Thursday, August 13, 2009

Georgetown Security Law Brief: Gonzales Says Probe Could Harm CIA's Efforts

Georgetown Security Law Brief: Gonzales Says Probe Could Harm CIA's Efforts

Gonzales Says Probe Could Harm CIA's Efforts

08/12/09: The Washington Times reports that former US Attorney General Alberto Gonzales said Tuesday that any criminal investigation into whether CIA interrogations after 9/11 crossed legal lines could have a chilling effect on US anti-terrorism efforts. In an interview with The Associated Press, Gonzales said if the Justice Department launches an investigation it "could discourage" CIA operatives from "engaging in conduct that even comes close" to department guidelines.

08/09/09: The LA Times reports that US Attorney General Eric Holder Jr. is poised to appoint a criminal prosecutor to investigate alleged CIA abuses committed during the interrogation of terrorism suspects. A senior Justice Department official said that Holder envisioned an inquiry that would be narrow in scope, focusing on "whether people went beyond the techniques that were authorized" in Bush administration memos that liberally interpreted anti-torture laws.

07/17/09: The New York Times has an editorial arguing that President Obama should change his mind about his refusal to open a full investigation of the many laws that were evaded, twisted or broken — pointlessly and destructively — under Mr. Bush. A full accounting is the only way to ensure these abuses never happen again.

07/14/09: ABC News reports that some of the Central Intelligence Agency's interrogators now facing potential criminal prosecution for how they interrogated alleged terrorists have already been disciplined by the CIA.

07/12/09: Newsweek reports that despite pressure from the White House to "look forward, not backwards" with regard to Bush-era interrogation tactics, Holder has reportedly requested a list of ten candidates, five from within the Department of Justice and five from outside the agency, possibly to serve as a special prosecutor to investigate alleged of torture during the Bush administration. HT to Jurist.

06/17/09: The BLT reports that a Justice Department watchdog is modifying its report on the lawyers who wrote opinions authorizing harsh interrogation tactics, and the report from the Office of Professional Responsibility is still weeks away from becoming public.

06/03/09: CNN reports that retired Lt. Gen. Ricardo Sanchez, the former commander of U.S. forces in Iraq who retired over the Abu Ghraib prison scandal, is calling for a truth commission to investigate Bush-era policies behind the abuse and controversial interrogations of detainees. The Iraq war, he said, was plagued by "institutional and individual failures" -- both in the execution of the conflict and the interrogation tactics, and in the policies from Washington that were implemented in the field.

05/11/09: The San Francisco Chronicle has an article outlining the political and policy issues with different versions of a torture investigation. The article discusses whether there should be an investigation at all. Public opinion is divided on the issue, and Obama is eager to leave it behind; however, some legal experts say Obama does not have the option of turning the page on the Bush policies, as the Constitution requires a president to "faithfully execute" the laws of the land, and that means not ignoring a practice he himself has defined as torture. The article then compares the different proposals for an investigation, including congressional review, truth commission, special prosecutor, disbarment/impeachment/firing, and criminal charges.

05/11/09: Opinio Juris argues that since criminal prosecution in the US is unlikely, impeachment of Bybee is unlikely, and a misconduct complaint against Yoo may not be possible, lustration may be worth considering. Lustration refers to a transitional-justice process in which individuals involved in government misconduct are legislatively prohibited from holding certain governmental and non-governmental posts for a specified amount of time.

05/07/09: The Washington Post features an opinion piece by John Bolton in which he argues that, "President Obama's passivity before the threatened foreign prosecution of Bush administration officials achieves by inaction what he fears doing directly. This may be smart politics within the Democratic Party, but it risks grave long-term damage to the United States. Ironically, it could also come back to bite future Obama administration alumni, including the president, for their current policies in Iraq, Afghanistan and elsewhere."

05/06/09: The New York Times reports that an internal Justice Department inquiry has concluded that Bush administration lawyers committed serious lapses of judgment in writing secret memorandums authorizing brutal interrogations but that they should not be prosecuted, according to government officials briefed on its findings.

05/06/09: The Washington Post reports that former Bush administration officials have launched a behind-the-scenes campaign to urge Justice Department leaders to soften an ethics report criticizing lawyers who blessed harsh detainee interrogation tactics, according to two sources familiar with the efforts.

05/06/09: CNN reports that a national poll indicates that most Americans don't want to see an investigation of Bush administration officials who authorized harsh interrogation techniques on suspected terrorists, even though most people think such procedures were forms of torture. Half the public approves of the Bush administration's decision to use those techniques during the questioning of suspected terrorists, with 50 percent in approval and 46 percent opposed.

05/01/09: Today offers a large number of op-eds on the subject of torture. Those calling for an investigation include Lance Dickie at the Seattle Times, Oren Gross at CNN, and Michael Kinsley at the Washington Post. Those against an investigation include Charles Krauthammer at the Washington Post, Reuel Marc Gerecht at the Weekly Standard, and a former CIA official on Fox News.

05/01/09: The Wall Street Journal has an op-ed by Richard Haass arguing that prosecution of Justice Department officials would have a chilling effect on future U.S. government officials. Few would be brave or foolhardy enough to put forward daring proposals that one day could be judged illegal. With the threat of prosecution, serious memos on controversial matters will increasingly become the exception rather than the rule. Prosecution would also set a terrible precedent for partisan retribution. A truth and reconciliation process to examine alleged torture in today's highly politicized climate would likely produce little in the way of truth and even less in the way of reconciliation. The Knoxville News also carries an editorial to this effect.

04/29/09: Jurist reports that members of the House Judiciary Committee sent a letter yesterday to Attorney General Eric Holder urging him to appoint a special counsel to investigate allegations of torture against Bush administration officials. The letter, which was signed by committee chairman John Conyers (D-MI), Rep. Jerrold Nadler (D-NY), and 14 other Democratic members of the committee, called on Holder to prosecute responsible officials where appropriate. No Republican committee members signed the letter; the DOJ said that the letter will be reviewed.

04/28/09: The Wall Street Journal has an opinion piece arguing that those who advocate for a truth commission, including Senator Leahy and Representatives Pelosi and Conyers, have overlooked that under the Constitution, Congress itself is supposed to be the truth commission. The Founders established institutions and arrangements that would hold those who have power accountable to the American people.

04/27/09: CNN reports that Senator Leahy has again called for an independent commission to investigate abusive CIA interrogation techniques."I want to know who was it who made the decisions that we will violate our own laws; we'll violate our own treaties; we will even violate our own Constitution," Sen. Leahy told CBS' Face the Nation. Leahy first proposed the idea of a nonpartisan "commission of inquiry" in March. He said Sunday that he was not "out for some kind of vengeance," but added, "I'd like to read the page before we turn it."

04/23/09: The New York Times reports that the release of four Bush administration memorandums approving the use of harsh interrogation techniques has increased momentum for an investigation into the architects of the program, but the prospect of indicting any of them remains unlikely. Steep legal and political hurdles remain to criminal prosecutions of the high-level policy makers, and even lesser punishments — like disbarment of the lawyers who signed off on the program — are supported by few precedents, legal specialists say.

04/23/09: The Boston Globe features an opinion piece which argues against prosecuting the authors of the torture memos saying, "' 'Hard cases make bad law.' So goes the hoary aphorism taught to generations of law students and invoked by lawyers and judges tempted to do what the heart implores but the rational mind warns - or should warn - against. The debate on whether to prosecute intelligence agents who inflicted what civilized citizens reasonably deem 'torture,' but what Department of Justice legal memoranda advised was nonetheless lawful, exemplifies the occasional 'hard case.' "

04/23/09 The Washington Post reports that the legacy of George W. Bush continued to dog President Obama and his administration yesterday, as Congress divided over creating a panel to investigate the harsh interrogation techniques employed under Bush's authorization and the White House tried to contain the controversy over the president's decision to release Justice Department memos justifying and outlining those procedures.

04/23/09: The Wall Street Journal features an opinion piece in which that by inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret. Bipartisanship in Washington will not recover for some time.

04/13/09: Shane Harris in the National Journal online asks whether or not a truth commission should be created to examine allegations of torture in US government detention, rendition, and interrogation programs used for suspected terrorists.

04/11/09: Naval War College professor MacKubin Thomas Owens argues in the Wall Street Journal that those who accuse the Bush administration of torture and seek to investigate its alleged misdeeds forget that the administration's actions were the legitimate operations of a government at war with "common enemies of mankind," who are distinct from legitimate enemies in a war, and ought to be treated differently.

04/11/09: The San Francisco Chronicle editorial board argues that the Obama administration should do more to address the US's legacy of torture under the Bush administration. It is a good political move in the present to avoid prosecuting government employees who allegedly participated in torture, the Chronicle argues, but the issue is too significant to sidestep.

04/07/09: Jurist reports that House Judiciary chairman John Conyers released the final copy of a report which calls for the appointment of a special prosecutor to investigate whether the Bush administration violated any criminal laws in its conduct of the war on terror.

04/02/09: Think Progress reports that last night on MSNBC former Secretary of State Colin Powell refused to acknowledge his role in these meetings, and claimed ignorance about long-released legal memos that specifically authorized torture. Choosing his words carefully, he would say only that, "at least from the State Department standpoint," it was important to stand by the Geneva Conventions.

03/25/09: posts an interview with the President of the Center for Constitutional Rights, Michael Ratner, who argues that John Yoo's so-called "Torture Memo" amounts to treason, saying "These memos lay the groundwork for a massive military takeover of the United States in cahoots with the president. And if that's not a coup d'etat then, nothing is."

03/24/09: A Washington Post opinion article discusses the need for a nonpartisan commission to investigate the post-September 11th policies and actions regarding the detention, treatment and transfer of security detainees. The mandate of this commission would not be to conduct a criminal investigation; that is the job of our criminal justice system. The article concludes that this commission would serve the vital purpose of presenting a full picture of policies and actions that followed the 2001 terrorist attacks.

03/18/09: The ACLU has sent a letter to Attorney General Holder asking him to appoint an independent prosecutor to investigate torture of detainees during the Bush Administration.

03/18/09: Balkinization features an essay by Brian Tamanaha in which he argues that if the U.S. truly respects the rule of law, then it must pursue criminal investigations against members of the Bush administration. He writes, "Nixon's Watergate, Reagan's Iran-Contra, and Clinton's perjury, were all criminally investigated for this reason. The only discernible difference here is that the illegal conduct at the highest levels of government, if proven true, might be worse in degree and extent than other recent examples. But that is an affirmative reason to investigate, not a reason to take a pass."

03/09/09: The New York Times reports on the experience of John Yoo and other former Bush administration lawyers who advised the President on his wartime powers since leaving the administration as the legal, lawmaking, and policy communities struggle to define how to deal with the legacy of the legal advice Bush's lawyers provided during his administration.

03/07/09: John Yoo has an op-ed in the Wall Street Journal that argues the latest assault on Bush anti-terror strategy could make us less safe. But if the Obama administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today's intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future.

03/05/09: Salon urges that any commission to investigate torture under the Bush Administration should not include any current members of Congress, and should investigate torture, but avoid other abuses such as warrantless wire-tapping.

03/05/09: The New York Times reports that Senator Patrick Leahy, Democrat of Vermont, used a hearing of the Judiciary Committee to press his idea that Congress should create a “truth commission” to explore and expose the Bush administration’s policies on detention and interrogation. An Op-Ed in the LA Times supports the commission idea.

03/04/09: The New York Times reports that the Obama administration faced new pressure to support a broad inquiry into interrogation, detention, surveillance and other practices under President Bush after releasing a set of Bush administration opinions that claimed sweeping presidential powers in fighting terrorism. The Senate Judiciary Committee has scheduled a hearing on Wednesday on whether to create a commission to look into the Bush administration’s counterterrorism policy.

03/02/09: The New York Times is hosting a discussion about the merits of Senator Leahy's proposed truth commission. Contributors include David Cole from Georgetown University Law Center, Kenneth Anderson from the Hoover Institution, Michael Ratner from the Center for Constitutional Rights, Margaret Satterthwaite from NYU School of Law, and Jenny S. Martinez from Stanford Law School.

02/27/09: Jurist reports that Senate Judiciary Chairman Patrick J. Leahy (D-VT) announced Wednesday that his committee is prepared to begin hearings that would explore the possibility of creating a truth and reconciliation commission charged with investigating the national security policies of the Bush administration.

02/22/09: The New York Times features an opinion piece exploring the worth and potential shape of an investigatory commission into the controversial counterterrorism programs of the Bush administration. The piece examines four different models that could be used: a criminal investigation as in Iran-Contra, a Congressional investigation as in the Church Commission, a blue-ribbon panel as in the 9/11 Commission, or doing nothing.

02/21/09: The Washington Independent reports that when Sen. Patrick Leahy (D-Vt.) last week told an audience at Georgetown University that Congress should convene a “Truth Commission” to investigate allegations of Bush administration wrongdoing, his remarks set off a firestorm. Republicans shot down the notion while some Democrats lamented that it didn't go far enough. Some legal experts went so far as to say that the US has international treaty obligations which require investigations and prosecutions and that these legal duties would not be satisfied by a mere commission.

02/17/09: The New York Times reports that the Justice Department’s ethics office is in the final stages of a report that sharply criticizes Bush administration lawyers who wrote legal opinions justifying waterboarding and other harsh interrogation methods, according to department and Congressional officials. The report, by H. Marshall Jarrett, who leads the department’s Office of Professional Responsibility, would be the first accounting for legal advice that endorsed interrogation techniques historically considered by the United States and other Western countries to be illegal torture.

02/16/09: Salon features an opinion piece by Glenn Greenwald in which he argues against granting blanket immunity to US government officials who participated in controversial counterterrorism programs because of the obligations and promises the US has made by way of international treaties such as the Convention Against Torture. He argues that, "issuing preemptive pardons to government torturers would be an unambiguous and blatant violation of our obligations under the Convention."

02/14/09: The New York Times features an opinion piece by Tobin Harshaw in which he writes that while President Obama has made it pretty clear he’d like to move on, the idea of prosecuting members of the Bush administration for its counterterrorism programs and other alleged misdeeds refuses to die. Harshaw goes on to set out all of the different ideas currently on the table but then starts to speculate as to why the Justice Department still invoked state secrets as a reason to dismiss a suit against a division of Boeing accused of being complicit with the US government in a rendition.

02/12/09: USA Today published a new poll finding that a majority of those polled favor investigating whether the Bush administration tactics in the war on terror broke the law. Close to two-thirds of those surveyed said there should be investigations into allegations that the Bush team used torture to interrogate terrorism suspects and its program of wiretapping U.S. citizens without getting warrants.

02/09/09: Senator Leahy proposed a truth commission to address the actions of the Bush administration in an address at Georgetown University today. The entire text of Senator Leahy's address can be found here. C-SPAN has posted a video of the address-- including questions and answers-- here.

02/03/09: The Boston Globe reports that while many viewed President Obama's inauguration as a fresh start for the country, a large number on the political left - among some of Obama's most ardent supporters - want to hold George W. Bush accountable for what they believe were illegal activities in office. While Obama has tried to discourage talk of such a politically explosive investigation, the issue surfaced during the confirmation hearings for Attorney General Eric Holder.

01/31/09: University of Washington law professor Eric Schnapper argues in the Seattle Post Intelligencer that if the legal system does not provide redress for abuses of power by Bush administration officials, that is a defect to be corrected by the Obama administration, not a loophole to be exploited.

01/29/09: Nicholas Kristof argues in the New York Times and International Herald Tribune that the Obama administration should appoint a blue ribbon panel of conservatives to investigate the torture policies and practices of the Bush administration, and following the release of the commission's findings, either give Guantanamo to the Cuban government, or revise the base's mission to focus on tropical disease research or some other humanitarian end.

01/27/09: Richard Cohen argues in the Washington Post that either Congress or the President should follow Georgetown University Law Center Professor David Cole's suggestion and appoint a blue ribbon panel with subpoena power to investigate the Bush administration's interrogation policies and practices.

01/20/09: Opinio Juris features a pieces by Kevin Jon Heller which examines a lively debate going on in the blogosphere about the legal impact of Eric Holder’s statement that waterboarding is torture and Susan Crawford’s conclusion that Mohammed al-Qahatani was tortured while in custody at Guantanamo Bay. Does Holder’s statement and Crawford’s conclusion require the US to prosecute the interrogators who used waterboarding and the Bush administration officials who approved its use? Glenn Greenwald believes that they do, as do Dahlia Lithwick and Philippe Sands, writing together. Eric Posner, by contrast, insists that they do not. I firmly believe that anyone involved in waterboarding should be criminally prosecuted. That said, I think Posner has the better of the legal argument.

01/14/09: Jurist reports that House Judiciary Committee Chairman John Conyers, Jr. called for a probe into the Bush administration’s numerous abuses and requested that the incoming Obama administration should launch a criminal investigation to find out whether any laws were violated. The 437 page report on the subject is available here.

01/11/09: Opinio Juris discusses the bill introduced this week by Rep. John Conyers for a National Commission on Presidential War Powers and Civil Liberties. The writer argues that the bill seems a little less like a truth and reconciliation commission than a “truth and clean-up commission.”

01/11/09: The New York Times has a trio of opinions discussing how to deal with the legal legacy of the Bush administration's policies in the war on terror. Professor Charles Fried argues that the urge for criminal prosecutions to punish those reponsible for wrongdoings should be resisted. Legal writer Dahlia Lithwick maintains that those responsible for flouting the rule of law should be prosecuted. Professor Jack Balkin writes that truth commissions are preferable to criminal prosecution.

01/06/09: The Wall Street Journal has an opinion piece concluding that any attempts to prosecute Bush administration officials for its terror interrogation policies would be ill-advised and implicate members of Congress. Nancy Pelosi and other key Democrats (as well as Republicans) on the House and Senate Intelligence Committees, were thoroughly, and repeatedly, briefed on the CIA's covert antiterror interrogation programs. The piece concludes that if Congress now decide the tactics they heard about then amount to abuse, then by their own logic they themselves are complicit.

01/05/09: The New York Review of Books has a review by David Cole discussing Torture Team: Rumsfeld's Memo and the Betrayal of American Values by Philippe Sands, The Trial of Donald Rumsfeld; A Prosecution by Book by Michael Ratner, Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond by Jameel Jaffer and Amrit Singh.

12/31/08: A Washington Post opinion article discusses the increased calls for criminal trials of Bush administration officials and the report released by the Senate Armed Services Committee that concluded that Donald Rumsfeld’s authorization of aggressive interrogation techniques was a “direct cause of detainee abuse at Guantanamo.” The article enumerates reasons why criminal trials would be ineffective and concludes that there are other measures better suited to address the charges.

12/28/08: A Los Angeles Times opinion articles addresses whether Bush administration officials should be held criminally liable for its lawlessness, including waterboarding terrorist suspects and wiretapping Americans without a court order. The article concludes that although it is critical of the Bush administration's flouting of international and domestic law, it is wary of criminal prosecution of administration officials.

12/26/08: Morton Kondracke, writing for the Washington Times, states that for the sake of national security and national unity, President-elect Barack Obama should put a stop to efforts to investigate or prosecute Bush administration officials for anti-terror "war crimes." Kondracke concludes that such calls for prosecution are purely politically motivated.

12/24/08: The L.A. Times opines that Bush administration officials should not be held criminally liable for actions committed while in office, though the numerous recently completed and ongoing investigations into administration policies and actions is warranted.

12/22/08: Middle East Online discusses whether Bush and other top administration official should be investigated for war crimes, concluding that such investigations are unavoidable.

12/18/08: The New York Times features an opinion piece which writes that a bipartisan report by the Senate Armed Services Committee has made what amounts to a strong case for bringing criminal charges against former Defense Secretary Donald Rumsfeld; his legal counsel, William J. Haynes; and potentially other top officials, including the former White House counsel Alberto Gonzales and David Addington, Vice President Dick Cheney’s former chief of staff. The report shows how actions by these men “led directly” to what happened at Abu Ghraib, in Afghanistan, in Guantánamo Bay, Cuba, and in secret CIA prisons.

12/17/08: Slate features a piece in which Milan Markovic argues that it is legitimate to investigate John Yoo and other lawyers who may have approved war crimes. He writes, "If soldiers are supposed to differentiate between lawful and unlawful orders, why should lawyers, who are trained to know the law, have the privilege of never being held accountable if they advise unlawful conduct?"

12/05/08: The San Francisco Chronicle reports that Berkeley's city council will delve into national policy again next week when it votes whether to demand the United States charge Berkeley resident and former Bush adviser John Yoo with war crimes. Yoo, a tenured professor at UC Berkeley's Boalt Hall School of Law, wrote the memos offering legal justification for torture while he worked for the White House from 2001 to 2003. HT to How Appealing.

11/30/08: The Washington Post features an editorial which argues that President Bush ought to resist the urge to pardon those officials and officers who crafted the controversial policies and practices of the war on terror, including harsh interrogation methods which have drawn so much attention. The editorial notes that as the outgoing administration distorted many laws to accomplish their ends, the new administration should be left to decide the proper response.

11/26/08: The Washington Post features an editorial by Jack Goldsmith in which he argues that the Obama administration should not go forward with any new investigations into the harsh tactics used by interrogators or in military prisons as doing so would only weaken the Justice Department and the CIA. He continues to say that the probes already in progress should be let to continue, if only to appease politically, but that within the government everyone knows who advised who as to what. Goldsmith warns that the country has to be careful not to make national security lawyers too cautious and therefore too politically sensitive. An opposing opinion piece is found here in Slate magazine.

11/18/08: Jurist reports that the Obama administration is unlikely to prosecute government officials who carried out the harsh interrogation tactics under the Bush administration's anti-terrorism and counter-terrorism policies. Salon reports on the issue here, and Opinio Juris features commentary on it here.

11/17/08: The UK Telegraph reports that senior U.S. government spies who oversaw the execution of President Bush's war on terror policies are lobbying the outgoing President to pardon them before President-elect Obama assumes office. The senior spies fear that President Obama might launch a "legal witch hunt" against them for their role in carrying out the Bush administration's war on terror policies. Exploring International Law blog comments on the story here.

09/25/08: The New York Times reports that according to newly released documents, senior Bush administration officials played a central role in deliberations during the spring of 2002 about whether the CIA could employ harsh techniques to interrogate an Al Qaeda operative, Abu Zubaydah.

09/04/08: The ACLU announces an order compelling the DOJ Office of Legal Counsel (OLC) to turn over three 2005 memos that authorized the extremely harsh treatment of prisoners in CIA custody or explain by October 3 why these memos can lawfully be withheld. HT toBeSpacific.

09/04/08: The Washington Post has an op-ed discussing the administration memos released last week pertaining to interrogation practices.

08/31/08: CNN reports on a speech in which VP Cheney defends the Bush administration's record on prisoner interrogations.

08/21/08: Secrecy News discusses a letter written by Senators Leahy and Specter to White House Counsel Fred Fielding requesting ten specified legal memoranda and other OLC documents on detention and interrogation policies.

08/05/08: Secrecy News discusses a bill introduced by Sen. Feinstein and several Senate colleagues that would “end coercive interrogations and secret detentions by the Central Intelligence Agency.”

07/26/08: The New York Times has an article about a recently released CIA document requiring "detailed records of each method used, its duration and the names of everyone present" whenever a detainee was being interrogated.

07/26/08: MSNBC covers and Exploring International Law discusses the release of a secret DOJ memo assuring the CIA that its interrogators would be safe from prosecution for violations of anti-torture laws if they believed "in good faith" that harsh techniques used to break prisoners' will would not cause "prolonged mental harm."

07/20/08: The Washington Post and CNN have articles on former AG John Ashcroft's testimony on interrogation policy before the House Judiciary Committee.

07/15/08: The New York Times has an article discussing a forthcoming book that cites a secret Red Cross report given to the CIA characterizing their interrogation methods as torture.

07/05/08: On Thursday, John Yoo and David Addington testified in front of a House Judiciary subcommittee about their roles in developing the White House's interrogation policy. The New York Times covered it, and Intel Dump commented on the hostility of the witnesses.

06/17/08: Former DoD General Counsel William J. Haynes, II will testify before the Senate Armed Forces Committee on Tuesday regarding the role that Pentagon lawyers played in the development of harsh interrogation practices. The New York Times story is here. TheWashington Post story is here.

06/16/08: Via BeSpacific. On Tuesday, the Senate Judiciary Committee held a hearing on "Coercive Interrogation Techniques: Do They Work, Are They Reliable, and What Did the FBI Know About Them?" Testimony and Member Statements are here.

Thread: Bush administration criminal liability and/or truth commission

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