Monday, May 18, 2009

It Is Time To Draw The Line And Fight For That Which Is Simply Right!

It Is Time To Draw The Line And Fight For That Which Is Simply Right!


“If Ever A Time Should Come, When Vain And Aspiring Men Shall Possess The Highest Seats In Government, Our Country Will Stand In Need Of Its Experienced Patriots To Prevent Its Ruin.”

- Samuel Adams, 1780-

We Are Half Way To Concord!

The Debate Over Supreme Court Term Limits

Posted by Tyler Grove on 5/18/09 • Categorized as Law

Editor’s Note:  This is the first installment of a two part series by Tyler Grove.


As President Obama prepares to select a nominee to replace retiring Justice Souter, Americans eagerly speculate who is on his short list and what characteristics he should be considering in potential nominees. After all, a nominee has the possibility of serving for decades on the Court, thereby allowing the president to indirectly influence legal policy well past his administration.

With five of the nine justices currently age 70 or older (not including Souter, who is 69), the Obama Administration faces the possibility of filling a substantial number of seats on the Court. This situation raises the question: should we continue to allow Supreme Court justices lifetime appointments? A growing number of legal scholars are beginning to question whether the current life tenure granted to justices is the correct policy. Judge Richard Posner, for example, has called life tenure in the federal judiciary “a formula for abuse. Basically, it eliminates any penalty for shirking; the salary structure of federal judges…eliminates the carrot along with the stick.” A majority of Americans, furthermore, support a mandatory retirement age for Supreme Court justices.

This article is presented in two parts. Part One examines the problems created by the life tenure system, and presents the two dominant approaches to limiting the tenure of the justices. Part Two addresses the counterarguments of opponents to reforming the life tenure system.


Why Age Matters

The recent announcement of Justice Souter’s retirement in June has brought endless speculation into the characteristics President Obama is looking for in a replacement. The media is saturated over the merits of bringing greater diversity and increasing the number of women on the court.

One consideration that has not received much attention, however, is that of age. President Obama may take a cue from his Republican predecessors and choose a young nominee who could remain on the Court for several decades. The average age of Supreme Court nominees since the 1970s is 53. However, the average age for the past five Republican nominees is 50 years old, while the last five Democratic nominees averages out to 55 ½. With nominees from both parties retiring around an average age of 79, the difference of 5 ½ years results into a greater turnover of Democratic nominees. There is almost certainly pressure on President Obama to tap a nominee with potential to remain on the Court well after his administration.

In addition to being younger, justices have been staying on the Court longer than ever before as well. According to Northwestern Law Professors Steven G. Calabresi and James Lindgren, justices on the court between 1791 and 1970 served an average of 15 years with vacancies occurring about every 2 years. Since 1970, modern justices have served more than 26 years, stretching out the time between vacancies to 3 years. While most agree that justices are staying on the Court longer, not everyone agrees with Calabresi and Lindgren that the changes dramatically affect the Court.

Choosing a young nominee has several advantages for a president. First, a young nominee will not have an extensive voting record that can be used to damn him or her during the confirmation process. This lack of a record, of course, necessarily means less judicial experience. Second, a young nominee gives the President the opportunity to continue to influence policy well after his administration. The result is that modern presidents have a major incentive to appoint younger, less experienced judges than they might otherwise appoint and justices are stretching out their tenure longer than ever before.


Limiting the Tenure of Justices

Article III of the Constitution provides that federal judges have life tenure “during good behavior.” The meaning of “good behavior” is unclear because only seven federal judges have ever been impeached. The current understanding of the phrase is that federal judges may be removed involuntarily through impeachment and conviction. Only one Supreme Court justice has ever been impeached, but was acquitted in the Senate, meaning that impeachment is rarely evoked threat to sitting justices.

One suggested theory for limiting tenure would be for Congress to give justices who have served a full term “senior status,” the same as aging federal judges now have. The reasoning is that, while the Constitution mandates the Court’s existence in Article III, the Constitution arguably is open to Congress addressing how the Court operates. The problem with this legislative theory is that it possibly violates the separation of powers doctrine. Furthermore, any litigation would ultimately be decided by the Supreme Court itself, the very body whose power would be limited by the legislation. The most successful approach to limiting the terms of the justices would be through Constitutional Amendment. If ratified, such an amendment could not be invalidated by the Court on judicial review, only interpreted.

Regardless of the mode of limiting tenure, there are two main approaches: (1) mandating a retirement age and (2) limiting the tenure of justices to a fixed term. The first approach would stipulate that justices retire before reaching a certain age. This approach would mandate that justices retire before reaching a predetermined age. This is the model followed by a majority of states, which have some form of mandatory retirement age for state judges. The mandatory retirement age approach is less controversial than limiting the tenure of justices to a certain number of years because it directly addresses the characteristics of old age that may impede the Court from fully serving justice. Indeed, several accounts have reported the justices struggling to stay awake on the bench, and University of Cambridge Professor David J. Garrow contends that several modern justices have suffered from senility. The downside to this approach is that it would not address the incentive presidents have currently to pick younger nominees who can maximize the president’s indirect influence on the Court.

The second approach would assign a fixed term limit for justices. Most proposals suggest 18 years, which is longer than the historic average term of 15 years for justices between 1789 and 1970, but shorter than the average 26 years justices have served since 1970. The terms of each justice would be equally staggered, ensuring that presidential term would see the appointment of two new justices. This method would also avoid the inequitable distribution of presidential nominations that exist in the current system. For example, George H.W. Bush appointed two justices during his four years in the Oval Office, whereas Presidents Clinton and George W. Bush, who served for eight years apiece, appointed only two justices each, and Jimmy Carter appointed none during his four years as President. Proponents of this approach say that it is more democratic because it makes the consequences of elections more concrete. It would also avoid the strategic timing of retirements, where a group of justices might retire within a few years of each other under a president with whom they agree ideologically.



Under the current life tenure system, presidents have incentive to pick young, inexperienced nominees to maximize their influence in the Court well after their administration. Furthermore, justices have no incentive to retire, even when the effects of aging begin to negatively affect their performance on the bench. The first proposed approach, that of a mandatory retirement age, addresses the effect of aging justices on the bench, but still gives presidents incentive to pick young nominees. The second approach, that of staggered 18-year terms, equitably spreads the distribution of nominations among presidential administrations and maintains a flow of new influence into the bench.

Of course, not every scholar shares the opinion that the justices should be limited in the duration of their service on the Court. Part Two of this article will address the counterarguments of opponents to reform of the life tenure system.

Please contribute to the discussion in the comments.

Tyler Grove is a graduate of Cornell, a law student at George Washington Univesity, and a contributer to The Pulse Review, a journal of public policy, law, and national security.


 Emptywheel » WaPo's Partisan Press Release Service

By emptywheel 
Nancy “Impeachment is Off the Table” Pelosi is not my favorite person, but come on. The CIA is an intelligence agency- they're professional liars. We're to believe them? And Boehner is a bonehead- how is Nancy supposed to “prove” ...
Firedoglake -

Fox News: Focus On Pelosi Changes Subject From Whether To Prosecute Bush Officials

Check out this surprisingly candid moment on Fox, where a top network correspondent says that the GOP’s attack on Nancy Pelosi over what she knew about torture is a winner for the GOP because it changes the subject from whether Bush officials should be prosecuted:

The Fox correspondent, Jonathan Hunt, says the Pelosi focus is a distraction from a real debate about torture:

“Instead of this debate being about national security, what is and isn’t torture, what the Bush administration should and shouldn’t have allowed and whether anybody in that administration should now be prosecuted, the Republicans are now able to frame this debate as to whether Nancy Pelosi is fit to continue as Speaker. So they are not about to let their foot off the gas in any way, shape, or form.”

This mirrors what many Republicans, excited about the way this one is going, are saying privately. It’s also interesting that this level of candor is only likely to fire up the GOP base, which is hungry for a display of GOP aggressiveness and a win at all costs.

One other point: In an odd twist, you’d be unlikely to find such brazen GOP honesty about the motives at play here on any other major network.



 Dick Cheney, Patron Saint of Torture-Free

by: Steve Weissman, t r u t h o u t | Perspective

    "Hitler gave anti-Semitism a bad name," as many high-born Europeans used to say, yearning for the good old days when all right-thinking people could disparage Jews in public. Former Vice President Dick Cheney is similarly giving torture an odious reputation, all in his zeal to prove himself the rightest thinking guy in America. By the time he's finished with his mouthy defense of "Enhanced Interrogation Techniques," no one with any sense will want to have anything to do with them, at least not where others can see or hear.

    Cheney's signature success with torture came when the CIA sent al-Qaeda operative Ibn al-Shayk al-Libi to Egypt, where he "confessed" that Saddam Hussein had trained al-Qaeda in chemical weapons. Al-Libi's statement, extracted under torture, was the smoking gun that Cheney, Condoleezza Rice, Donald Rumsfeld, and Colin Powell all used to sell their pre-emptive invasion of Iraq. So, don't tell Cheney that "Enhanced Interrogation Techniques" do not work. They damned sure do if your goal is to get the propaganda you want to go to war.

    Few in Congress or the mass media have pushed Cheney on this "great success." Fewer still have seen that that Bush and Cheney's illegal use of torture to sell their pre-emptive war in Iraq was probably their single greatest crime. Why the reluctance? Why do so many Americans refuse to see the obvious?

    In large part because Congress, the corporate media, and even the general public were to some degree complicit in the crime. Whatever the CIA told Congressional leaders about waterboarding, sensory and sleep deprivation, stress positions, or sending captives to other counties for interrogation, only the mentally challenged had any excuse for not knowing from the public record at the time the rough outlines of how far Bush and Cheney had stepped beyond the law.

    As early as February 2002, the Bush administration publicly announced that it would not abide by the Geneva Conventions on the treatment of enemy captives. Dick Cheney spoke openly of going to "work the dark side." Donald Rumsfeld and others talked of "taking off the gloves" with detainees like John Walker Lindh, the so-called American Taliban and the first known victim of the administration's turn toward torture.

    President Bush even used his State of the Union address in January 2003 to let everyone in on the game. "All told, more than 3,000 suspected terrorists have been arrested in many countries," he said. "And many others have met a different fate. Let's put it this way: They are no longer a problem to the United States and our friends and allies."

    In these and dozens of similar boasts, Bush, Cheney, Rumsfeld and the others proudly told the world what they were doing. And, very much like the Good Germans of an earlier time, Congress and the media went along, as did most of the American public. Even worse, almost no one questioned the validity of all the so-called intelligence that the administration's methods produced.

    "We clearly know that there were in the past and have been contacts between senior Iraqi officials and members of al-Qaeda going back for actually quite a long time," National Security Advisor Condoleezza Rice told PBS' Jim Lehrer on September 25, 2002. "We know too that several of the [al-Qaeda] detainees, in particular some high-ranking detainees, have said that Iraq provided some training to al-Qaeda in chemical weapons development."

    "We've learned that Iraq has trained al-Qaeda members in bomb making and poisons and gases," President Bush told an audience in Cincinnati on October 7, 2002.

    Saddam Hussein's regime "aids and protects terrorists, including members of al-Qaeda," Vice President Cheney told an audience in Arlington, Virginia, on January 30, 2003. "He could decide secretly to provide weapons of mass destruction to terrorists for use against us."

    "I can trace the story of a senior terrorist operative telling how Iraq provided training in these [chemical and biological] weapons to al-Qaeda," Secretary of State Colin Powell told the United Nations Security Council on February 5, 2003. "Fortunately, this operative is now detained, and he has told his story."

    We now know from several sources that these selling points for invading Iraq came primarily from torturing al-Libi in Egypt. We also know from the recent report of the Senate Armed Services Committee that the Bush administration pushed the torturers from the beginning to find such a link between Iraq and al-Qaeda. That was one of the major purposes of the entire effort, as only those on the inside truly understood.

    But, even before the invasion, anyone paying attention should have been able to see that the administration's "evidence" had to be tainted the moment Mr. Bush stepped beyond the Geneva Conventions and began "working the dark side."

    Having failed to catch the crime at the time, many major media figures and members of Congress are understandably reluctant to accuse Bush and Cheney of criminal conduct and bring them to trial now. How much easier just to forget the whole sordid mess and get on with the nation's business. But, if Congress and the media do, they will fail again, as Mr. Cheney's spirited defense of torture and unlimited presidential power will come back to haunt us all in the secret memos of a new administration not so many years from now.


Ex-CIA Official: Agency Brass Lied to Congress About Interrogations

by: Jason Leopold, t r u t h o u t | Report

 "A CIA employee of two decades, McCarthy became convinced that 'CIA people had lied' in that briefing, as one of her friends said later, not only because the agency had conducted abusive interrogations but also because its policies authorized treatment that she considered cruel, inhumane or degrading."

    Last month, former CIA Director Michael Hayden and former Attorney General Michael Mukasey sharply criticized President Obama's decision to release four "torture" memos, writing in an op-ed published in The Wall Street Journal that the "disclosure of the techniques is likely to be met by faux outrage, and is perfectly packaged for media consumption."

    Buried in their column was the claim that the methods the CIA used against "high-value" detainees, such as waterboarding, beatings and stress positions "were disclosed repeatedly in more than 30 congressional briefings and hearings beginning in 2002, and open to all members of the Intelligence Committees of both Houses of Congress beginning in September 2006."

    "Any protestation of ignorance of those details, particularly by members of those committees, is pretense," the former Bush officials wrote.

    Several prominent Republicans, including Rep. John Boehner, (R- Ohio) and Rep. Pete Hoekstra (R-Michigan), the ranking Republican on the House Permanent Select Committee on Intelligence, have echoed Hayden's claims in an attempt to show Democrats were complicit because they did not protest when they were briefed about the "enhanced interrogation" program and the techniques CIA interrogators intended to use.

    "It was not necessary to release details of the enhanced interrogation techniques, because members of Congress from both parties have been fully aware of them since the program began in 2002," Hoekstra wrote in an op-ed also published in The Wall Street Journal last month. "We believed it was something that had to be done in the aftermath of the 9/11 terrorist attacks to keep our nation safe. After many long and contentious debates, Congress repeatedly approved and funded this program on a bipartisan basis in both Republican and Democratic Congresses."

    House Speaker Nancy Pelosi, who had been the ranking minority member of the House Intelligence Committee, vehemently denied that she was told the CIA planned on waterboarding detainees or intended to use other brutal techniques to try and extract information from "war on terror" prisoners.

    "My colleague [Porter Goss], the chairman of the committee, has said 'if they say that it's legal you have to know they are going to use them,'" Pelosi said last month. "Well, his experience is that he was a member of the CIA, later went on to head the CIA and maybe his experience is that if they tell you one thing they may mean something else. My experience is that they did not tell us they were using that. Flat out. And any - any contention to the contrary is simply not true.

    "They told us they had opinions from the [Justice Department's] Office of Legal Counsel that they could, but not that they were using enhanced techniques, and that if and when they were used, they would brief Congress at that time. As a member of Intelligence, I thought I was being briefed. I realized that was not true when I became ranking member."

    On Thursday, Pelosi held a news conference and accused the CIA of lying to Congress.

    The CIA "mislead us all the time," Pelosi said. "They misrepresented every step of the way, and they don't want that focus on them, so they try to turn the focus on us."

    Questions about what the Democrats knew about the CIA's torture program were raised two years ago when it was revealed that the CIA had destroyed 92 interrogation videotapes in November 2005 and that the agency had informed Democratic lawmakers about its plans.

    Following that disclosure, Representative Harman's office released a February 2003 letter she wrote to the CIA advising the agency against destroying the videotapes. The CIA declassified Harman's letter at the congresswoman's request.

    "You discussed the fact that there is videotape of [high-level al-Qaeda operative] Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry," Harman wrote. "I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency."

    Harman's letter raised concerns about the CIA's use of so-called "enhanced interrogation techniques" and questioned whether President Bush had authorized the methods. In her letter, she advised the agency against destroying the videotapes out of concern the footage CIA agents captured "would be the best proof that the written record is accurate, if such record is called into question in the future."

    Still, claims that Democrats were fully briefed on the Bush administration's torture program have been leveled as recently as last December by Vice President Dick Cheney and in books by former Bush officials such as John Yoo, the former deputy assistant attorney general at the Office of Legal Counsel (OLC), who helped draft one of the four memos released last week.

    But the veracity of those assertions have been called into question by former CIA official Mary O. McCarthy, who said senior agency officials lied to members of Congress during an intelligence briefing in 2005 when they said the agency did not violate treaties that bar, cruel, inhumane or degrading treatment of detainees during interrogations, according to a May 14, 2006, front-page story in The Washington Post.

    "A CIA employee of two decades, McCarthy became convinced that 'CIA people had lied' in that briefing, as one of her friends said later, not only because the agency had conducted abusive interrogations but also because its policies authorized treatment that she considered cruel, inhumane or degrading," The Washington Post reported.

    "In addition to CIA misrepresentations at the session last summer, McCarthy told the friends, a senior agency official failed to provide a full account of the CIA's detainee-treatment policy at a closed hearing of the House intelligence committee in February 2005, under questioning by Rep. Jane Harman (California), the senior Democrat," The Washington Post reported.

    "McCarthy also told others she was offended that the CIA's general counsel had worked to secure a secret Justice Department opinion in 2004 authorizing the agency's creation of "ghost detainees" - prisoners removed from Iraq for secret interrogations without notice to the International Committee of the Red Cross - because the Geneva Conventions prohibit such practices."

    In 2004, McCarthy was tapped by the CIA's Inspector General John Helgerson to assist him with internal investigations about the agency's interrogation methods. The report Helgerson prepared remains classified, but the ACLU filed a Freedom of Information Act lawsuit to have it released publicly.

    "McCarthy was not an ideologue, her friends say, but at some point fell into a camp of CIA officers who felt that the Bush administration's venture into Iraq had dangerously diverted US counterterrorism policy. After seeing - in e-mails, cable traffic, interview transcripts and field reports - some of the secret fruits of the Iraq intervention, McCarthy became disenchanted, three of her friends say," the Post reported.

    In May 2005, just a few months after the CIA briefed Congress on interrogation methods, Sen. Jay Rockefeller, ranking Democrat on the Senate Intelligence Committee, requested "to see over a hundred documents referred to in [Helgerson's] report on detention inside the black prison sites," New Yorker reporter Jane Mayer wrote in her book, "The Dark Side." "Among the items Rockefeller specifically sought was a legal analysis of the CIA's interrogation videotapes.

    "Rockefeller wanted to know if the intelligence agency's top lawyer believed that the waterboarding of [alleged al-Qaeda operative Abu] Zubaydah and [alleged 9/11 mastermind] Khalid Sheikh Mohammed, as captured on the secret videotapes, was entirely legal. The CIA refused to provide the requested documents to Rockefeller.

    "But the Democratic senator's mention of the videotapes undoubtedly sent a shiver through the Agency, as did a second request he made for these documents to [former CIA Director Porter] Goss in September 2005."

    The May 2005, request from Rockefeller took place during the same month that Steven Bradbury, the former head of the OLC, wrote three legal opinions reinstating the torture techniques his predecessor, Jack Goldsmith, had withdrawn.

    Bradbury's memos, released last Thursday, included several footnotes to Helgerson's report, one of which stated that the CIA used waterboarding "with far greater frequency than initially indicated" and used "large volumes of water" as opposed to the smaller amount the CIA said it intended to use. In fact, Bradbury's memos, while authorizing brutal techniques, also disputed the conclusions of Helgerson's still classified report that the interrogation techniques violated the Convention Against Torture.

    According to a November 9, 2005, story in The New York Times published the same month, 92 interrogation videotapes were destroyed. Helgerson's report "raised concern about whether the use of the techniques could expose agency officers to legal liability."

    "They said the report expressed skepticism about the Bush administration view that any ban on cruel, inhumane and degrading treatment under the treaty does not apply to CIA interrogations because they take place overseas on people who are not citizens of the United States," the Times reported. "The officials who described the report said it discussed particular techniques used by the CIA against particular prisoners, including about three dozen terror suspects being held by the agency in secret locations around the world."

    Mayer reported that Helgerson's report "known as a 'special review,' was tens of thousands of pages long and as thick as two Manhattan phone books. It contained information, according to one source, that was simply 'sickening.'"

    "The behavior it described, another knowledgeable source said, raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, one of whom seemed to have become frighteningly dehumanized. The source said, 'You couldn't read the documents without wondering, 'Why didn't someone say, "Stop!'""

    Mayer wrote that Vice President Dick Cheney stopped Helgerson from fully completing his investigation. That proves, Mayer contends, that as early as 2004 "the Vice President's office was fully aware that there were allegations of serious wrongdoing in The [interrogation] Program."

    "Helgerson was summoned repeatedly to meet privately with Vice President Cheney" before his investigation was "stopped in its tracks." Mayer said that Cheney's interaction with Helgerson was "highly unusual."

    As a result, McCarthy "worried that neither Helgerson nor the [CIA's] Congressional overseers would fully examine what happened or why," according to the Post report.

    McCarthy told a friend, according to the Post's account, "She had the impression that this stuff has been pretty well buried. In McCarthy's view and that of many colleagues, friends say, torture was not only wrong but also misguided, because it rarely produced useful results."

    In April 2006, ten days before she was due to retire, McCarthy was fired from the CIA for allegedly leaking classified information to the media, a CIA spokeswoman told reporters at the time.

    In October 2007, Hayden ordered an investigation into Helgerson's office, focusing on internal complaints that the inspector general was on "a crusade against those who have participated in controversial detention programs."

    The CIA said McCarthy had spoken with numerous journalists, including The Washington Post's Dana Priest, who, in November 2005, exposed the CIA's secret prison sites, where, in 2002, the CIA videotaped its agents interrogating a so-called high-level detainee, Abu Zubaydah.

    Following news reports of her dismissal from the CIA, McCarthy, through her attorney Ty Cobb, vehemently denied leaking classified information to the media. McCarthy, who is now in private practice as an attorney, did not return calls for comment.

    The CIA said she failed a polygraph test after the agency launched an internal investigation in late 2005. The agency said the investigation was an attempt to find out who provided The Washington Post and The New York Times with information about its covert activities, including domestic surveillance, and it promptly fired her.

    After Hayden launched an investigation into Helgerson's work, The Washington Post reported, citing unnamed sources, that in 2002, Pelosi, Sen. Bob Graham (D-Florida), Rep. Jane Harman (D-California), and a handful of Republican lawmakers, were "given a virtual tour of the CIA's overseas detention sites and the harsh techniques interrogators had devised to try to make the prisoners talk."

    "Among the techniques described [to the lawmakers], said two officials present, was water-boarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill," the Post reported. "But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two US officials said."

    The Post story also made identical claims that Hayden and Mukasey leveled in their Wall Street Journal column: that Pelosi and other Democratic leaders were privately briefed at least 30 times. Those briefings, according to the Post, "included descriptions of [waterboarding] and other harsh interrogations methods."

    But Graham disputed claims that he and other members of Congress were briefed about the interrogation program.

    "Speaking for myself as chairman of the Senate Intelligence Committee from mid-2001 to the end of 2002, I was not briefed on these interrogation techniques," Graham told National Public Radio on Thursday . "[I] am frankly very frustrated that there are these allegations made that everybody knew about it. I think the policy of the Bush administration was to try to bring as many people into the net when they were going to engage in some questionable activity in order to give them cover. In this case, I was not in the net."

    A declassified narrative released on Wednesday by the Senate Select Committee on Intelligence said, about the politics of the Bush administration's torture program, Intelligence Committee chairs in both Houses were briefed about the interrogation program in 2002 and 2003. What they were told, however, remains a mystery.

    In an interview with Newsweek last month, Sen. Dianne Feinstein, who now chairs the Senate Intelligence Committee and has launched a "review" and "study" of the CIA's interrogation methods, said, "I now know we were not fully and completely briefed on the CIA program."

    Feinstein was reacting to a secret report by the International Committee of the Red Cross that was leaked, which described, in shocking detail, the techniques used to interrogate 14 "high-value" detainees.

    Interestingly, the magazine quoted an unnamed "US Official" who disputed the charge, and claimed, in language nearly identical to what Hayden wrote in The Wall Street Journal and what was leaked to The Washington Post, "that members of Congress received more than 30 briefings over the life of the CIA program and that Congressional intel panels had seen the Red Cross report."

    Whether that unnamed official was Hayden is unknown. A representative for the former CIA chief did not return calls for comment.


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