Raging Red

Well, the FISA bill with retroactive telecom immunity passed today, with help from our own Senator Jay Rockefeller. No surprise there — he’s the one who struck this deal with the devil Dick Cheney in the first place. The way I see it, even if you think telecoms should not be held liable for their cooperation with the Bush administration’s illegal wiretapping program (not my opinion), that doesn’t mean Congress should categorically give them immunity via statute. The plaintiffs deserve their day in court, but Congress has just taken that away from them. Whether or not and/or to what extent telecoms should be held liable is an issue that should be litigated in the courts. Without this legislation, telecoms could still prevail with a judge or jury.

Telecoms already have immunity under existing FISA laws if they meet one of the following requirements:

(d) Defense.— A good faith reliance on—

(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization;

(2) a request of an investigative or law enforcement officer under section 2518 (7) of this title; or

(3) a good faith determination that section 2511 (3) or 2511 (2)(i) of this title permitted the conduct complained of;

is a complete defense against any civil or criminal action brought under this chapter or any other law.

So even though some telecoms did not cooperate with the Bush administration — on the advice of their attorneys who warned that the warrantless wiretapping program was illegal — the ones who did cooperate now have immunity, regardless of whether or not they knew or should have known that they were aiding and abetting illegal conduct.

But more important than the issue of whether telecoms should be liable is whether or not the Bush administration should be held accountable for its illegal and unconstitutional actions. Sen. Rockefeller claims to believe that President Bush should be held accountable, but the passage of this bill today pretty well seals the deal that the details of this program are not ever going to come to light. Since Congress isn’t actually doing anything to hold the administration accountable, the discovery process in the law suits against the telecoms was pretty much the only investigative vehicle left to find out more about the warrantless wiretapping program. (Whether the government and/or telecoms would ultimately have been successful in withholding information based on claims of state secrets is an open question, but now there’s not even a chance of them being forced to disclose anything.)

This is from a Washington Post op-ed written by Rockefeller last fall:

Today there is significant debate about whether the underlying program — the president’s warrantless surveillance plan — was legal or violated constitutional rights. That is an important debate, and those questions must be answered.

[...]

[L]awsuits against the government can go forward. There is little doubt that the government was operating in, at best, a legal gray area. If administration officials abused their power or improperly violated the privacy of innocent people, they must be held accountable. That is exactly why we rejected the White House’s year-long push for blanket immunity covering government officials.

To be blunt, I think Rockefeller is full of shit. If he genuinely cared about accountability, he would not have entered into a deal with Cheney to give the administration exactly what it wanted. I’m not sure what constituency Rockefeller thinks he’s representing. I didn’t see any Americans (let alone any West Virginians) clamoring for telecom immunity. To my eyes, Rockefeller was representing a constituency of one — himself (see also here).

As for the presidential candidates, John McCain voted for it and Barack Obama voted against. I don’t believe Hillary Clinton was present for the vote.

By the way, I highly recommend reading the various links in this post if you aren’t up on all the details of how this whole thing unfolded and what it all really means. I didn’t want to bog the post down with too much information, so I included tons of links instead.

I don’t have time for much commentary on this right now (it’s the holidays, dontcha know), but I wanted to post it. From today’s Charleston Daily Mail:

The second felony stemmed from the hate-filled letter police say McCoy left on the door of his upstairs neighbor in an apartment building on Market Street in Spencer. McCoy was living in an apartment with his mother at the time, police said.

“It was threatening, very threatening,” Spencer Police Chief Gary Williams said. “It put the victim at great fear … When they brought this letter over here, we were just astounded by the content. We jumped on it immediately.”

A person familiar with McCoy matched his handwriting with that on the letter sent to his neighbor, Williams said.

The investigation into the letter included interviews and statements from family members, Cole said. These statements eventually led to McCoy’s arrest for the cat mutilation, police said.

Spencer police consulted with the state Attorney General’s office on filing the hate crime charge, Williams said. The chief said he believed McCoy’s was only the second successful prosecution of a hate crime in state history.

The guy pled guilty to the hate crime charge. I’m curious what “consulted with the state Attorney General’s office” means exactly.

Over the weekend there were two interesting articles in the Charleston Gazette regarding the Megan Williams rape/torture/kidnapping case. (For background, here are all of my posts on the case.) Logan County prosecutor Brian Abraham has still not decided whether or not he will file bias crime* charges against the so-called Logan Six. There’s been a bit of wrangling between the county prosecutor and the Attorney General’s office, which took an interesting turn yesterday — Attorney General Darrell McGraw now wants to take over the case.

On Saturday, the Gazette reported that the Attorney General’s office had refused to issue a legal opinion to the prosecutor regarding whether or not West Virginia’s bias crime statute could apply to the Megan Williams case. Abraham requested the legal opinion in a letter dated September 20th, though this hadn’t been reported until now (at least, not to my knowledge). According to the prosecutor, the AG’s office initially claimed that state law authorizes the AG to issue legal opinions only to a certain list of state officials, not including county prosecutors. Abraham objected, pointing out (correctly) that state law requires the AG to issue opinions to those listed state officials but does not prohibit the AG from issuing opinions to others.

The prosecutor claims that in a phone call with Fran Hughes, Chief Deputy AG, she told him that the AG couldn’t issue the legal opinion because the office lacked the resources to do so and because they didn’t want to get involved in this controversial case. Hughes denies saying the latter and claims that it’s the prosecutor who doesn’t want to make the difficult decision. She stated that the prosecutor is perfectly capable of making that legal determination on his own and shouldn’t be passing it off on the AG’s office. The prosecutor objected to this, stating that he was still going to make the decision on his own, but he wanted the AG’s legal opinion because the court would be required to give it great weight.

After reading the “he said, she said” in Saturday’s article, it sounded to me that it was the prosecutor, not the AG, who was trying to avoid potential political fallout in this highly publicized case. It seemed odd to me that the prosecutor would ask the AG’s office to interpret the bias crime law and then state that he’s still planning to make the decision on his own. I can’t believe that the prosecutor would file bias crime charges after receiving a legal opinion from the AG that they aren’t applicable in this case, if the AG were to come to such a conclusion. Plus, it seems premature for the prosecutor to seek a legal opinion at this stage. I would think this might be something the prosecutor would do down the road in the event of an appeal. So it did kind of look like the prosecutor was asking the AG to do his job.

The second Gazette article confirmed this perception.

Continue reading ‘New Developments in the Megan Williams Case’

I’ve been beating the hate crime drum for the so-called “Logan 6.” (I generally don’t like it when the media use sensational nicknames to refer to criminals, but after writing “the six people in custody for holding Megan Williams captive and torturing her” too many times, I see why they do it.) Today the Charleston Gazette reported some new information that is causing me to lean toward this not being a hate crime. All I’ve been trying to argue is that if there’s enough evidence from which a jury could conclude it was a hate crime, then hate crime charges should be filed. If there isn’t enough evidence, then they shouldn’t be filed. All other arguments for not filing hate crime charges (it’s duplicative, they already face stiff penalties, we don’t know for sure if it was a hate crime, etc.) are unconvincing to me.

After reading this additional information, it looks like what we know so far about this crime is just the tip of the depraved iceberg. The Gazette reported today that authorities now believe Megan Williams was at the Brewsters’ trailer in Logan County for more than five weeks — from August 2nd through September 8th. On August 2nd, Bobby Brewster was released from jail after being charged with domestic battery against Megan Williams, for which he was arrested on July 18th. Williams was initially at the Brewsters’ home voluntarily, but at some point during those five weeks, they put her in a shed in their yard and told her that if she tried to leave they would beat her and set the shed on fire. She was in the shed for a period of days.

This is based on information from the victim and a confession made by Frankie Brewster. Brewster also told the police that Danny Combs raped Williams in the bathroom of the trailer, so the violence against her started before she was in the shed. When the police found Williams, she was in the trailer, not the shed. So at this point, who the hell knows what the total sequence of events was.

This is all so sickening. New charges were added yesterday, and now all six of them are charged with kidnapping and 1st degree sexual assault. Just looking at the sheer number of counts that these six people are charged with gives you a glimpse of what Williams went through:

• 33 counts of battery
• 8 counts of 1st degree sexual assault (a.k.a. rape)
• 6 counts of kidnapping
• 4 counts of malicious wounding
• 2 counts of assault during the commission of a felony

So it now appears that what these people did to Williams may have been retaliation for her turning Bobby Brewster in to police for committing domestic battery against her. At least, maybe that’s what instigated it. That’s what’s causing me to believe that this may not have been a hate crime.

There was a new detail that supports the idea that it was at least partly racially motivated — Bobby Brewster told his mother that if Williams tried to leave he would put a bag over her head and hang her from a tree. Can’t miss the allusion there.

Since I know lots of people have been following the Megan Williams story, and since there seems to be some confusion about what constitutes a hate crime in West Virginia, I figured I’d write up a little primer on West Virginia’s hate crime statute. Media reports have latched onto the fact that the victim knew at least one of the six people in custody, as if that negates the possibility that this was a hate crime. It doesn’t. More on that later.

West Virginia’s hate crime statute is codified at W. Va. Code §61-6-21 and is entitled “Prohibiting violations of an individual’s civil rights; penalties.” Enacted in 1987, this statute did a few things.

First, it declared that:

All persons within the boundaries of the state of West Virginia have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation or sex.

Second, it created a new crime with a maximum penalty of a $5,000 fine and/or 10 years in prison:

If any person does by force or threat of force, willfully injure, intimidate or interfere with, or attempt to injure, intimidate or interfere with, or oppress or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of the state of West Virginia or by the Constitution or laws of the United States, because of such other person’s race, color, religion, ancestry, national origin, political affiliation or sex, he or she shall be guilty of a felony, and, upon conviction, shall be fined not more than five thousand dollars or imprisoned not more than ten years, or both.

Third, it created a new aggravating circumstance that can be considered at sentencing for other crimes:

The fact that a person committed a felony or misdemeanor, or attempted to commit a felony, because of the victim’s race, color, religion, ancestry, national origin, political affiliation or sex, shall be considered a circumstance in aggravation of any crime in imposing sentence.

Various factors go into the decision of what sentence to impose when someone is convicted of a crime. Some factors might lower the sentence and others might increase it. This law established that when a judge or jury sentences someone for a crime, the sentence will be increased if the crime was committed because of the victim’s race, color, religion, ancestry, national origin, political affiliation, or sex. So, even if the prosecutor ultimately decides not to bring hate crime charges in the Megan Williams case, the issue of racial bias will likely come up at sentencing, assuming they are convicted of some or all of the charges they’re facing.

Continue reading ‘West Virginia’s Hate Crime Law: A Primer’

Yesterday afternoon some local pastors held a press conference with the parents of Megan Williams, urging the prosecutor in Logan County to file hate crime charges and asking the U.S. Department of Justice to take over the case if the prosecutor decides not to pursue charges under West Virginia’s hate crime statute. You can watch the entire press conference here. I think the family had misunderstood an article that appeared in the Gazette yesterday morning with the headline “No hate charges in torture case,” because it didn’t specify that it was referring to federal hate crime charges. (In the article it did, but not in the headline, and I can see how someone could have misread the article.)

The state prosecutor has said that the investigation is still underway and that new charges, including hate crime charges, could be filed. Logan County Prosecutor Brian Abraham said they are initially focusing on the charges that carry the stiffest penalties — kidnapping, sexual assault, and malicious wounding.

At the press conference, Reverend Emanuel Heyliger made a compelling argument for filing hate crime charges. As I wrote yesterday, the purpose of a hate crime statute is to make a clear expression of community disapproval of crimes that target people because of things like their race, gender, religion, or sexual orientation (though West Virginia’s hate crime law doesn’t apply to sexual orientation). Reverend Heyliger made this point well (this is my transcription, which I edited in a couple places for clarity):

The family is aghast and totally devastated by the findings of the local prosecutor that this barbaric, heinous, despicable crime is not one where racial hatred has [permeated] the very core of this evil and sick treatment meted out to this young woman of African-American descent. You have to call it what it is.

There are three pastors here and they each have heard from the victim’s own testimony, own lips, about the racial invectives that were used while they were [committing] the brutal acts that were done to this young lady. There can be no backsliding at this time. The days of judicial apartheid are behind us. We cannot — with the world watching with bated breath to see justice in action — fumble in this opportunity to send a clear and unmistakable signal that we as a society will not and cannot condone such reprehensible conduct.

Mr. Logan Prosecutor, we are urging you to reconsider your findings regardless of who submitted — who gave you advice — and if you are unwilling or unable, we are calling on the Justice Department to intervene immediately and take over this case. We are not silent and we shall never be silent until there is full justice for Megan Williams, because thundering in the prodigious hills of West Virginia and sloping down the mountains to the valleys of our beautiful state, the words of the Prophet Amos are still true: “Let justice roll down like a mighty flood and over the land and the seas.”

It’s true that these people already face the possibility of life in prison based on the charges that have been filed. But what’s the point of having a hate crime statute if you’re not going to use it? The maximum penalty under WV’s hate crime law is ten years, so does that mean a prosecutor would never charge someone with a hate crime if they were already charged with a crime that carries a stiffer penalty? The purpose of charging someone with a hate crime isn’t just the penalty imposed — it has symbolic value.

Continue reading ‘You Have to Call it What it Is’

I feel like I should write about this horrific story that is putting West Virginia in the national spotlight, but I’m not sure what to say. I think I’d like to just get the story out there for anyone who hasn’t heard about it yet.

It’s a particularly brutal story, and not just because of the details of what happened to the victim, though that is of course the most awful part. Megan Williams, a 20-year-old mentally challenged black woman from Charleston, was held captive in a shed for a week in Big Creek, WV (about an hour southwest of Charleston) and was raped, beaten, stabbed, choked, forced to eat animal feces, and tortured in various other ways, until police received an anonymous tip and found her. Six people, all white, were arrested and charged with sexual assault, kidnapping, malicious wounding, battery, and lying to the police, among other charges. The group of six includes a mother and her son and another mother and her daughter, plus two other men.

The case is being investigated as a possible hate crime under state law. (Here’s a link to West Virginia’s hate crime statute.) The perpetrators reportedly called Williams a n*gger while stabbing her and told her: “This is what we do to n*iggers around here.” Also, the F.B.I. is investigating the incident for possible civil rights violations.

Based on subsequent reports, it seems that they should be charged with attempted murder as well. The magistrate who arraigned all six of them said that one of them, Frankie Brewster, told him that they had planned to take the woman to East Lynn Lake (about 30 miles west of Big Creek) and kill her. The magistrate said she just blurted it out at her arraignment. The things they were doing to Williams in that shed were certainly things that could have ended up killing her.

The fact that there were so many people involved in the crime is pretty stunning. In addition to the six people in custody, initial reports said that two people whom Williams knew had driven her to the location where she was held captive and tortured and that police were still looking for the two people. Other reports say it was one woman who drove her there. So it’s possible that up to eight people were involved.

Continue reading ‘Vicious Hate Crime in West Virginia’

Aw, my pal Andrew made it to Boing Boing. I’m sleepy and a tad drunk at the moment so I don’t have much to add, but I just wanted to post this lest I forget.

I appreciate Andrew’s optimism (honestly, I do), but I’m not sure an $80,000 settlement will make public officials think twice about anything. But I guess after seven years of a Bush presidency, man, do peanuts taste good.

Go, Andrew! Best of luck in Connecticut.

UPDATE: Via Pam at Pandagon, here’s a link to the heavily redacted Presidential Advance Manual (pdf), which describes in detail how to deal with demonstrators — firstly, how to prevent them from attending events at all, and lastly, how to get rid of them if they do show up. As it turns out, Bush’s Advance Team didn’t follow its own manual in “dealing with” Nicole and Jeffrey Rank at President Bush’s July 4, 2004 visit to Charleston.

The manual clearly states that the roll of the Secret Service is limited to identifying people who may be a physical threat to the president.

If the demonstrators appear to be a security threat notify the Secret Service immediately. If demonstrators appear likely to cause only a political disruption, it is the Advance person’s responsibility to take appropriate action. Rally squads should be dispatched to surround and drown out demonstrators immediately.

“Rally squads” are small groups of volunteers (e.g., “college/young Republican organizations, local athletic teams, and fraternities/sororities,” the manual states) who basically run defense against demonstrators by holding up signs to block them or chanting louder than the demonstrators are.

The manual also clearly states:

As a last resort, security should remove the demonstrators from the event site.

That’s not how Team Bush responded to the Ranks. The Ranks were merely standing there among the crowd wearing t-shirts with anti-Bush slogans. They had no signs, they weren’t chanting, there’s no way anyone could have thought they might be a security threat. More than three years have passed since this happened, so I may not have every detail exactly correct, but I blogged about it quite a bit at the time and the way I remember it happening is that when the Ranks were spotted in their anti-Bush t-shirts, they were asked to leave the main event area and go to the designated “free speech zone,” a roped-off area away from the main site. When they refused to move, the local police handcuffed them, removed them, and cited them for trespassing.

On the day the Ranks appeared in court to face the trespassing charges, the prosecutor dismissed the charges. The police said that they had been acting at the direction of the Secret Service and they, along with Mayor Danny Jones, issued an apology to the Ranks. Getting an apology from the police is no small thing — we all know how reluctant police are to admit wrongdoing.

Finally, a fun fact: The Ranks were from Texas, but they were in West Virginia in 2004 because Nicole Rank was working for FEMA, helping out with some major flood damage in the state. After the t-shirt incident, she was told by FEMA that she was “no longer needed in West Virginia.” They effectively fired her.

So says the President. Scooter Libby was sentenced to 30 months in prison for his conviction on four felony counts — one count of making false statements to the F.B.I., one count of obstruction of justice, and two counts of perjury. I looked up the average sentences for these three crimes to see how Libby’s sentence compared. Here are the statistics from fiscal years 2001 through 2005. (I included the code sections so you can look them up if you want.)

False Statement, 18 U.S.C. §1001(a)(2)

Average prison sentence: 11.82 months

Obstruction of Justice, 18 U.S.C. §1503

Average prison sentence: 46.33 months

Perjury, 18 U.S.C. §1623

Average prison sentence: 28.50 months

Again, Libby was sentenced to 30 months for his four felony convictions. Looks like his sentence was actually on the light side.

There’s a web exclusive column by Michael Isikoff and Mark Hosenball at Newsweek called “Scooter Libby’s Pardon Problem,” in which Isikoff and Hosenball argue that the Department of Justice’s guidelines for Presidential pardons present a “significant roadblock on the path to Libby’s salvation,” that is, his chances of being pardoned by President Bush. They seem fairly sure that because the President has been stingy in granting pardons during his tenure — granting fewer than any president in the past 100 years — and because he has strictly adhered to the DOJ’s guidelines in granting those pardons, Libby doesn’t have much of a chance.

I have to wonder whether these guys have been asleep for the past six years. Since when does the Bush administration care about rules?

Libby definitely doesn’t meet the eligibility requirements in the DOJ guidelines. He’d have to wait until five years after he is convicted or released from confinement, whichever is later, before he could petition for a pardon. He’d also have to have exhausted all other legal remedies (i.e. appeals) before he could seek a pardon. Libby could still be in the midst of his appeal when Bush’s presidency ends, and he certainly will not have finished out whatever sentence he receives (let alone be five years past it).

I don’t think I need to list every example of the Bush administration’s disregard for the law, but for starters, how about their NSA warrantless wiretapping program? Two Oregon lawyers now have the distinction of being the first Americans with documented proof that the government listened in on their phone calls without first obtaining a FISA warrant. As a poetic example of the Bush administration’s incompetence working in America’s favor for once, the Treasury Dept. inadvertently turned over a top secret log of the lawyers’ phone conversations that had been compiled via government eavesdropping.

When the Bush administration has shown a casual contempt for the Constitution, what makes Isikoff and Hosenball think that Bush feels bound by rules he’s not even required to follow?

§ 1.11 Advisory nature of regulations.The regulations contained in this part are advisory only and for the internal guidance of Department of Justice personnel. They create no enforceable rights in persons applying for executive clemency, nor do they restrict the authority granted to the President under Article II, Section 2 of the Constitution.

President Bush is notoriously unsympathetic toward convicted criminals who are seeking pardons, so my hunch is that his publicly expressed desire to stick to the guidelines is just a convenient excuse to avoid getting into any discussions about specific cases. I don’t think he just selectively has a special reverence for this set of advisory guidelines over others, like that pesky 4th Amendment. Obviously, who knows if he’ll pardon Libby. If I had to put money on it, though, I’d guess that he’ll pardon him right before leaving office. It would be one last “fuck you” to the American public.