrassment and humiliation of the victims of this municipal malfeasance. We often hear about sex scandals and bribery scandals and even environmental scandals. Ever hear of a Fourth Amendment scandal?

We watch in horror as the oil spewing through the Gulf of Mexico washes ashore New Orleans and the rest of the southern states. This was no natural disaster, this was a man-made disaster. It comes at a time when the country is debating the usefulness of regulations, as if the Wall Street meltdown in 2008 -- resulting from the go-go years of unrestricted investing -- did not put that debate to rest.

The dirty secret of American politics is that both political parties are weak on regulatory policy. The Republicans may be worse than the Democrats, but both parties are beholden to corporate America and the view that it's all OK if someone is making money. The men with the money are the ones who donate to the political campaigns, but more broadly, capitalism is the national religion, and pro-regulation politicians and thinkers are still labeled as anti-business and even anti-American.

The below article from the New York Times on May 14, 2010 confirms that this oil disaster did not have to happen. The government was not enforcing regulations intended to prevent this problem, and this omission was conscious, not negligent. I am reprinting the article in full. The ways in which profiteering is reasonably regulated to protect health, safety and environmental concerns remains an under-appreciated aspect of American government. But this ain't no Lady Gaga. It's the difference between a sustainable ecosystem and death. When are we going to start to care?

May 13, 2010 U.S. Said to Allow Drilling Without Needed Permits By IAN URBINA

WASHINGTON — The federal Minerals Management Service gave permission to BP and dozens of other oil companies to drill in the Gulf of Mexico without first getting required permits from another agency that assesses threats to endangered species — and despite strong warnings from that agency about the impact the drilling was likely to have on the gulf.

Those approvals, federal records show, include one for the well drilled by the Deepwater Horizon rig, which exploded on April 20, killing 11 workers and resulting in thousands of barrels of oil spilling into the gulf each day.

The Minerals Management Service, or M.M.S., also routinely overruled its staff biologists and engineers who raised concerns about the safety and the environmental impact of certain drilling proposals in the gulf and in Alaska, according to a half-dozen current and former agency scientists.

Those scientists said they were also regularly pressured by agency officials to change the findings of their internal studies if they predicted that an accident was likely to occur or if wildlife might be harmed.

Under the Endangered Species Act and the Marine Mammal Protection Act, the Minerals Management Service is required to get permits to allow drilling where it might harm endangered species or marine mammals.

The National Oceanic and Atmospheric Administration, or NOAA, is partly responsible for protecting endangered species and marine mammals. It has said on repeated occasions that drilling in the gulf affects these animals, but the minerals agency since January 2009 has approved at least three huge lease sales, 103 seismic blasting projects and 346 drilling plans. Agency records also show that permission for those projects and plans was granted without getting the permits required under federal law.

“M.M.S. has given up any pretense of regulating the offshore oil industry,” said Kierán Suckling, director of the Center for Biological Diversity, an environmental advocacy group in Tucson, which filed notice of intent to sue the agency over its noncompliance with federal law concerning endangered species. “The agency seems to think its mission is to help the oil industry evade environmental laws.”

Kendra Barkoff, a spokeswoman for the Interior Department, said her agency had full consultations with NOAA about endangered species in the gulf. But she declined to respond to additional questions about whether her agency had obtained the relevant permits.

Federal records indicate that these consultations ended with NOAA instructing the minerals agency that continued drilling in the gulf was harming endangered marine mammals and that the agency needed to get permits to be in compliance with federal law.

Responding to the accusations that agency scientists were being silenced, Ms. Barkoff added, “Under the previous administration, there was a pattern of suppressing science in decisions, and we are working very hard to change the culture and empower scientists in the Department of the Interior.”

On Tuesday, Interior Secretary Ken Salazar announced plans to reorganize the minerals agency to improve its regulatory role by separating safety oversight from the division that collects royalties from oil and gas companies. But that reorganization is not likely to have any bearing on how and whether the agency seeks required permits from other agencies like NOAA.

Criticism of the minerals agency has grown in recent days as more information has emerged about how it handled drilling in the gulf.

In a letter from September 2009, obtained by The New York Times, NOAA accused the minerals agency of a pattern of understating the likelihood and potential consequences of a major spill in the gulf and understating the frequency of spills that have already occurred there.

The letter accuses the agency of highlighting the safety of offshore oil drilling operations while overlooking more recent evidence to the contrary. The data used by the agency to justify its approval of drilling operations in the gulf play down the fact that spills have been increasing and understate the “risks and impacts of accidental spills,” the letter states. NOAA declined several requests for comment.

The accusation that the minerals agency has ignored risks is also being levied by scientists working for the agency.

Managers at the agency have routinely overruled staff scientists whose findings highlight the environmental risks of drilling, according to a half-dozen current or former agency scientists.

The scientists, none of whom wanted to be quoted by name for fear of reprisals by the agency or by those in the industry, said they had repeatedly had their scientific findings changed to indicate no environmental impact or had their calculations of spill risks downgraded.

“You simply are not allowed to conclude that the drilling will have an impact,” said one scientist who has worked for the minerals agency for more than a decade. “If you find the risks of a spill are high or you conclude that a certain species will be affected, your report gets disappeared in a desk drawer and they find another scientist to redo it or they rewrite it for you.”

Another biologist who left the agency in 2005 after more than five years said that agency officials went out of their way to accommodate the oil and gas industry.

He said, for example, that seismic activity from drilling can have a devastating effect on mammals and fish, but that agency officials rarely enforced the regulations meant to limit those effects.

He also said the agency routinely ceded to the drilling companies the responsibility for monitoring species that live or spawn near the drilling projects.

“What I observed was M.M.S. was trying to undermine the monitoring and mitigation requirements that would be imposed on the industry,” he said.

Aside from allowing BP and other companies to drill in the gulf without getting the required permits from NOAA, the minerals agency has also given BP and other drilling companies in the gulf blanket exemptions from having to provide environmental impact statements.

Much as BP’s drilling plan asserted that there was no chance of an oil spill, the company also claimed in federal documents that its drilling would not have any adverse effect on endangered species.

The gulf is known for its biodiversity. Various endangered species are found in the area where the Deepwater Horizon was drilling, including sperm whales, blue whales and fin whales.

In some instances, the minerals agency has indeed sought and received permits in the gulf to harm certain endangered species like green and loggerhead sea turtles. But the agency has not received these permits for endangered species like the sperm and humpback whales, which are more common in the areas where drilling occurs and thus are more likely to be affected.

Tensions between scientists and managers at the agency erupted in one case last year involving a rig in the gulf called the BP Atlantis. An agency scientist complained to his bosses of catastrophic safety and environmental violations. The scientist said these complaints were ignored, so he took his concerns to higher officials at the Interior Department.

“The purpose of this letter is to restate in writing our concern that the BP Atlantis project presently poses a threat of serious, immediate, potentially irreparable and catastrophic harm to the waters of the Gulf of Mexico and its marine environment, and to summarize how BP’s conduct has violated federal law and regulations,” Kenneth Abbott, the agency scientist, wrote in a letter to officials at the Interior Department that was dated May 27.

The letter added: “From our conversation on the phone, we understand that M.M.S. is already aware that undersea manifolds have been leaking and that major flow lines must already be replaced. Failure of this critical undersea equipment has potentially catastrophic environmental consequences.”

Almost two months before the Deepwater Horizon exploded, Representative Raúl M. Grijalva, Democrat of Arizona, sent a letter to the agency raising concerns about the BP Atlantis and questioning its oversight of the rig.

After the disaster, Mr. Salazar said he would delay granting any new oil drilling permits.

But the minerals agency has issued at least five final approval permits to new drilling projects in the gulf since last week, records show.

Despite being shown records indicating otherwise, Ms. Barkoff said her agency had granted no new permits since Mr. Salazar made his announcement.

Other agencies besides NOAA have begun criticizing the minerals agency.

At a public hearing in Louisiana this week, a joint panel of Coast Guard and Minerals Management Service officials investigating the explosion grilled minerals agency officials for allowing the offshore drilling industry to be essentially “self-certified,” as Capt. Hung Nguyen of the Coast Guard, a co-chairman of the investigation, put it.

In addition to the minerals agency and the Coast Guard, the Deepwater Horizon was overseen by the Marshall Islands, the “flag of convenience” under which it was registered.

No one from the Marshall Islands ever inspected the rig. The nongovernmental organizations that did were paid by the rig’s operator, in this case Transocean.

Campbell Robertson contributed reporting from New Orleans, and Andy Lehren from New York.

This article has been revised to reflect the following correction:

Correction: May 15, 2010

A previous version of this article misidentified the government agency where Kendra Barkoff is a spokeswoman. She is with the Interior Department, not the Minerals Management Service.

I have been counting down the greatest live rock and roll performances of all time. Scroll down for numbers nine through two. We have now reached number one.

The Allman Brothers are still around today, but it was only a brief run with the great guitarist, Duane Allman, who died in 1971 in a motorcycle accident. Another band member died a year later, also in a motorcycle accident. Praise the Lord that the Allman Brothers recorded the Fillmore concerts from 1971. That double album has not a wasted note. The highlight is this song, the greatest live performance of all time, In Memory of Elizabeth Reed, an instrumental that just goes on forever, and you wish it could go on forever, but it ends after 13 minutes. These boys could play, and I have never heard anything better.

There are two ways to take in this performance. The full, uncut version is available from Grooveshark. The YouTube version is below.

As we count down the greatest live performances in rock history -- only one to go! -- let's a take a moment, as they say in the new-age world, to reflect and review. Reflect on my own concert experiences over the last 28 years since the time, as a 15 year-old, that I walked into Nassau Coliseum for the first time to see the Police.

It may not sound remarkable to say that my first concert was the Police at Nassau Coliseum, but it was. Seeing a great band in its prime is a rarity. Nowadays, bands and performers play live until they drop. The economics of the industry demand it. Royalties from album sales are dropping like a rock now that music fans are stealing music right and left and sharing files and listening to free music in YouTube and Grooveshark. Playing live is the best way for these bands to make any money.

In 1982, there were fewer oldies acts. The Police had been making records for only 4 years, but their career was still on the upward trajectory. Their biggest album, Syncronicity, was still a year away, and during summer 1983 I saw the Police again at Shea Stadium. The Nassau show was better, more intimate. Shea is too large to see a concert. And the show was so big that two bands opened for them. The opening act for the opening act was an unknown band from Georgia that the rock critics loved and that I had barely heard of. I did not pay attention when they played a 20 minute set. I should have. R.E.M. was about to release one of the five best albums of the 1980's, Murmer.

The New York metropolitan area is the most prominent market for rock concerts. So large that when I was in high school in the early-to-mid 1980s you could not see the top-shelf acts without paying a scalper. Tickets were less expensive back then. Tickets for the Police show at Nassau cost only $12 (we sat in the upper deck, behind the stage), and I paid my buddy, a scalper, $20. That buddy was responsible for the memorable shows I saw in high school: David Bowie; Genesis; the charity benefit at Madison Square Garden with Eric Clapton, Jeff Beck and Jimmy Page; The Who at Shea Stadium (the Clash opened the show).

Sometimes you went to concerts just to see certain legendary performers, even if they were past their prime, like the Beach Boys, Moody Blues and Yes, all playing in the mid-1980s. They seemed old, but they were not much older than I am today. Maybe the concert highlight of the time was U2 at Giants Stadium promoting the Joshua Tree album, in 1987. I drove down from college with a guy who lived in my dorm (we sat in different areas). Little Steven from Bruce Springsteen's band opened up and taunted the Reagan administration with a profane tirade against Oliver North.

Sometimes I got lucky. I saw the Grateful Dead in 1995 only a few weeks before Jerry Garcia died. We saw Jerry dying right there on stage, I guess. It was not a great show, and it was hotter than hell, I tell ya, but I always said I wanted to see the Dead at least once, and that's all I got. I also saw Stevie Ray Vaughn a few times in the mid-1980s. No one could know he'd die in a helicopter crash in 1990. Same goes for Frank Zappa, who left us in 1993.

The coolest and strangest concert experiences come to mind. Bruce Springsteen at Giants Stadium in September 2009 included the Born to Run album in its entirety. I see now that Springsteen is religion in New Jersey. His shows resemble some kind of revival. Todd Rundgren playing in a cape and bare feet in Poughkeepsie in 1995. Some lunatic throwing an explosive into the moat at Jones Beach Theater during an Eric Clapton show in 1983. Lucinda Williams in 2009 stopping her show in Peekskill, N.Y., because she did not like the acoustics and making the audience wait a few minutes while she coordinated the sound system anew. Taking my 80 year-old mother-in-law to see K.D. Lang in Kingston, N.Y., last year.

The best concert experience was seeing Yo La Tengo at Colony Cafe in Woodstock, N.Y., in 2007. Yo La Tengo is an alternative rock band that sometimes takes requests from the audience and tells stories between songs when it plays in small venues. I went because I was digging their new album at the time, which had a fantastic song, The Race is On Again, which blew my mind when I heard it for the first time one day on the road and I played it over and over like 20 times. I had to see Yo La Tengo at Woodstock!

There is nothing like Woodstock in the autumn chill. The good wife came along, and we got a table one level above the stage, no more than 15 feet from the band. I couldn't see the guitarist finger the chords, but I got a great view of the drummer's head. When I realized that the band was not going to play the new album in its entirety, I gathered the nerve to shout out, "I have a request." The singer/guitarist was sitting down so he didn't turn around. He just responded, "which is ...?" I shouted, "The Race is On Again." They played it, a mesmerising performance, as cool as the album version. I felt like a little kid who got an autograph at Yankee Stadium. Good timing for me. The band then played its encores, incluing an NRBQ song that I had never heard, a great version of this mysterious song.

The next day, I found the Yo La Tengo website and sent the band an email to request the name of that NRBQ song. I also told them I was the guy who made the request. The band responded right away! The NRBQ song was "Hit the Hay." And they thanked me for the request, said it was a good song to play live. Instant email communication from the band you saw the night before. The millionaire bands would never do this, and if they did it would be from a public relations intern. I'm pretty sure it was the band that responded to my question. How cool was this?

Number 2. It's been quite a ride tracking the greatest concert performances of all-time. Number 10 was talking Heads' Once in a Lifetime. Number 9 was Grateful Dead's Bertha from 1978. Eight was the Beatles Rooftop Concert, from 1969, right before the breakup. Lucky number 7 was the Who's Young Man's Blues, from Live at Leeds. Number 6 could only be Joni Mitchell at the Last Waltz. U2 lands in fifth place, with Electric Co., from the 1983 live album. Springsteen's Rosalita is number 4. And Eric Clapton's 1971 performance at the Fillmore East is number 3. Scroll down below to see the videos.

We are now at number 2. When you're number 2, you try harder. But there is no embarrassment in being number 2. Jimi Hendrix is number 2, his performance of Hey Joe, at the Monterey International Pop Festival, from 1967.

Jimi only became a household name in 1967, after playing around with the Isley Brothers and Little Richard in the early-mid 1960s. His first album came out in early 1967, and his appearance at Monterey introduced him to the American rock community. What a performance! Jimi looked the part, wearing an outrageous outfit, wild hair and looking like no one that anyone had ever seen before. And he played with his teeth.

Jimi was just getting started in 1967, but he only had a few years left. He died in September 1970. That's not a lot of time, but Jimi sure made the most of his time in the studio recording hundreds of hours of music that the record company is still releasing to this day. There are many live albums to play with, and they are all very good. But live Jimi is about seeing live Jimi. This clip may be number 2 on my list, but visually it's number 1 all the way.

Eric Clapton has been around a long time. Forty years ago, he was considered the best guitarist in rock and roll. But Eric had a problem. He was in love with George Harrison's wife. George was Eric's best friend. This caused a lot of emotional problems for Clapton. Eric was also using hard drugs. From 1966 through 1970, he did release some great albums, first working with John Mayall's Bluesbreakers, then Cream, the Blind Faith, and then his solo career, calling his band Derek and Dominos.

This concert was from 1970, when Derek and Dominos played the Fillmore East in New York City. No one knew that Clapton would go into seclusion shortly after this concert. He came back in 1974 playing much more laid back music, almost morphing into country rock with some blues solos to remind us that he still had it going on. No one knew that this performance was the absolute greatest moment of Clapton's career, and that the downhill slide that awaited him was right around the corner. This performance was as good as it was ever going to get. The intro alone makes it into the top 10 (for the top 10 so far, click on www.psychsound.com and scroll down the list).

Number 10 was Talking Heads. Number 9 was Grateful Dead. Number 8 was The Beatles' rooftop concert. The Who was Number 7. Six was Joni Mitchell at the Last Waltz. Five was U2's Electric Co. Scroll down for them all. We are now up to number 4. Number Four is Bruce Springsteen, maybe the greatest live performer of all-time. I have many, many Springsteen live CD's and Mp3's, some from the mid 1970's and some from the 2000's. I saw him at the Meadowlands for the first time in 2009. No one plays it like Bruce, a tireless performer. This one's Rosalita, a rave-up from 1978.

Did you know that Springsteen's first two albums flopped? Greetings From Asbury Park and The Wild, The Innocent, the E Street Shuffle were both released in 1973. Rosalita was from the E Street Shuffle album. No one was buying. Then Bruce released Born to Run in 1975 and after Time and Newsweek threw him on the cover the same week, he became the superstar who helped bring rock out of the 1960s and into the 1970s. Hard to believe those first two albums did not sell. How can a song like Rosalita be a secret for so long?

This video is a must-see. This is prime Bruce. This could have been my number 1 choice. But, it isn't. But I will say this: choices 3 through 1 all predate this Springsteen performance. Which means that Rosalita from 1978 is the greatest live performance of the last 30 years.

We are up to number 5 on the Greatest Live Performances List. Scroll down for numbers 10 through 6. Number 5 is U2's performance at Red Rocks in 1983, a show that became the live album that caused a lot of us to realize that the new decade had its own rock superstars who were going to be as good as their predecessors. U2 was getting off to a good start, and they were only going to get better.

Almost halfway there! If you're a Johnny Come Lately, number 10 was Talking Heads' Once in a Lifetime. Number 9 was the Grateful Dead's Bertha. Number 8 was the Beatles rooftop concert. Number 7 was The Who's Young Man's Blues, from Live at Leeds. Scroll down to see videos of each song.

Number 6 can only be Joni Mitchell's Coyote, performed at the Last Waltz in 1976. The Last Waltz was the final concert of The Band. If you didn't know, there was a band called The Band. Most bands break up quietly. Not The Band. They turned it into a federal case, inviting their friends to play along. See how they all got along during this song? So why did The Band stop performing together. I believe it was because they weren't getting along. That did not stop Joni from turning in a tour de force.

Joni Mitchell is fantastic. I have never heard a bad Joni song. She played guitar like no one else, using alternate tunings, giving her a unique sound. Throw in her Canadian voice and you got the best performance from a great concert. It was The Band's concert, but Joni Mitchell stole the show.

Lucky number 7. Scroll down for numbers 8 through 10. The Who could really shake it in their prime. Live at Leeds is one hell of a live album. Recorded just as The Who were hitting their stride, in 1970. The highlight of that album is Young Man's Blues, with a searing Pete Townsend guitar solo. You didn't know Pete Townsend was a great guitar player? Oh, yes he was.

The Who were the great live band of the 1970's, Pete Townsend oozed rock and roll. You'll know that if you watch any concert footage from that period. The death of beloved drummer Keith Moon in 1978 was a real speed bump in the history of the band. Moon was replaced, but The Who skipped a beat. When I saw them in 1982 at Shea Stadium, The Who were good, but not great. You cannot turn back the clock. But there are no has-beens in rock music. Only high points. This one's a high point.

We're at number 8 already? Number 10 was Talking Heads' Once in a Lifetime. Number 9 was Grateful Dead's Bertha. Number 8 is upon us.

Beatles Rooftop Concert: Get Back (1969)

When the Beatles stepped off the stage at Candlestick Park in 1966, only they knew it was their last concert. They took some time off and then went into the studio to record the Sgt. Pepper's album. Concerts were pointless by 1967. Their music was too sophisticated to play it live, and they needed the time to perfect the music in the studio. By 1969, the Beatles were not even getting along anymore, and it's a miracle that they agreed to the performance below.

This is not really a concert. The Beatles were recording and filming the Let it Be album in early 1969 when they decided to set up on the roof of their office building in London. That's right, the Beatles had an office building for Apple Corps, the business they set up after their manager, Brian Epstein, died. The Beatles were not getting along, and the fact that they became businessmen made things worse. Playing a concert on the rooftop would liven things up, but it didn't last. Some killjoy called the police, and that was that. Don't you wish you were there?

We're at number 9. Click here for number 10. The Grateful Dead are known as one of the all-time great live bands, but when I saw them in 1995 for the first time (a few months before Jerry Garcia left the building) they were running out of gas. Still, weak Dead is better than no Dead at all. Bertha is shown below. This one's from 1978, a period that many Deadheads regard as their finest. This one's got a nice riff, I'll say that. Many of them did.

Thanks to YouTube, I can identify the greatest live performances in rock history. It occurs to me that nearly every rock and roller has released live albums, many of them sub-par. But there are some real gems, and some live versions are better than the studio versions. Over the next few weeks, I will list the greatest live performances in rock history, counting down to number 1. Comments, hate mail, suggestions and cash (especially cash) are welcome.

Number 10: Once in a Lifetime -- Talking Heads (1983)

The studio version is OK. But the live version is the highlight of Talking Heads' concert movie, Stop Making Sense. The song funks along for a few minutes, and David Byrne is not afraid to let it shake. Things pick up toward the end as the band reaches the climax. David brings it home with some gyrations that he's now probably too old to get away with today. Watch him chug his way back to his feet toward the end. Like body art.

Fear is the new currency in the age of Obama, whose opponents are ahistoric and more than a little uneducated, celebrating ignorami at Fox News and faux political leaders like Sarah Palin. The Republican opposition has no ideas and specializes in slopping around the crap like a jailhouse cook who has to step away from the grill to serve the ungrateful inmates.

Every new terror attempt only brings out the forces of ignorance who claim that Obama is making this country less safe. This argument presumes that Obama is taking in a different direction than his predecessor. If only were that true. It is not. Jane Meyer, a New Yorker staff writer, places in context the Obama administration's recent decision to try the 9/11 terrorists in federal court in New York. The Republican line is that we cannot try these people in federal court and that military tribunals are the only option, and that American law enforcement should not be allowed to question accused terrorists.

This excerpt from her recent article tells me that the fear-mongering that passes for political debate is as nourishing as the prison slop. Note: "Holder" is Attorney General Eric Holder. Here we go:

Holder, despite the controversy he has inspired, has not actually pushed for radical change. Indeed, critics in left-leaning legal circles have complained that he has kept too many of George W. Bush’s counterterrorism policies in place. For example, Holder’s Justice Department has continued blocking lawsuits by people who were subjected to extraordinary rendition—the practice of sending suspected terrorists captured abroad to countries known for administering torture—on the ground that such litigation would expose state secrets. Even some former members of the Bush Administration see more continuity than change. Bradford Berenson, who served as a White House lawyer when the Bush Administration was forging its controversial legal approach to terrorism, told me that “from the perspective of a hawkish Bush national-security person the glass is eighty-five per cent full in terms of continuity.”

Holder told me that he was frustrated by much of the criticism over the handling of Abdulmutallab. “What we did is totally consistent with what has happened in every similar case” since 9/11, he said. “There’s a desire to ignore the facts to try to score political points. It’s a little shocking.” Without exception, he noted, every previous terrorist suspect apprehended inside the country had been handled as a civilian criminal. Even so, critics such as Krauthammer were denouncing Holder for failing to send Abdulmutallab directly to Guantánamo. As a senior national-security official in the White House put it, “It’s a fantasy! Under what alternative legal system can Special Operations Forces fly into Detroit, and take someone away without court oversight?”

According to Kate Martin, the director of the Center for National Security Studies, in Washington, the military can’t simply grab suspects inside the U.S. and hold them without charge or a hearing. “It violates the Constitution, which extends to everyone inside the U.S.,” she said. “You can’t be seized without probable cause. You have the right to due process, and to a trial by a jury of your peers—which a military commission is not.” Confusion on this point may derive from the Bush Administration’s controversial handling of two suspected terrorists, José Padilla and Ali Saleh Kahlah al-Marri. Both men were arrested in the U.S. by law-enforcement officials, and indicted on criminal charges. But Bush declared Padilla and Marri to be “enemy combatants,” which, he argued, meant that they could be transferred to military custody, for interrogation and detention without trial. (Neither suspect provided useful intelligence.) The cases provoked legal challenges, and in both instances appeals courts ruled that Bush had overstepped his power. The Administration, not willing to risk a Supreme Court defeat, returned the suspects to the civilian system.

For all the tough rhetoric of the Bush Administration, it prosecuted many more terror suspects as criminals than as enemy combatants. According to statistics compiled by New York University’s Center on Law and Security, since 2001 the criminal courts have convicted some hundred and fifty suspects on terrorism charges. Only three detainees—all of whom were apprehended abroad—were convicted in military commissions at Guantánamo. The makeshift military-commission system set up by Bush to handle terrorism cases has never tried a murder case, let alone one as complex, or notorious, as that of Khalid Sheikh Mohammed, who will face the death penalty for the murder of nearly three thousand people.

The Bush Administration obtained life sentences in the criminal courts for two terror suspects arrested inside the U.S.: Richard Reid, the so-called shoe bomber, and Zacarias Moussaoui, who was planning a second wave of plane attacks. (Reid was read his Miranda rights four times.) When the Bush Justice Department obtained these convictions, the process was celebrated by some of the same people now criticizing Holder. Giuliani, after the Moussaoui trial, said, “I was in awe of our system. It does demonstrate that we can give people a fair trial.”

Holder told me that he was “distressed” that people “who know better” were claiming that the courts were not up to the job of trying terrorists. He added that he found it “exceedingly strange” to hear this argument from Giuliani, who had been a zealous prosecutor. “If Giuliani was still the U.S. Attorney in New York, my guess is that, by now, I would already have gotten ten phone calls from him telling me why these cases needed to be tried not only in civilian court but at Foley Square,” Holder said.

There is no evidence suggesting that military commissions would be tougher on suspected terrorists than criminal courts would. Of the three cases adjudicated at Guantánamo, one defendant received a life sentence after boycotting his own trial; another served only six months, in addition to the time he had already served at the detention camp; the third struck a plea bargain and received just nine months. The latter two defendants—Salim Hamdan, a Yemeni who worked as Osama bin Laden’s driver, and David Hicks, an Australian who attended an Al Qaeda training camp—are now at liberty in their home countries, having been released while Bush was still in office. It’s impossible to know how these same cases would have fared in the civilian system. But the case of John Walker Lindh, the so-called American Taliban, offers a comparison between the two systems, as it closely parallels the case of Yaser Hamdi, a Saudi-American who was captured in the same place (Afghanistan) and at the same time (2001). Lindh, who pleaded guilty in a criminal court, is now serving twenty years in prison. Hamdi, who was declared an enemy combatant, was held in military detention, without charge; in 2004, after a court challenge, he was freed, and is now in Saudi Arabia.

Michael Mukasey, who was Holder’s predecessor as Attorney General, has suggested that the military system is better at making terrorists talk. Last month, in the Wall Street Journal, he argued, “Had Abdulmutallab been turned over immediately to interrogators intent on gathering intelligence, valuable facts could have been gathered and perhaps acted upon.” But the conventional court system has proved surprisingly effective at extracting intelligence. Dozens of suspected terrorists in the criminal system have coöperated with the government, usually in exchange for leniency in sentencing. The government is currently receiving valuable information from David C. Headley, who was indicted last December, in Chicago, for his involvement in terrorism conspiracies in India and Denmark. And, last week, the Justice Department confirmed that Abdulmutallab was now coöperating with the F.B.I. A department official noted, “He has an incentive to talk in the criminal-justice system, which the other system doesn’t offer.” The key to gaining Abdulmutallab’s coöperation was the F.B.I.’s ability to enlist his family in getting him to talk. Holder asked me, “Would that father have gone to American authorities if he knew his son might be whisked away to a black site”—a secret prison set up in a foreign country—“and subjected to enhanced interrogation techniques? You are much more likely to get people coöperating with us if their belief is that we are acting in a way that is consistent with American values.”

The news of the week is the Supreme Court's January 21 ruling in Citizens United v. Fedaral Election Commission. The Court said the First Amendment allows corporations to spend unlimited amounts of money on political campaigns. The decision overturns two Supreme Court precedents, one from 1990 and the other from 2003, and gives corporations more rights to influence campaigns than any ruling in history.

This opinion has come under fire as commentators suggest that corporations will drown out political opponents, and that our debased political culture will sink further into the sewer. The concern is also that the Supreme Court continues to believe that corporations are entitled to constitutional rights just as people are. There is enough commentary on these issues to go around for everyone, including an intellectually honest defense of the opinion from a constitutional lawyer.
Here is my take:

1. The conservative majority on the Supreme Court is taking an absolutist view on the First Amendment. The free speech clause of the Constitution is written in absolute terms ("Congress shall make no law ..."). But most constitutional provisions contain similar language, and those provisions are guided by balancing tests devised by the Court in order to ensure that the public's interest in civil liberties is balanced by the government's need to maintain order. The irony is that the Court takes an absolute view on the First Amendment when it comes to protecting corporate interests. This is not a coincidence, at least four Justices on the Court are hard-core conservatives, the product of the activist wing of the Republican Party. While the Supreme Court finds ways to limit the free speech rights of students, publicized trials and the rights of government whistleblowers, corporations have unlimited spending authority under the First Amendment despite Congressional findings that this kind of spending can interfere with the democratic process. Students can be suspended for speaking out of line in school or engaging in parody, and government workers can be fired for whistleblowing in certain instances, but if ExxonMobil wants to spend all its money on a political campaign to scuttle anti-global warming efforts, the government has no authority to reign it in.

2. In justifying its decision to overturn one of its prior rulings, Austin v. Michigan Chamber of Commerce, the current Supreme Court suggests Austin is outdated. Austin was decided by different Justices who have since been replaced by Republican appointees. The Court in Austin said that unlimited corporate spending on campaigns can have a distorting effect. The current Court says this about Austin:

Austin is undermined by experience since its an-nouncement. Political speech is so ingrained in our culture that speakers find ways to circumvent campaign finance laws. Our Nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights. Speakers have become adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the 24-hour news cycle. Corporations, like individuals, do not have monolithic views. On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials.

Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. Today, 30-second television ads may be the most effectiveway to convey a political message. Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds.

Can you believe this? Thirty minute television advertisements are enough to educate the public on political candidates? This is the kind of reasoning from a Supreme Court that is now allowing corporations to spend unlimited monies on campaigns. No one ever learned anything from a television commercial. Which brings me to number 3.

3. Putting aside legal issues for a moment, the reason why campaign finance laws are beside the point is that the only reason we have to curtail spending on campaigns is because campaigns are so expensive. And the reason they are so expensive is that, in addition to large-scale campaigns which require employees and printing presses and other expenses, a good deal of the campaign money is directed toward television advertisements which teach us nothing and distort the issues and push voters toward the candidate with the slickest campaign strategy or multi-media visuals. If much of the public is undecided on a presidential campaign only a few weeks before the election, it is no wonder the ads become more and more offensive and misleading in the days leading up to the big day.

4. Another lesson from this decision is that presidential elections are even more important than we are giving them credit for. I have written about this before. If you hate this Court decision and do not think corporations should have unlimited spending authority in political campaigns, then remember that in 2012, when the next campaign rolls around. The President appoints Supreme Court Justices. This issue is downplayed during the campaign. But once the Justices join the Court, they stay on for life, issuing rulings that could violate everything you stand for. This was a 5-4 decision; it easily could have gone the other way. It did not, because President Bush appointed two men to the Court, both of them staunch conservatives. One of those Justices replaced Sandra Day O'Connor, who probably would not have voted with the majority on this one.

5. This brings us to my fifth point. Justice John Paul Stevens wrote a 90 page dissent. He is almost 90 years old. I would like to see men half his age write 90 page dissents. Justice Stevens is probably going to retire soon. He is also one of the best guys on the Court. Here is part of his opinion:

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests ofeligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress hasplaced special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907. We have unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,” and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.” The Court today rejects a century of history when it treats the distinction between corporate and individual campaignspending as an invidious novelty born of Austin v. Michigan Chamber of Commerce. Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law[.]

Do you feel like everything is going to crap? It is. A permanent conservative majority on the Supreme Court is no picnic for those of us who value civil liberties and a workable Constitution. The only guarantee that Obama can give us is Supreme Court appointments that do not further distort constitutional doctrine. There is no guarantee that any President will make a Court appointment. Obama has already appointed one. With Stevens close to retirement, he will probably appoint another. Stevens' replacement will not change the liberal-conservative balance on the Court. One of these days a conservative will retire. They can't serve forever.

The same-sex marriage trial now underway in California is unique for many reasons. The plaintiffs' lawyers are superlawyers David Boies and Ted Olson, adversary lawyers in Bush v. Gore, the questionable 2000 Supreme Court ruling that gave the presidency to George W. Bush. The trial is also unique because they are trying to show that Proposition 8, which prohibits same-sex marriage in California, violates the Constitution. But it is also unique because the court decided that a few courtrooms around the country could broadcast the trial live on closed-circuit television.

That will not happen, however. The Proposition 8 supporters -- the ones who don't want same-sex marriage -- objected to the televised trial. The Supreme Court this week agreed with them and stayed the broadcast. In non-legal terms, the Justices overturned the court order allowing the broadcast. The revolution will not be televised.

There are two components to the Supreme Court's ruling. First, the Court said that the California federal court system did not follow the rules in allowing the broadcast because the proposal did not allow the public enough time to submit their comments for and against. The Court also said that Proposition 8 supporters (the anti gay rights people) will suffer "irreparable harm" if the trial is televised.

This was a 5-4 decision. The five conservatives stood firm on the procedural "violation" like the hall monitor grabs you before you slip into the bathroom without your hall pass. The four justices in dissent called out the majority on this technical objection in arguing that the public had more than enough time to be heard on the proposal. Let me focus on the alleged harm that would befall the marriage opponents had the trial been broadcast around the country.

Emergency court proceedings succeed when someone can show that he would suffer irreparable harm without a court order. Irreparable harm means harm that cannot be fixed or remedied at the end of the case. Financial losses are not irreparable because you can recover them when the case ends. The loss of the right to speak out on political matters represents classic irreparable harm. The alleged irreparable harm in this case was the argument that the anti-marriage witnesses (include paid expert witnesses) would testify different if their testimony is broadcast around the country in light of harassment and threats from their political opponents. The Supreme Court majority reasons, "It is difficult to demonstrate or analyze whether a witness would have testified differently if his or her testimony had not been broadcast. And witnesses subject to harassment as a result of broadcast of their testimony might be less likely to cooperate in any future proceedings."

This is quite lame. Witnesses take the oath to tell the truth, and I presume that witnesses testifying about why they support Proposition 8 are able to put their money where their mouth is. Are witnesses really going to testify differently out of fear that they will be harassed by people watching the trial in federal courtrooms around the country? I doubt it. The four justices in dissent have the better argument in favor of public broadcasts. On their behalf, Justice Breyer writes:

I can find no basis for the Court’s conclusion that, were the transmissions to other courtrooms to take place, the applicants would suffer irreparable harm. Certainly there is no evidence that such harm could arise in this nonjury civil case from thesimple fact of transmission itself. By my count, 42 Statesand two Federal District Courts currently give judges the discretion to broadcast civil nonjury trials. Neither the applicants nor anyone else "has been able to present empirical data sufficient toestablish that the mere presence of the broadcast media inherently has an adverse effect on [the judicial] process.” ...

The applicants also claim that the transmission willirreparably harm the witnesses themselves, presumably by increasing the public’s awareness of who those witnesses are. And they claim that some members of the public might harass those witnesses. But the witnesses, although capable of doing so, have not asked this Court to set aside the District Court’s order. And that is not surprising. All of the witnesses supporting the applicants are alreadypublicly identified with their cause. They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the State advocating a “yes” vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse.

The likelihood of any “irreparable” harm is further diminished by the fact that the court order before us would simply increase the trial’s viewing audience fromthe occupants of one courtroom in one courthouse to the occupants of five other courtrooms in five other court-houses (in all of which taking pictures or retransmissions have been forbidden). By way of comparison literally hundreds of national and international newspapers arealready covering this trial and reporting in detail the names and testimony of all of the witnesses. I see no reason whythe incremental increase in exposure caused by transmitting these proceedings to five additional courtrooms would create any further risk of harm, as the Court apparently believes.

Televising this trial would be the best way to educate the public about our court system, especially since this trial involves a constitutional issue on the legality of laws prohibiting same-sex marriage. Is this prohibition legal? In my opinion, it is not. But that is a topic for another day. The trend should not be to close off trial broadcasts, but to do it more often. What is the conservative Supreme Court majority thinking?

Here's the paradox: we love the U.S. Constitution, but we hate prisoners and inmates. We love the guarantees provided in the Constitution, but we hate people who break the law. These contrasting impulses bob to the surface in litigation by inmates and their advocates in claiming that the conditions of their confinement violate the Eighth Amendment to the Constitution.

The Eighth Amendment says that the government cannot inflict cruel and unusual punishment against inmates and prisoners. I don't have any data on this, but I would bet that, if that language was put up for a public referendum, the Eighth Amendment would either fail to garner a majority vote or it would be pretty close. Thankfully, that Amendment (like the others) does not rest in the hands of the public but with judges who are able to resist the urge to let inmates suffer for no good reason.

I thought about this when I read the obituary of a federal judge, Morris Lasker, who served for 42 years in both New York City and Boston. His obituary in the New York Times focused on his role in ending the draconian jail conditions in New York City at a time when a new consciousness in the 1960s and 1970s raised questions about the treatment of society's most despised people. Here is an excerpt from the obituary:

Judge Lasker, a soft-spoken jurist who often found himself at the center of controversies, was best known for rulings in the 1970s and ’80s in the Southern District of New York that forced the city come to grips with horrendous conditions in its jails and violations of the constitutional rights of prisoners that, as he once put it, “would shock the conscience of any citizen who knew of them.”

The judge knew the conditions in jails not only from evidence in lawsuits, but also from his own visits to the Tombs, the notorious Manhattan House of Detention for Men, where he found overcrowding, noise, vermin and stench, and to Rikers Island, the city’s prison complex in the East River, which housed thousands of detainees awaiting trials or serving sentences of less than a year.

In 1970, when the Legal Aid Society filed the first of many class-action lawsuits on behalf of inmates, a prisoner entering the main detention center for men on Rikers Island faced a nightmare: locked in a filthy eight-foot cell with other inmates for 16 hours a day, with no easy access to telephones or medical care. Beatings by guards were common. Mental illness afflicted 25 percent of the inmates, and 75 percent were drug users. Cockroaches abounded. Toilets were foul. Meals were slop.

In the Tombs, a fortress in Lower Manhattan where suspects often waited up to a week to see a judge, the conditions were even worse. Cells and pens designed for 925 inmates were occupied by 2,000. Prisoners slept on concrete floors without blankets and contended with roaches, body lice and mice. Guards were frequently accused of brutality. A suicide was attempted every week.

Judge Lasker ordered the city to improve conditions. But after repeated warnings and hearings, in which the city pleaded for time and told of soaring prison populations and limited budgets, he ordered the Tombs closed in 1974. Over nine years, the Tombs was gutted and rebuilt at a cost of $42 million. When reopened in 1983, it resembled a school dormitory, with windowed, air-conditioned cells, a library, a commissary, a nurse’s station, a television area and other amenities.

The city spent $1 billion in the 1980s to expand and modernize jail facilities, but still had to house inmates on barges and in prefabricated structures. Judge Lasker ordered hundreds of inmates released or transferred to state prisons, and threatened officials with contempt when they resisted.

You may react to this with a shrug. Who cares about inmates? Here's my response. Some of these inmates are members of your family. They are our brothers and sisters. Some of them are losers, but they are family. Inmates look a lot different when you know them personally. Other inmates are allowed to go home years before their sentences run out because they are cleared by DNA evidence and the courts decide that they are innocent of rape or murder. Does that person deserve to live in roach-infested cells with disgusting toilets? Still other inmates are mentally-retarded and are not even fully responsible for their crimes. It's been said that we can judge society by how it treats its prisoners. Judge Lasker took that oft-quoted phrase seriously. God bless 'em.

It is the nature of capitalism that success breeds imitation. Imagine writing that one song that becomes a Christmas classic forever. The Christmas Song, by Mel Torme. Or Have Yourself A Merry Little Christmas, made popular by Judy Garland. Or Sleigh Ride by Johnny Mathis. We know these songs by heart. And the people who wrote them were set for life. This success breeds imitation. Every songwriter has his own Christmas song. And much of it is drivel. But the best of the best makes the season worthwhile, even if you might be trampled to death at Wal-Mart.

The world of rock and roll is no stranger to Christmas songs. But it's hard to capture the spirit of Christmas with electric guitars. Somehow, the people below were able to accomplish this. Most of these songs are rock and roll. Some are jazz. All are great.

The Ronettes - Frosty the Snowman. This is from the Phil Spector Christmas Album, released in 1963 and featuring Spector's famous Wall of Sound. He used the best musicians in music, including Hal Blaine on drums, who played on many of the hits from Los Angeles in the 1960's. Some of the best drumming of that decade is featured on this song.

The Ronettes - Sleigh Ride. Another song from the Phil Spector album. Phil married the lead singer, Ronnie Bennett. She became Ronnie Spector. Which only proves that Jews sometimes give us the best sounds of the season. Phil Spector is now in jail, convicted of murder. Which proves that sometimes murderers give us the best Christmas music.

Vince Gauraldi Trio - Skating. This is from the Charlie Brown Christmas Special. Kids watching to TV show don't know that this is some of the best jazz of the 1960's. This is just a beautiful piece of music. The video shows people ice skating in Pittsburgh, for some reason.

Bruce Springsteen - Santa Claus is Coming to Town. Bruce is rock and roll's greatest live performer. This song is one of the few radio-friendly classic rock Christmas songs I can listen to without changing the station.

The Waitresses - Christmas Wrapping. This is a bona-fide original, not an interpretation of the same old Christmas classics. The lyrics tell a nice story.

John Lennon - Merry Christmas/The War is Over. As wonderful as the Beatles were, they did not produce any great Christmas songs. The solo Beatles tried to write good Christmas songs, but they couldn't cut it. Except for John Lennon. Most Christmas songs are not political. This one was. It is hard for us to imagine what it was like to live through the late 1960s and early 1970s. At least those of us who did not live through that period cannot imagine what it was like. Imagine being drafted to fight a war that you do not believe in. And being asked to kill and maim and possibly suffer the lost of a limb or post traumatic stress disorder. A very good argument can be made that for draft-age Americans during the Vietnam War, this country was a military dictatorship. Resist the draft, go to jail. Lennon was a little crazy, in my view. And he did contradict his humanitarian impulses on a regular basis. But this song truly captures his spirit. He may have been full of shit from time time, but he meant it on this song. Here is the long version of the song, with commentary from Lennon about why he wrote the song. Here is the short version:

Barbra Streisand- Jingle Bells. Remember what I said about the Jews giving us the best Christmas songs? This is from her 1967 Christmas album. We blast this each and every year. Christmas on steroids, from Brooklyn, New York.

Beach Boys - Little Saint Nick. If you want to know what family dysfunction is like, read a book about the Beach Boys. The father was crazy, the drummer was crazy, Brian Wilson was crazy. They were all crazy, in a bad way. Not in a "cool" way. But this song is very pleasant, even if it was recorded in Southern California, where it is always warm and there is no snow at all.

Band Aid - Do They Know It's Christmas. In the 1980's rock stars decided to devote their talents for charity. In the U.S., the big hit was We Are The World by USA for Africa. We Are The World is one of the 10 worst songs in the history of rock music. Over in England, the charitable contribution for Africa was Do They Know It's Christmas. That's Bono on vocals, and Phil Collins on drums. The guy who looks like a woman (Boy George) is really a guy. I have no idea if any of the money went to Africa. The haircuts in the video are outrageous. Everyone looks super-serious, as if they knew they were being filmed. But I always liked this song, especially the fade-out. Some of you may say, "but Steve, you are better than this. This song is sappy, a true band-aid in every sense of the word, which does nothing to stop the stranglehold that international lending institutions like the IMF and World Bank have on the Third-World." You are right. But I will say this, and I will say this in the true spirit of Christmas: go screw yourself. I love this song.

A guy in Fairfax County, Virginia was arrested for indecent exposure when neighbors saw him walking around the house without any clothes on. Story here. The Washington Post reports it this way:

The way Eric Williamson tells it, he might have been making coffee or flipping eggs or taking a picture down from the wall when a woman and her 7-year-old son walked by his Springfield house and saw him, through the window, naked.

He says he never saw them and never knew they'd seen him -- until the police showed up.

There are conflicting accounts of what happened Monday morning, but everyone agrees on this: The 29-year-old was naked and home alone, and he could face up to a year in jail.

"I looked straight at the cops and said, 'You're telling me that none of you guys have ever walked across your kitchen or run to the laundry room to get some pants?' " said Williamson, who was handcuffed and taken before a magistrate. "I was treated like an animal. If there was something offensive, would not a knock on the door and heads-up suffice?"

If you read the Onion (and if you don't, you should), this is old news. The satirical newspaper ran an article a few years ago about a guy who lounged around the house naked. Eventually, everything that you see in the Onion comes true, which is why the Onion is the best newspaper in America.

Assuming that this guy was just walking around the house naked and someone saw him through the window, is it legal to arrest him? In my opinion, no. American law is rife with protections arising from the home. The Fourth Amendment to the Constitution protects against unreasonable searches and seizures and makes specific reference to home searches without proper warrants. In 1994, the Supreme Court held in City of Ladue v. Gilleo, that the government cannot prohibit homeowners from posting political signs on their property. A man's home may not be his castle, but it's pretty damned close.

The one Supreme Court case that comes to mind, though, is Stanley v. Georgia, decided in 1969. This was a strange case. The Supreme Court has held the First Amendment does not protect obscene materials, defined as prurient works that lack any political, social or any other redeeming value. But ... under Stanley v. Georgia, you can have obscene materials in your house. What happened in this case was as strange as the Fairfax County case from a few weeks ago. The police came to Stanley's house because they were investigating his bookkeeping activities. They found some eight-millimeter film in his desk. So they watched the film in Stanley's house, using his projector and movie screen in an upstairs living room. Stanley was arrested because the films were pornographic.

Justice Thurgood Marshall, two years into his Supreme Court tenure after risking his life as a civil rights lawyer challenging government-sanctioned racial discrimination, wrote that "Th[e] right to receive information and ideas, regardless of their social worth ... is fundamental to our free society. Moreover, in the context of this case -- a prosecution for mere possession of printed or filmed matter in the privacy of a person's own home -- that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy." The Court added:

These are the rights that [Stanley] is asserting in the case before us. He is asserting the right to read or observe what he pleases -- the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as "obscene" is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.

This is nice language. You don't see court opinions like this these days. Mostly because the police don't raid your house and rummage through your things and watch movies in projectors in your living room. The Stanley case arose in the 1960's, before society became more enlightened about governmental misconduct. What makes the police think they can arrest a guy for standing around his house naked is beyond me. If you don't want to see a naked man, then look the other way.

I stopped eating processed ground beef after I finished reading Fast Food Nation by Eric Schlosser, who talked about how hamburger meat is made for your consumption. There is literally shit in the meat, the author wrote, and the industry is not regulated by the government enough to ensure that we are eating safe food. If you don't time to read the book, then at least read the reviews on Amazon.com. And then politely tell loved ones and backyard burger-flippers, "thanks, but no thanks, for that hamburger."

Fast Food Nation was written a few years ago, and although the book was a call to arms (and changed the way I looked at food altogether), very little, if anything, has been done to protect us from food-borne diseases like E-Coli. Part of this is because the food industry has so much pull with the government, and part of it was the anti-regulatory approach of the Republican administration that ran Washington for eight years. But the Democrats are not much better. Profit over people is the national religion.

This issue surfaced again a few weeks ago when the New York Times ran a lengthy article about a woman who is paralyzed from eating bad meat. True, her paralysis was a freak event, but it highlights the risks associated with eating commercial ground beef. The article was enough to make you swear off food altogether. Next time someone tells you that government regulation is bad for the economy and impinges on economic freedom, show them the Times article.

Some highlights from the article:

Meat companies and grocers have been barred from selling ground beef tainted by the virulent strain of E. coli known as O157:H7 since 1994, after an outbreak at Jack in the Box restaurants left four children dead. Yet tens of thousands of people are still sickened annually by this pathogen, federal health officials estimate, with hamburger being the biggest culprit. Ground beef has been blamed for 16 outbreaks in the last three years alone, including the one that left Ms. Smith paralyzed from the waist down. This summer, contamination led to the recall of beef from nearly 3,000 grocers in 41 states.

...

Ground beef is usually not simply a chunk of meat run through a grinder. Instead, records and interviews show, a single portion of hamburger meat is often an amalgam of various grades of meat from different parts of cows and even from different slaughterhouses. These cuts of meat are particularly vulnerable to E. coli contamination, food experts and officials say. Despite this, there is no federal requirement for grinders to test their ingredients for the pathogen.

...

Using a combination of sources — a practice followed by most large producers of fresh and packaged hamburger — allowed Cargill to spend about 25 percent less than it would have for cuts of whole meat.

Those low-grade ingredients are cut from areas of the cow that are more likely to have had contact with feces, which carries E. coli, industry research shows. Yet Cargill, like most meat companies, relies on its suppliers to check for the bacteria and does its own testing only after the ingredients are ground together. The United States Department of Agriculture, which allows grinders to devise their own safety plans, has encouraged them to test ingredients first as a way of increasing the chance of finding contamination.

Unwritten agreements between some companies appear to stand in the way of ingredient testing. Many big slaughterhouses will sell only to grinders who agree not to test their shipments for E. coli, according to officials at two large grinding companies. Slaughterhouses fear that one grinder’s discovery of E. coli will set off a recall of ingredients they sold to others.

...

In the weeks before Ms. Smith’s patty was made, federal inspectors had repeatedly found that Cargill was violating its own safety procedures in handling ground beef, but they imposed no fines or sanctions, records show. After the outbreak, the department threatened to withhold the seal of approval that declares “U.S. Inspected and Passed by the Department of Agriculture.”

The article talks about lax enforcement of food safety rules and how companies don't want to go the extra mile to ensure that the food is safe. One of the reasons we even have a government is to have a neutral regulator look out for public safety. This is the job of the Executive Branch, what is commonly known as the Presidency, where all the federal agencies are situated. The New York Times did speak to a government offical about this issue. This is what he said, and this comment entitles the Times reporter to a Pulitzer Prize. Never before and never again will we see such brazen honesty and pathological disregard for public health:

Dr. Kenneth Petersen, an assistant administrator with the department’s Food Safety and Inspection Service, said that the department could mandate testing, but that it needed to consider the impact on companies as well as consumers. “I have to look at the entire industry, not just what is best for public health,” Dr. Petersen said.

Are you allowed to give the police the middle finger? The answer is yes. Giving someone the finger is protected under the First Amendment. This issue surfaces from time to time, and it was confimed again by a federal court in Pennsylvania in March 2009.

Here is what happened in Hackbart v. City of Pittsburgh. Hackbart was trying to park his car in Pittsburgh when someone blocked his entry into the parking space and would not back up. As the court put it, "frustrated, Hackbart extended his left arm out the window of his vehicle and extended his middle finger to the driver." An officer, Elledge, saw this gesture and told Hackbart to watch it. The court says, "Hackbart responded by directing the same gesture toward Elledge." That did it. Elledge pulled him over and charged him with disorderly conduct. The district attorney's office dropped the charge, and Hackbart sued the police officer.

Most people will not give the police the finger. But you have to admit that you've always wondered what would happen if you did. Hackbart did. The federal court says he has a case. In fact, he wins the case without a trial. Here's why.

The Supreme Court has said that even non-verbal gestures and symbols may constitute speech. The Pennsylvania federal court adds, "several courts ... have found that the expressive use of the middle finger is protected speech under the First Amendment." For example, the federal appeals court in Cincinnatti ruled that the First Amendment allowed a driver to give the finger and tell protesters "fuck you." An appeals court in California said that directing a series of expletives and an obscene gesture at a police officer represented an expression of approval toward the officer and was therefore protected under the First Amendment.

Under these precedents, the court finds that "Hackbart ... was expressing his frustration and anger when he gestured with his middle finger to both the driver behind him and to Elledge." The officer made no secret of the reason why he arrested Hackbart for disorderly conduct. He wrote on the police report: "Driver made an obscene gesture towards me. Flipped me off while driving by. Also flipped off another driver." In writing this, the officer gave Hackbart a lawsuit. The officer admits that he arrested Hackbart in violation of the First Amendment.

This case reminds us that the First Amendment protects even obnoxious conduct. One of the cases cited in the Hackbart decision is Texas v. Johnson, the 1989 Supreme Court ruling that said flag burning is protected activity under the First Amendment. Flag burning and middle fingers push the boundaries of First Amendment activity, for sure. But this case is not that unusual. In 1971, the Supreme Court ruled in favor of a Vietnam War protester who walked through a courthouse wearing a jacket that said "Fuck the Draft." That case, Cohen v. California, is among the favorite cases of First Amendment mavens for any number of reasons. My reason is Justice Harlan's observation that "One man's vulgarity is another man's lyric."

One of the reasons I stopped being a Democrat 20 years is that the Democrats were soft on Reagan, refusing to take seriously his high crimes and misdemeanors in the Iran-contra scandal in which the President sent arms to the terrorist government of Iran and diverted the profits to pay for a terrorist army trying to overthrow the democratically-elected government of Nicaragua, all in violation of American law. If the Democrats were not going to stand up for American ideals, then screw them.

They are doing it again. The health care debate in this country has devolved into a shouting match organized by six year olds fighting in the schoolyard over who father can kick your ass. No one seems to care that millions of Americans have no health care at all and the "public option" would have the government extend public health insurance to them the way it does under Medicare for older people. The papers this morning suggest the Democrats are willing to let this issue go to waste. The column below by New York Times opinion writer Nicholas Kristoff summarizes the issue for me, and I have nothing to add:

The Body Count at Home

Nikki White died at the age of 32. She had lupus, a chronic inflammatory disease that was untreated because she could not afford health insurance.

Nikki was a slim and athletic college graduate who had health insurance, had worked in health care and knew the system. But she had systemic lupus erythematosus, a chronic inflammatory disease that was diagnosed when she was 21 and gradually left her too sick to work. And once she lost her job, she lost her health insurance.

In any other rich country, Nikki probably would have been fine, notes T. R. Reid in his important and powerful new book, “The Healing of America.” Some 80 percent of lupus patients in the United States live a normal life span. Under a doctor’s care, lupus should be manageable. Indeed, if Nikki had been a felon, the problem could have been averted, because courts have ruled that prisoners are entitled to medical care.

As Mr. Reid recounts, Nikki tried everything to get medical care, but no insurance company would accept someone with her pre-existing condition. She spent months painfully writing letters to anyone she thought might be able to help. She fought tenaciously for her life.

Finally, Nikki collapsed at her home in Tennessee and was rushed to a hospital emergency room, which was then required to treat her without payment until her condition stabilized. Since money was no longer an issue, the hospital performed 25 emergency surgeries on Nikki, and she spent six months in critical care.

“When Nikki showed up at the emergency room, she received the best of care, and the hospital spent hundreds of thousands of dollars on her,” her step-father, Tony Deal, told me. “But that’s not when she needed the care.”

By then it was too late. In 2006, Nikki White died at age 32. “Nikki didn’t die from lupus,” her doctor, Amylyn Crawford, told Mr. Reid. “Nikki died from complications of the failing American health care system.”

“She fell through the cracks,” Nikki’s mother, Gail Deal, told me grimly. “When you bury a child, it’s the worst thing in the world. You never recover.”

We now have a chance to reform this cruel and capricious system. If we let that chance slip away, there will be another Nikki dying every half-hour.

That’s how often someone dies in America because of a lack of insurance, according to a study by a branch of the National Academy of Sciences. Over a year, that amounts to 18,000 American deaths.

After Al Qaeda killed nearly 3,000 Americans, eight years ago on Friday, we went to war and spent hundreds of billions of dollars ensuring that this would not happen again. Yet every two months, that many people die because of our failure to provide universal insurance — and yet many members of Congress want us to do nothing?

Mr. Reid’s book is a rich tour of health care around the world. Because he has a bum shoulder, he asked doctors in many countries to examine it and make recommendations. His American orthopedist recommended a titanium shoulder replacement that would cost tens of thousands of dollars and might or might not help. Specialists in other countries warned that a sore shoulder didn’t justify the risks of such major surgery, although some said it would be available free if Mr. Reid insisted. Instead, they offered physical therapy, acupuncture and other cheap and noninvasive alternatives, some of which worked pretty well.

That’s a window into the flaws in our health care system: we offer titanium shoulder replacements for those who don’t really need them, but we let 32-year-old women die if they lose their health insurance. No wonder we spend so much on medical care, and yet have some health care statistics that are worse than Slovenia’s.

My suggestion for anyone in Nikki’s situation: commit a crime and get locked up. In Washington State, a 20-year-old inmate named Melissa Matthews chose to turn down parole and stay in prison because that was the only way she could get treatment for her cervical cancer. “If I’m out, I’m going to die from this cancer,” she told a television station.

Mr. and Mrs. Deal say they are speaking out because Nikki wouldn’t want anyone to endure what she did. “Nikki was a college-educated, middle-class woman, and if it could happen to her, it can happen to anyone,” Mr. Deal said. “This should not be happening in our country.”

Struggling to get out the words, Mrs. Deal added: “The loss of a child is the greatest hurt anyone will ever suffer. Because of the circumstances she endured with the health care system, I lost my daughter.”

Complex arguments are being batted around in this health care debate, but the central issue isn’t technical but moral. The first question is simply this: Do we wish to be the only rich nation in the world that lets a 32-year-old woman die because she can’t get health insurance? Is that really us?

We were driving to Cape Cod a few weeks ago when the toll booths arrived in Massachusetts. The lines into the tolls were long, but for one lane, the cars were zipping merrily through. I joked that that booth was for the Kennedy family.

This was a few weeks before Ted Kennedy died. Ted Kennedy was Massachusetts, New England accent and all. I always thought that when he died, all the attention would focus on Chappaquiddick, the small island off Martha's Vinyard where Teddy in 1969 drove his car off a bridge, leading to the drowning death of a young woman who worked for the 1968 campaign of Teddy's slain brother, Robert.

While Chappaquiddick was a focus in the obituaries, the media also talked about Kennedy's legislative achievements. Teddy entered the U.S. Senate in 1962, at 30 probably too young for the position. After his brothers were murdered, he got serious and played a role in enacting nearly every progressive piece of legislation over the last 40 years, including labor laws, workplace safety laws, employment discrimination laws and education laws. In terms of his achievements, he is probably the best U.S. Senator this country ever had.

But let's talk about Chappaquiddick for a moment. No one defends what happened that night. Known for his drinking and womanizing, the idea that Teddy drove a car off a bridge and swam to safety while a woman drowned in the car obviously brings to mind all the worst stereotypes of the drunken womanizer. Teddy did not call the police right away, and the case will go down as one of the great shams in American history. People argue to this day that Teddy got off easy. It cost him the presidency, for sure. My guess is he would have won in 1976.

Kennedy's recent death brings to mind one of the great debates of our time. Can you redeem yourself after doing something horrible? Most people say the answer is yes. Teddy worked harder after Chappaquiddick to establish himself as a serious Senator. But if you scratch beneath the surface, something else hits you: that old adage really is true. Killing one person is murder. Killing 10,000 is foreign policy.

Teddy's memoirs are being released ahead of time. In his autobiography, he writes convincingly that the death of Mary Jo Kopechne has haunted him every day for 40 years. I believe it. I have read books about Teddy and it seems his compassion was not an act. He personally called family members of the 9/11 terror attacks, and the victims were surprised and comforted to know that a U.S. Senator actually called them to offer his condolences. Conservative Senators loved the guy like a brother. Biographies of Teddy include these and other examples of his compassion. Makes sense in light of the progressive legislation that he promoted over the course of his career. This does not change what happened at Chappaquiddick, and it does not bring Mary Jo Kopechne back to life. Teddy was 36 years old when that incident happened; he was no kid.

Remember what I said about murder and foreign policy? Another man who inflicted great damage over the course of his life and began to second-guess his decisions was Robert McNamara, Secretary of Defense during the Vietnam War, which raged through the 1960's through the early 1970's. I don't forgive McNamara for fighting the war long after he thought the war was lost; the war never should have been started. But at least he made some attempt to reconsider his decisions. If George W. Bush was paying attention in the mid-1990's when McNamara went public with his mea culpa, the war in Iraq may not have happened.

Now take a look at a man who is totally beyond contempt, a killer who has no remorse at all. Henry Kissinger, statesman, Nobel Peace Prize winner. Kissinger was Secretary of State during the Nixon administration in the early 1970's, when the Vietnam War was raging and over one million people died at the other end of the war (in addition to nearly 60,000 American soldiers). If you think the Iraq war was bogus, take a look at Vietnam. In the Nation magazine a few weeks ago, a letter was published which blew my brains:

I am of a '60s antiwar movement that can never forgive Robert McNamara for his central role in the Vietnam War, though of course he had the decency to acknwledge many years later that the war was wrong. No so Henry Kissinger, who took up where McNamara left off.

I interviewed both men in 2001 for a PBS documentary, The Sixties: The Years That Shaped a Generation. McNamara told me that he'd come to realize the war was a tragedy that could have been avoided. He said his "greatest regret" was urging President Johnson in 1965 to commit American troops to a land war in Asia.

But Kissinger was unreconstructed, unapologetic. "If you are going to ask I feel guilty about Vietnam, the interview is over," Kissinger said before I asked my first question. "I'll walk out."

I told him that I had just interviewed McNamara. That got his attention. And then he did something I'll never forget: he began to cry. Actually, he pretended to cry.

"Boohoo, boohoo," Kissinger blubbered, rubbing his eyes. "He's still beating his breast, right? Still feeling guilty." He spoke in a mocking, singsong voice and patted his heart for emphasis.

It was one of those private moment, before the camera rolls, when you get a rare glimpse into someone's character and it's even darker than you ever dreamed.

Redemption for Teddy. None for Henry.

We love violence. Guns are everywhere, we cheer on the soldiers no matter how unjust the war may be, and ... our love of violence manifests itself in other ways. When the government breaks the rules and violates the law, are we really off the hook? Doesn't our love of violence implicitly encourage this kind of lawlessness?

Locally, in New York, the newspaper reports that youth facilities stand accused of beating the hell out of teenagers:

Excessive physical force was routinely used to discipline children at several juvenile prisons in New York, resulting in broken bones, shattered teeth, concussions and dozens of other serious injuries over a period of less than two years, a federal investigation has found.

A report by the United States Department of Justice highlighted abuses at four juvenile residential centers and raised the possibility of a federal takeover of the state’s entire youth prison system if the problems were not quickly addressed.

...

Investigators found that physical force was often the first response to any act of insubordination by residents, who are all under 16, despite rules allowing force only as a last resort.

These are kids few people really give a shit about. The facilities are located in rural areas, outside public oversight. Many of us are not even aware that these facilities exist, and if we do know they exist, we are glad they are there to house the kids that no one can control. Humanity's inherent love and capacity for violence breeds this kind of abuse when no one looking, and when no one cares.

Violence is the answer at home, and violence is the answer abroad. No one sympathizes with terrorists, which is why a steady stream of headlines over the last few years has revealed the use of torture against foreigners in U.S. custody.

As the newpaper reports also today:

Attorney General Eric H. Holder Jr. named a veteran federal prosecutor on Monday to examine abuse of prisoners held by the Central Intelligence Agency, after the Justice Department released a long-secret report showing interrogators choked a prisoner repeatedly and threatened to kill another detainee’s children.

...

Although large portions of the 109-page report are blacked out, it gives new details about a variety of abuses inside the C.I.A.’s overseas prisons, including suggestions about sexually assaulting members of a detainee’s family, staging mock executions, intimidation with a handgun and power drill, and blowing cigar and cigarette smoke into prisoners’ faces to make them vomit.

You may not care about any of this. But you should. As far as I'm concerned one of the best commentators on these issues is Glenn Greenwald, a lawyer in New York City who does not pull punches. Here's the link to his commentary on the torture. Here's Glenn:

GOP Congressman Peter King -- the ranking member of the House Homeland Security Committee -- had this rancid outburst today in Politico regarding Eric Holder's decision to investigate whether laws were broken by the Bush administration's torture:

"It’s bullshit. It’s disgraceful. You wonder which side they’re on. [It's' a] declaration of war against the CIA, and against common sense. . . . When Holder was talking about being 'shocked' [before the report's release], I thought they were going to have cutting guys' fingers off or something -- or that they actually used the power drill. . . "

Pressed on whether interrogators had actually broken the law, King said he didn't think the Geneva Convention "applies to terrorists."

Never mind that the Supreme Court in Hamdan ruled exactly the opposite: that Common Article 3 of the Geneva Conventions applies to all detainees, including accused Terrorists. Never mind that the War Crimes Act makes it a felony to inflict "prolonged mental harm caused by or resulting from . . . the threat of imminent death; or the threat that another person will imminently be subjected to death, severe physical pain or suffering. . . ." and that these acts are therefore criminal whether or not King likes them.

Never mind that scores of people have died -- not merely been threatened with death -- in American custody as a result of "interrogation tactics." Never mind that Ronald Reagan signed the Convention Against Torture which compels the U.S. to prosecute anyone authorizing torture; that the Treaty proclaims that "no exceptional circumstances whatsoever . . . may be invoked as a justification of torture"; and that Reagan himself said the Treaty "will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today." And most of all, never mind that King has no idea whether these people are actually "terrorists" because the people we tortured were never given trials, never proven to have done anything wrong, and in many cases were -- as federal courts have repeatedly found and as the CIA IG Report itself recognized -- completely innocent.

This may shock you, but the Supreme Court has never held outright that the Constitution makes it illegal to impose the death penalty where the prisoner claims that he is actually innocent of the crime. In 1993, the Court ruled that, where an inmate brings a Habeas Corpus petition (which challenges the constitutionality of the criminal conviction), the Eighth Amendment's prohibition against cruel and unusual punishment does not require that the inmate/defendant be given a second bite at the apple. In particular, the Court "held that a claim of actual innocence based on newly discovered evidence did not state a ground for federal habeas relief."

This ruling came into play a few weeks ago when the Supreme Court issued a little-noticed ruling on an inmate's Habeas petition. The Court normally does not sit over the summer, but the Justices dealt with this case because, well, death penalty cases do have a way of waking up vacationing judges and otherwise revving up the judicial machinery in ways unknown to other defendants. This case, involving an inmate named Troy Davis, was a Habeas Corpus petition filed directly with the Supreme Court. The Justices ruled, in a 7-2 vote, that the federal court in Davis's jurisdiction should take a look at new evidence that Davis did not kill the victim. This evidence takes the form of affidavits from witnesses who testified against Davis at trial. As Justice Stevens notes in ruling in Davis's favor, "seven of the State's key witnesses have recanted their trial testimony; several witnesses have implicated the State's principal witness as the shooter."

Davis gets a second chance. From time to time, we read in the newspaper that a convicted murderer is found innocent because of DNA evidence which confirms that someone else killed or raped the victim. Or that a confession was coerced and detectives or other law enforcement officers overcame the will of the defendant in getting him to admit that he killed the victim. I remember the national outrage in 1989 when the Central Park Jogger was raped and left for dead and five youths admitted their guilt. If the death penalty could be imposed for rape, these defendants would have been put to death. But a few years ago, they were found innocent based on DNA and other evidence which cleared them. The Manhattan District Attorney actually recommended that the convictions be set aside. This development was almost as shocking as the original crime. So many defendants have walked out of prison after proving their innocence after-the-fact that, in my view, only a sociopath would stand in the way of giving some of them another hearing, even if their trials seemed fair and square at the time.

The Constitution prohibits the deprivation of life, liberty and property without due process of law. But, in dissenting from the order which gave Anthony Davis a second chance, conservative Supreme Court Justice Antonin Scalia wrote that "[t]his Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged 'actual innocence' is constitutionally cognizable." Clarence Thomas joined in Justice Scalia's dissent.

In response to Justice Scalia's argument, Justice Stevens notes that Scalia is treating a claim of actual innocence with a claim that derives from a procedural error (such as some screw-up at trial that amounts to a technicality). Death is different. Stevens writes, "imagine a petitioner in Davis's situation who possesses new evidence conclusively and definitively proving beyond any scintilla of doubt that he is an innocent man. The dissent's reasoning would allow such a petitioner to be put to death nonetheless. The Court correctly refuses to endorse such reasoning."

So at this point, it is not clear whether the Supreme Court still believes that the Constitution does not prohibit the execution of an inmate who is actually innocent of murder. This ruling may change the equation that the Supreme Court outlined in 1993. That's a good thing. That at least two Supreme Court justices would stand on ceremony and allow someone to be put to death because he exhausted his rights to challenge his conviction before finding a way to conclusively prove his innocence is appalling.

There are two kinds of people in this world: hall monitors and ... everyone else. The hall monitors had a copy of the school's rules and regulations and nailed you when you tried to go to the bathroom. Sure, you had to use the can and did not have time to get a hall pass, but the hall monitor does not care. You are dragged to the principal's office. The rules reign supreme for the hall monitors. The hall monitors on the Supreme Court are Antonin Scalia and Clarence Thomas. Justice Stevens, who is 89 years old by the way, represents the rest of us. We need more Justices like Stevens on the Court, and fewer Justices like Scalia and Thomas, who apparently believe that, so long as the inmate had a full trial and exhausted all avenues for appeal, the Constitution does not make it illegal to put the inmate to death even if, when the dust settles, it turns out that he is completely innocent.

I like gossip as much as the next guy, but truth is better than fiction, and the state of the world is more interesting than Michael Jackson's funeral. A few recent news stories highlights for me that we are still crawling from the hell-hole that the Bush administration (and its rancid ideology) left us.

In 2005, the New York Times revealed that the Bush administration was wiretapping phone calls without a warrant. These include phone calls from within this country. Government agents and bureaucrats were listening in on phone calls by U.S. citizens despite a law that required a special court to review these privacy intrusions. People were outraged over this, but Bush walked out of this burning bush without a scratch.

Government investigators recently reviewed the wiretapping program. Here is what they found:

While the Bush administration had defended its program of wiretapping without warrants as a vital tool that saved lives, a new government review released Friday said the program’s effectiveness in fighting terrorism was unclear. The report, mandated by Congress last year and produced by the inspectors general of five federal agencies, found that other intelligence tools used in assessing security threats posed by terrorists provided more timely and detailed information. Most intelligence officials interviewed “had difficulty citing specific instances” when the National Security Agency’s wiretapping program contributed to successes against terrorists, the report said.

The report also hinted at political pressure in preparing the so-called threat assessments that helped form the legal basis for continuing the classified program, whose disclosure in 2005 provoked fierce debate about its legality. The initial authorization of the wiretapping program came after a senior C.I.A. official took a threat evaluation, prepared by analysts who knew nothing of the program, and inserted a paragraph provided by a senior White House official that spoke of the prospect of future attacks against the United States.

These threat assessments, which provided the justification for President George W. Bush’s reauthorization of the wiretapping program every 45 days, became known among intelligence officials as the “scary memos,” the report said. Intelligence analysts involved in the process eventually realized that “if a threat assessment identified a threat against the United States,” the wiretapping and related surveillance programs were “likely to be renewed,” the report added.

It gets worse. According to Associated Press, "The Bush administration built an unprecedented surveillance operation to pull in mountains of information far beyond the warrantless wiretapping previously acknowledged, a team of federal inspectors general reported Friday, questioning the legal basis for the effort but shielding almost all details on grounds they're still too secret to reveal."

Can you believe this? I do. I will believe anything at this point. The scandals of the Bush years will haunt us for years to come. Someday George W. Bush will be sworn in to testify about what he was doing in the Oval Office. If he tells the truth, it will not be pretty.

The culture of fear and obedience hit closer to home for many of us. We can't all relate to wiretapping and eavesdropping. But many of us watch the ballgame. The nice thing about baseball is that the action stops when each half-inning ends and the teams switch places. That is when we go to the bathroom or pet the dog or check our email or whatever. These breaktime activities take place at the stadium also (except for the part about petting the dog).

In New York, where the Yankees play, the stadium plays God Bless America during the seventh inning stretch. The team has been doing this ever since 9/11. Most of these performances are played over the loudspeakers through an old recording from Kate Smith. For one fan who had to go the bathroom, he got up to head to interior part of the stadium. But he was stopped by security who objected that he had the nerve to run to the can during the nightly patriotic moment. The fan was kicked out of the stadium. He brought a lawsuit under the First Amendment, and the City of New York settled the case in the amount of approximately $20,000.

The culture of obedience is all around us. Stand for the Pledge of Allegiance and place your hand over your heart. Do not move around during God Bless America. Don't you know this is the land of freedom? Do what you are told. This is why the Yankees fan got kicked out of the stadium. He disrespected America. At least that is what his detractors would say.

More than 60 years ago, the U.S. Supreme Court addressed this issue, in West Virginia v. Barnett. The Court determined whether public schools could force kids to recite the Pledge of Allegiance. The answer is the schools cannot. The Court's language on this issue continues to ring true today:

To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. ... If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

They try to deny it, but Supreme Court justices have an enormous amount of power. They are not just deciding cases and making narrow rulings about constitutional interpretation. They are essentially making policy on issues that affect everyone, whether you know it or not. Constitutional provisions and federal laws are often vague enough that to be interpreted in various ways. It makes a big difference who the President nominates to the Supreme Court.

The U.S. Senate is focusing this week on Sonia Sotomayor, President Obama's choice for the Supreme Court. I'm going to tell you right now. Thank God Obama was elected. Had John McCain won the White House, another conservative would be appointed to the Court, further solidifying what is currently a 5-4 majority on the Court. Another Republican Justice would make it a 6-3 conservative majority.

That one vote can make all the difference. A 5-4 majority is one thing. The fifth conservative, Anthony Kennedy, sometimes grabs hold of himself and votes with the liberals, not so much because Kennedy is a closet liberal, but because he is not an ideologue, and the other conservatives probably scare him from time to time. Were retiring Justice David Souter replaced by a right-winger, Kennedy would lose his status as a swing vote and the fifth rock solid conservative and ... well, it would be all over as far as I'm concerned.

The conservative movement in this country wants to move the Supreme Court further to the right. Having a merely conservative Court is not enough. They want a Supreme Court that makes abortion illegal, grants unfettered gun rights and gives corporations unlimited First Amendment authority to donate zillions of dollars to political campaigns. Those are the hot-button issues before the Court, but the other issues that affect all of us don't get all the attention. Let me tell you how bad it can get on the Court.

The most conservative Supreme Court Justice is Clarence Thomas, appointed by George H.W. Bush in 1991 after a controversial nomination process that saw his former subordinate accuse him of sexual harassment. Since he is black, people thought Thomas would find his inner liberal and sympathize with civil rights victims. It never happened. Thomas has revealed himself as a reactionary who wants to interpret the Constitution in the way that the framers would have interpreted it. As far as Clarence Thomas is concerned, it is always 1787.

This means that public school students should have no free speech rights at all. In 2007, the Supreme Court decided Morse v. Frederick, finding that a school principal could legally discipline a student who unfurled a Bong Hits For Jesus Banner during a school trip. While the Supreme Court sided with the school in that case, it recognized that students continue to have limited rights under the First Amendment. But Justice Thomas took things further. He argued that students in public schools should have no First Amendment rights at all. None. Justice Thomas would overturn a 40 year-old Supreme Court precedent establishing that even students have rights under the First Amendment. His justification for this argument was that students in the 19th Century did not have speech rights. So they should have no rights in school today. This extreme view should have gotten more attention, but it got swept away, and I'm not sure many lawyers even know about it.

A few weeks ago, Clarence Thomas did it again. This time around, the case involved an adolescent girl who was strip-searched by school authorities looking for an Advil equivalent. The Supreme Court said the search violated the Fourth Amendment's prohibition against unreasonable searches and seizures. Who would argue to the contrary? Clarence Thomas wrote that the Fourth Amendment should not apply to public schools. Instead, we should return to in loco parentis, where schools take on the role as the student's parent and have unlimited authority to discipline the kids. There may be other ways to protect students, Justice Thomas said, but those protections cannot be found in the Constitution. Many conservatives worship Justice Thomas. They are worshiping a man who believes that public schools should be Constitution-free zones.

When George W. Bush ran for president, he said that Clarence Thomas was among his favorite Supreme Court justices. John McCain was Bush-lite. Lord knows who McCain would have picked, but it sure wouldn't have been Sonia Sotomayor. There is no way to predict for sure what kind of Supreme Court justice Sotomayor will become. At a minimum, she will not align herself with the conservatives. Having studied her opinions and argued cases before her on the Second Circuit Court of Appeals, I can say this: she has potential to be a damned good Justice, and anyone who voted for Obama and genuinely wanted to prevent another Republican presidency will be glad that she is on the Court.

The Army is one of the few jobs that forces you to do the work against your will. Unless you can somehow claim Conscientious Objector status. CO status does not come easily. It is not enough to oppose the war in good faith. You have to oppose all wars, and convince the military authorities that your newfound conversion is sincere.

A few weeks ago, the United States Court of Appeals in Manhattan ruled that a military doctor is entitled to conscientious objector status, crediting his belief that American involvement in Iraq and Afghanistan prompted him to sincerely change his mind about the morality of war. Cases like this don't come around very often.

The case is Watson v. Geren, decided on June 25, 2009. Watson is a doctor who joined the army in 1998. In 2004-05, after much soul-searching and study, Watson determined that he is opposed to all war, the Iraq and Afghanistan Wars in particular. He decided that his beliefs are incompatible with working for the army. The decision highlights the extensive process comprising the application for conscientious objector status, as Watson had to detail his beliefs, including when he developed his opposition to war. The application mentioned that he marched in anti-war rallies. Here is what he wrote, in part:

Over the past eight plus years of my medical training, more than seven years since the signing of my contract with the Army, the single unifying theme of all my academic and professional endeavors has been the improvement of individuals’ health and wellbeing.

The world and I both have since changed significantly from when I first entered this contractual relationship with the U.S. Army. As a form of retaliation and under the pretense of national security, the United States military has invaded and occupied a foreign country in an unprecedented pre-emptive war and I have become a doctor who now views war as an unacceptable lapse of reason, the ultimate act of futility and an entirely shameful human endeavor.

The tragedy of September 11, 2001 and our subsequent response in Afghanistan and Iraq have been profound catalysts for introspection, and constitute a radical turning point in my life. These ongoing events have led me to reconsider many of my views on life, God, religion, government, politics, and ultimately my role as a human being here and now on this small planet.

We live in a radically different world than we did before September 11, 2001 and our response with wars in Afghanistan and Iraq, and I am a changed person as a result. These ongoing wars, and the mass death and destruction resulting from them, have led me to more fully comprehend the immorality, cruelty and arbitrariness of violence in general, and particularly the futility of violent retaliation. They have led me to detest violence and reject it completely. These events, for me personally and my generation, are comparable to the massive loss of human life inflicted during the Vietnam War and its profound effect on the moral, ethical, and political beliefs of
millions of young people at that time.

A significant part of my response to these horrific events was to learn more about violence, the causes of violence, and alternatives to violence. They also caused me to search deeply within myself and to question my beliefs about life, death, warfare, violence and God.

But it's not easy to get conscientious objector status. Watson's chain of command recommended that his application be rejected, claiming that Watson's statements were vague and that his primary objection is the wars in Iraq and Afghanistan. The decisionmaker rejected the application in a one-page ruling that he "did not present convincing evidence ... that the applicant’s stated beliefs warrant award of [conscientious objector] status."

The federal trial court granted Watson's claim, overruling the Army, and the Court of Appeals affirms, ruling that there was no basis in fact for the army's rejection of Watson's request, and that the government's rationales on appeal are not convincing.

The U.S. argued, among other things, that the timing of Watson's request -- his residency was ending and active duty was approaching -- was expedient, and that he merely offered a "grab bag of references to various political and religious figures" to justify his opposition to war (including Gandhi, the Dalai Lama and Dr. Martin Luther King, by the way). But timing alone is not enough to reject the application, the Second Circuit says, and Watson was not just opposed to the current wars but all wars in principle. It was those wars that made Watson change his mind about war, but his application did express philosophical opposition to war in general. The Court of Appeals also shot down the government's contemptuous argument that Watson offered a "grab bag" of intellectual sources for his newfound objection to war.

The government also held it against Watson that he had a good lawyer to help him complete the application. There is little case law in the area of testing the sincerity of a conscientious objection, but the Second Circuit does find a case from 1976 that holds "it is impermissible to allow any negative inference about an applicant’s sincerity to be drawn from his attempts to procure legal advice from whatever source.”

As there was no reason to doubt Watson's sincerity in opposing war in principle, the government wrongly denied his conscientious objector application, and Watson wins the case.

Many years ago in high school, when I was reading a lot of rock criticism, a common theme among the more politically-oriented writers was that corporate American was killing music. The idea was that corporate-types at the record companies and radio stations were too conservative and afraid to try anything new in the way of innovative music.

While these writers were correct, they overlooked another music-killer: the celebrity and rock and roll lifestyle. Many great rock and rollers are dead because of the lifestyle, either from drugs or wild living. The real cause of Michael Jackson's death may be debated for a long time, but I know that he was a victim of the lifestyle that only rock stars get to experience. He may not have used hard drugs, but you know that the freak show that his life had become could not have happened without the millions of dollars that Michael Jackson squandered.

Michael Jackson became a mega-star in the early 1980's, a decade that gave us other mega-stars, like Prince and Bruce Springsteen. At the time, it was fashionable for rock fans to dismiss Michael Jackson's music as crap. I remember hanging around during lunch hour in high school when one guy said that he liked the Jackson Five but that Michael Jackson had become some kind of a fag. Except that some rock fans had to admit that Beat It was a pretty good song, mostly because of Eddie Van Halen's guitar solo. But I also remember reading Creem or some other rock magazine and an anonymous heavy metal singer who played in a bar band published a letter to the editor. He admitted that he absolutely loved the Thriller album and that, unbeknownst to his heavy metal friends, he played the album all the time.

MJ sold millions and millions of albums, but for many of us he was a guilty pleasure. Nothing that he did after Thriller made any sense to me, and once he decided to become freak it was all over. But Thriller has its moments. The title track was not bad, though it sounded like a re-write of some of his better songs, like Don't Stop Till You Get Enough. Beat It wasn't bad, though it seemed like MJ was trying too hard to write a straightforward rock song.

But his greatest songs, for me, were Billie Jean and Wanna Be Startin' Something. Billie Jean had a haunting melody and genuinely good lyrics. Wanna Be Startin' Something is one of the great grooves of all time. For MJ, it was his Mount Everest, reaching heights which he would never see again. A friend of mine once said that all he wanted out of life was to write two great songs. These two, then, put Michael Jackson in rarified air. Dig 'em now, and don't be ashamed to admit it. These are great songs.