The Daily Parker

Julia Ioffe interviews David Scheffer, a lawyer and professor who served as Bill Clinton's ambassador-at-large for war crimes, to provide some clarity around South Africa's suit against Israel in the International Court of Justice:

South Africa is alleging the entire corpus of the Genocide Convention and its application, namely that Israel has failed to prevent genocide against Gaza and that it is committing genocide against Gaza. It is a very fulsome application. South Africa is not asking the I.C.J. to make a finding of a failure to prevent, or a commission of, genocide. They are asking the I.C.J. to direct Israel through what are called provisional measures to do what is necessary to prevent and not commit genocide in Gaza, to take those measures while the I.C.J., over a much longer period of time, considers the merits of South Africa’s allegations. For a commission of genocide, one needs to establish that both the genocidal act has occurred and that it has occurred with the specific intent to destroy all or part of a national, racial, religious, or ethnic group. The dolus specialis, we call it—the specific intent to do that. That’s why, particularly on a merits stage, it takes time to put those two together: the genocidal acts, and the mens rea of the specific intent.

The application disgorges an enormous amount of publicly available information about what has happened in Gaza. We all know that it’s a humanitarian catastrophe of some dimension in Gaza right now. I don’t want to diminish the importance of that. But nowhere in South Africa’s application is there any recognition that there is a war taking place. This is not a genocide like Rwanda or of the Rohingya or the Yazidis in recent times, where these were just authoritarian regimes that went after populations that were not attacking them.

But this is a war. There is an act of self-defense by Israel. Now, that does not mean that Israel has clean hands on absolutely everything it’s done, absolutely not.

I think genocide is a very powerful word. You get everyone’s attention. South Africa could just as easily say, “We clearly think atrocity crimes are occurring now in Gaza. We’re not prepared yet to say whether it’s genocide or not.” But they did make a determination: They want to call it genocide. And they’re free to do so. I don’t blame them. 

But in the court of law as well as in the court of public opinion, I think it’s very important that we not embrace that word in this particular conflict until there’s a better understanding of what is occurring in terms of warfare and of the humanitarian plight of the Palestinian people. 

At the same time, as I have pointed out, Hamas could stop it all tomorrow by surrendering. Hamas has the power to prevent genocide. It has had the power to prevent genocide even after it, itself, probably committed genocide on October 7th. It had the power, after October 7th, to subject none of the Palestinian population to what South Africa describes as genocide. Hamas had the power and it did not use that power. Hamas has no right to fight on. It has no right of self-defense. And furthermore, by virtue of the fact that it continues to fight, it brings an enormous amount of suffering and destruction upon the Palestinian people, all of which it could stop by simply surrendering.

The last paragraph I quoted is particularly important. For all the online outrage I see about Israel's military campaign against Hamas, I don't see many Palestine supporters recognizing that Hamas started this, and Hamas can end it.

Because really, October 7th and what happened afterwards comes down to Hamas wanting to destroy Israel. People seem to forget that.

Netanyahu has to go, soon, along with all the right-wing crazies propping up his government. But so does Hamas.

When you don't pay your attorneys, and then you don't pay the attorneys you had to hire because the first set of attorneys sued you for payment, you start to look like an absolute ganif to the legal community. Maybe that's why the XPOTUS could only find the kind of attorney who would advance a legal theory that surprised just about everyone in the DC Circuit Court of Appeals yesterday:

In a hearing before the D.C. Circuit Court, the former president’s lawyers argued that he should be immune from criminal prosecution for his role in the attempt to steal the 2020 presidential election. This argument has an obvious flaw: It implies that the president is above the law. Such a blunt rejection of the Constitution and the basic concept of American democracy is too much even for Trump to assert—publicly, at least—so his lawyers have proposed a theory. They say that he can’t be criminally prosecuted unless he is first impeached and convicted by Congress.

This argument is no less dangerous, as a hypothetical asked in court demonstrated in chilling terms. Judge Florence Pan asked Trump’s attorney, D. John Sauer, if “a president who ordered SEAL Team 6 to assassinate a political rival” could be criminally prosecuted. Sauer tried to hem and haw his way through an answer but ultimately stated that such a president couldn’t be prosecuted unless he was first impeached, convicted, and removed by Congress.

In effect, Trump has realized that, just as none of his voters would desert him over murdering a man on Fifth Avenue, nothing he could do would be so bad that congressional Republicans would abandon him. He doesn’t need a majority, either. Under the argument his lawyers made in court today, all Trump needs is 34 Republicans who will vote not to convict, and that’s sufficient to guarantee he can act with impunity.

Yes, but what about that little logical flaw, the one that Judge Florence Pan saw immediately? Doesn't the argument admit something at odds with the XPOTUS's claim of absolute immunity? Well, yes, actually:

[Pan] pointed out that this would mean presidents can be criminally prosecuted under certain circumstances. In other words, Trump does not have absolute immunity.

“Doesn’t that narrow the issues before us to…‘can a president be prosecuted without first being impeached and convicted?’” Pan said. “All of your other arguments seem to fall away.”

“Once you concede that there’s not this absolute immunity, that the judiciary can hear criminal prosecutions under any circumstances—you’re saying there’s one specific circumstance—then that means that there isn’t this absolute immunity that you claim.”

Pan also noted that Trump appeared to be trying to have it both ways. During his second impeachment trial, Trump and some of his Republican allies argued that the Senate shouldn’t convict him because he would face criminal prosecution later. But now, he claims he shouldn’t have to face prosecution, either.

I guess you don't have to represent yourself in court to have a fool for a lawyer. (He was going to do that, too, before the judge told him he'd go to jail for contempt if he speechified.) Then again, John Sauer has a fool for a client, so...

I don't usually do link round-ups on Saturday mornings, but I got stuff to do today:

• Josh Marshall is enjoying the "comical rake-stomp opera" of Nikki Haley's (R-SC) primary campaign.
• The Economist pokes around the "city" of Rosemont, Ill., a family-owned fiefdom less than 10 km from Inner Drive Technology World HQ.
• The New York Times highlights the most informative charts they published in 2023.
• The Chicago Tribune lists some of the new Illinois laws taking effect on Monday. My favorite: Illinois will no longer bar marriage licenses for out-of-state same-sex couples whose home jurisdiction prohibits same-sex marriages.
• The CTA plans to build out 10 blocks (2 km) of "community space" under the new Red/Purple Line trestle under construction in Uptown and Edgewater.

Finally, two restaurants in Chicago—well, one restaurant and one infamous hot-dog stand—have joined forces to create the Chicago Croissant, which "features a char-dog rolled into a pastry lined with mustard, relish and onions. Definitely no ketchup. It’s topped with poppy seeds and celery salt and garnished with a tomato, pepper and pickle." This, they claim, is a breakfast food.

Due to an odd combination of holidays, a use-it-or-lose-it floating holiday, and travel, I'm just about done with my first of four short work-weeks in a row. Not that there's anything wrong with that.

Of course, since I would like to finish the coding problem I've been working on before I leave today, I'll have to read some of these later:

• Josh Marshall thinks it's hilarious and pathetic that Rep. Lauren Boebert (R-CO), realizing she can't win against a Democrat in her own district, said she'll run in the next district over.
• Jennifer Rubin points out that while you can blame anyone you want for what's wrong with US politics today, ultimately it's the voters.
• Authors Bob Bauer and Jack Goldsmith argue for the repeal of the Insurrection Act, not just because of the XPOTUS.
• Climate scientist Brian Brettschneider has charted the perfect year-long road-trip across the US where it's always (normally) 21°C.
• A truck driver found himself trapped in an Indiana creek for six days until some fishermen discovered him. (He's OK.)

Finally, police and firefighters in Lancashire, England, are glancing about sheepishly this evening after reports of a fire at Blackpool Tower turned out to be...orange construction netting. They still managed to arrest one person for "breach of the peace," though for what The Guardian didn't report.

Back when I was growing up, Rudy Giuliani destroyed the Italian mob in New York City. Today he declared Chapter 11 bankruptcy to avoid paying a $148 million defamation verdict—the day after the people he defamed sued him again for repeating the same defamatory statements outside the courthouse after the judgment was handed down:

Lawyers for the two Georgia election workers who won $148 million in damages from former Trump attorney Rudy Giuliani last week filed a new lawsuit Monday, asking a federal judge to order him to stop repeating his damaging debunked claims about the poll workers and to immediately enforce the jury’s massive award before his assets are dissipated.

Ruby Freeman and Wandrea Arshaye “Shaye” Moss asserted that Giuliani is continuing to baselessly accuse the former Fulton County election workers of manipulating the absentee ballot count to steal the 2020 election from former president Donald Trump in Georgia. The former New York mayor repeated the allegations during and after his defamation damages trial last week, even as his lawyer conceded in court the claims were wrong.

“Everything I said about them is true,” Giuliani told reporters outside the courthouse after the first day of his trial on Dec. 11, adding, “Of course I don’t regret it. … They were engaged in changing votes.”

I'm no doctor, but it looks like Giuliani has suffered from dementia for a long time, and it's getting worse. He appears to have no self-awareness or self-control at this stage. Other circumstantial evidence suggests late-stage alcoholism. Whatever the cause, the man stopped making sense long before he started working for the XPOTUS—even before he tried to cancel the 2001 New York mayoral election:

Once he was the toast of town. As a federal prosecutor he sent a congressman to jail, locked up mobsters and indicted white-collar criminals. As mayor, he made the streets again feel safe. Love him or hate him, crime precipitously dropped on his watch.

In the days and months following 9/11, he projected strength, confidence and reassurance. He had braced himself for a calamity; he just didn’t know its source or when it would happen. He was steady when crunchtime arrived.

As mayor, his tenure was consequential. His eight years at city hall rank up there with Fiorello La Guardia, Michael Bloomberg and Ed Koch. All that feels like aeons ago.

Yet Giuliani’s latest woes cannot be described as wholly surprising. He always possessed a penchant for drama and a tropism for the transgressive. He loved the opera and his life emerged as operatic. As a prosecutor, he dressed up “undercover”. Then as mayor, he performed onstage in drag with Trump.

All that came with a darker side. The warning signs were there. We just chose to ignore them.

Amid his first campaign for mayor, in 1989, a story broke of a concentration camp survivor, Simon Berger, being held in federal custody, facing a blackboard that read “Arbeit Macht Frei” the slogan written across the gates of Auschwitz. Berger would be acquitted. Decades later, Dunphy alleged that Giuliani has a problem with Jews.

I lived in New York City while Giuliani was mayor, though. As Donna Lieberman of the New York Civil Liberties Union reminded me while researching this post, even at his most popular, he was a bit unhinged:

Whatever may be going on with Rudy Giuliani personally, let’s be clear: while, for one brief moment in his career he served as a cheerleader for a devastated city and a shocked nation, the rest of Rudy Giuliani’s mayoralty was driven by a hostility to free expression, police brutality and violence, and an authoritarian disregard for democracy.

Let’s start with the First Amendment. The New York Civil Liberties Union was involved in 34 First Amendment lawsuits against the Giuliani administration – and prevailed in 26 of them. Those cases successfully challenged the firing of Police Officer Yvette Walton in retaliation for testifying before the City Council about racial profiling; the attempt to censor the Sensations exhibit at the Brooklyn Museum; the ban on press conferences and demonstrations by Giuliani critics on the steps of City Hall; the ban on condom distribution as part of AIDS education in City Parks; police harassment of homeless people sleeping on the steps of the Fifth Avenue Presbyterian Church; and singling out political demonstrators charged with minor offenses so that they could not get appearance tickets to return to court and often had to stay in jail overnight.

In the seven-and-a-half years before 9/11, let there be no mistake: racial bias, fear-mongering, and police brutality were the hallmarks of Giuliani’s mayoralty.

As mayor, Giuliani oversaw a policing regime repeatedly engaged in persecution and brutal assaults and killings of Black and Hispanic New Yorkers, using unlawful stop-and-frisk policies to jail Black and Hispanic New Yorkers in service of his ‘broken windows’ policing. Every time the NYPD killed a Black man, Rudy Giuliani was right there not only defending the police, but attacking the victim.

I will never forget his tirade against Patrick Dorismond, a 26-year-old Black security guard and father of two, after undercover police officers killed Dorismond after initiating a scuffle while on the job in Manhattan. Giuliani attacked Dorismond’s character and publicly revealed his legally-sealed juvenile record. It was Giuliani‘s notorious street crimes unit that killed Amadou Diallo in the lobby of his apartment building.

Rudy Giuliani has always had an authoritarian streak coupled with a belief that the rules didn't apply to him. Fortunately, he behaved so badly for so long that no one ever gave him more power after his mayoralty ended in 2001. And I mention all this because, as bad as Giuliani has always been, and as far as he's descended into dementia and insanity...the XPOTUS is worse.

Polls open in 319 days.

The XPOTUS racked up another first-in-history court ruling yesterday that already has US Supreme Court law clerks cancelling their Christmas vacations:

Colorado’s top court ruled on Tuesday that former President Donald J. Trump is disqualified from holding office again because he engaged in insurrection with his actions leading up to the Jan. 6 storming of the Capitol, an explosive ruling that is likely to put the basic contours of the 2024 election in the hands of the U.S. Supreme Court.

The Colorado Supreme Court was the first in the nation to find that Section 3 of the 14th Amendment — which disqualifies people who engage in insurrection against the Constitution after taking an oath to support it — applies to Mr. Trump, an argument that his opponents have been making around the country.

In the Colorado court’s lengthy ruling on Tuesday, the justices there reversed a Denver district judge’s finding last month that Section 3 did not apply to the presidency. They affirmed the district judge’s other key conclusions: that Mr. Trump’s actions before and on Jan. 6, 2021, constituted engaging in insurrection, and that courts had the authority to enforce Section 3 against a person whom Congress had not specifically designated.

“A majority of the court holds that President Trump is disqualified from holding the office of president under Section 3 of the 14th Amendment to the United States Constitution,” the justices wrote. “Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado secretary of state to list him as a candidate on the presidential primary ballot.”

The Post has four takeaways:

1. The historical and political impact may exceed the direct impact

The decision is at once explosive and likely to have little direct impact on the 2024 election.

Colorado has trended blue in recent decades and is not considered a competitive state in presidential elections, having given President Biden a 13.5-point victory in 2020. That made it the 14th-bluest state — the kind of state that if Trump ever won it, he would most likely secure more than enough electoral votes to be elected.

2. The court disagreed with a judge who ruled presidents were different

Section 3 of the 14th Amendment bars from “any office, civil or military, under the United States,” anyone who takes an oath “as an officer of the United States ... to support the Constitution of the United States [who] shall have engaged in insurrection or rebellion against the same.”

Denver District Judge Sarah B. Wallace...ruled that Section 3 wasn’t meant to pertain to presidents.

3. A Trump traffic jam is converging on the U.S. Supreme Court

Already in the last week or so, special counsel Jack Smith asked the Supreme Court to fast-track a decision on Trump’s claims to presidential immunity from his election-subversion indictment. Then the Supreme Court signaled it would review the use of a popular charge against hundreds of Jan. 6 defendants, including Trump: obstruction of an official proceeding. Some judges have rejected or expressed skepticism about that charge’s applicability.

4. A long-running 14th Amendment effort reaches a milestone

The decision is the culmination of a long-running effort to disqualify not just Trump but other Republicans over Jan. 6.

Efforts to disqualify members of Congress including Rep. Marjorie Taylor Greene (R-Ga.) and now-former congressman Madison Cawthorn (R-N.C.) failed, in part, because it was harder to directly attach them to the events of Jan. 6.

I believe this was the correct, historical application of the 14th Amendment, and at the same time a risky strategy. Under any plain-language reading of the Constitution and the history of its adoption, the President is an officeholder, not a monarch, and so subject to the laws of the country. And the 14th Amendment exists precisely because Federal officeholders made war against the Constitution in order to preserve slavery.

But today's Republican Party bears no resemblance to the Republicans who wrote the Amendment in 1868, having decided that the only way to handle a dangerous fascist in their party was to join him. The XPOTUS continues to yell about "election fraud" as part of his Big Lie, so obviously he'll spin the Colorado case as proof of it. A reasonable person might think of it like killing your parents and then begging sympathy as an orphan, but clearly a third of the US have left reason behind in the 1960s.

We're a week and a half from 2024, and the times just keep getting more interesting...

A while ago, I posted two constitutional amendments I'd like to see, to set term limits for the Supreme Court and for Congress. I also proposed an amendment to make the Justice Department independent of the other three branches of government.

Monica Lewinsky proposes six new amendments, including getting rid of the Electoral College and—well, an old amendment:

The most fundamental underpinning of a democracy is the fact that those who govern are chosen through free and fair elections. Especially heads of state. The Electoral College ain’t it. State electors are appointed by methods determined by each state’s legislature. That makes it an inherently political system that detracts from the very heart of democratic governance. Moreover, the Electoral College was derived from a mindset that sought to protect slavery, so it is high time for it to go.

And while we’re at it—because you might be a woman or have a daughter, or, ya know, be a decent human being—let’s wedge in amendments such as the long-languishing Equal Rights Amendment, along with one that would reassert a woman’s right to reproductive freedom.

All of this does make me wonder what our Constitution and Bill of Rights would have looked like had they been created by founding mothers instead of fathers.

They all seem pretty sound to me. But my proposal to make Justice independent would obviate hers to make the President unable to stop a prosecution against himself.

After a month-long boycott of Chicago's Berlin Nightclub organized by Unite Here Local 1, the venerable institution closed for good today:

The announcement came hours after Unite Here Local 1, which represents the Berlin Nightclub workers who unionized earlier this year, also posted on Instagram the club’s owners told them the bar was permanently closed as of Sunday.

Workers at Berlin Nightclub, 954 W. Belmont Ave., had been leading a boycott of the popular LGBTQ+ bar for more than a month, claiming Schuman and Webster had never met with the union in person to negotiate its first contract.

Prominent drag performers like Irregular Girl, co-host of Berlin’s popular lesbian night “Strapped,” joined in solidarity, canceling their shows for the remainder of the boycott.

“Berlin has always been a sanctuary for trans people in Chicago who do not feel safe in many other places. … All of that is due to the hard work of the workers, many of whom are transgender themselves, all of whom are queer and all of whom are being mistreated and underpaid by Jim Schuman and Jo Webster,” Irregular Girl said during a rally outside the bar in October.

Berlin owners addressed the union’s actions in an open letter posted that week, claiming that the union’s proposals for higher wages, health care and pension benefits would cost the nightclub over $500,000.

None of Berlin’s union employees work more than 27 hours a week, and the club’s part-time employees earn a base hourly wage plus tips, according to a statement from the owners. All workers make between $22.50-$57 per hour with tips, the statement said.

In August, Berlin workers went on a two-day strike after organizers said Schuman and Webster repeatedly skipped bargaining sessions, bringing negotiations to a halt. Performers canceled their shows in support during the walkout.

Welp. Berlin was a straight-friendly gay club on the edge of Boystown (now known as Northalsted) when I first went there in the 1990s. It wasn't really my scene, but it was fun and campy, and occasionally some cool acts would play there.

I'm sad to see it go down like this. But closing to spite your union? That's not just a dick move, it may be illegal. I don't think this story is over.

Via Bruce Schneier, your car does not respect your privacy anymore:

Mozilla recently reported that of the car brands it reviewed, all 25 failed its privacy tests. While all, in Mozilla's estimation, overreached in their policies around data collection and use, some even included caveats about obtaining highly invasive types of information, like your sexual history and genetic information. As it turns out, this isn’t just hypothetical: The technology in today’s cars has the ability to collect these kinds of personal information, and the fine print of user agreements describes how manufacturers get you to consent every time you put the keys in the ignition.

Companies claim ownership in advance, so that you can’t sue if they accidentally record you having sex in the backseat, for example. Nissan claimed in a statement that this is more or less why its privacy policy remains so broad. The company says it "does not knowingly collect or disclose customer information on sexual activity or sexual orientation," but its policy retains those clauses because "some U.S. state laws require us to account for inadvertent data we have or could infer but do not request or use." Some companies Engadget reached out to — like Ford, Stellantis and GM — affirmed their commitment, broadly, to consumer data privacy; Toyota, Kia and Tesla did not respond to a request for comment.

This gets even more complicated when you think about how cars are shared. Rental cars change drivers all the time, or a minor in your household might borrow your car to learn how to drive. Unlike a cell phone, which is typically a single user device, cars don’t work like and vehicle manufacturers struggle to address that in their policies. And cars have the ability to collect information not just on drivers but their passengers.

Consumers are effectively hamstrung by the state of legal contract interpretation, and manufacturers are incentivized to mitigate risk by continuing to bloat these (often unread) agreements with increasingly invasive classes of data. Many researchers will tell you the only real solution here is federal regulation. There have been some cases of state privacy law being leveraged for consumers' benefit, as in California and Massachusetts, but on the main it's something drivers aren't even aware they should be outraged about, and even if they are, they have no choice but to own a car anyway.

Note to self: no more don't start having sex in my Prius.

We have unusual wind and sunshine for mid-November today, with a bog-standard 10C temperature. It doesn't feel cold, though. Good weather for flying kites, if you have strong arms.

Elsewhere in the world:

• The right wing of the US Supreme Court has finally found a firearms restriction that they can't wave away with their nonsense "originalism" doctrine.
• Speaking of the loony right-wing asses on the bench, the Post has a handy guide to all of the people and organizations Justice Clarence Thomas (R) and his wife claim have no influence on them, despite millions in gifts and perks.
• NBC summarizes the dumpster fire that was the XPOTUS and his family lying testifying in the former's fraud sentencing hearings.
• Alexandra Petri jokes that "having rights is still bewilderingly popular:" "Tuesday’s election results suggest that the Republican legislative strategy of 'taking people’s rights away for no clear reason' was not an overwhelming success at the ballot box."
• Earth had the warmest October on record, setting us up for the warmest year in about 120,000 years.
• Could the waste heat from parking garages actually heat homes?
• John Scalzi has a new film review column for Uncanny Magazine, with his first entry praising the storytelling of the Wachowski's 2008 Speed Racer adaptation.

Finally, Citylab lays out the history of San Francisco's Ferry Terminal Building, which opened 125 years ago. I always try to stop there when I visit the city, as I plan to do early next month.