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January 07, 2005

Ask Mr. Torture Answerman

The Poor Man asks what Glenn Reynolds is thinking:

The Poor Man: See No Evil:

Can someone explain to me what this is?

I've been against torture since Alan Dershowitz was pushing it back in the fall of 2001. (Okay, actually I was against torture even before Dershowitz was pushing it). But I think the effort to turn this into an anti-Bush political issue is a serious mistake, and the most likely outcome will be, in essence, the ratification of torture (with today's hype becoming tomorrow's reality) and a political defeat for the Democrats. And the highly politicized way in which the issue is raised is likely to ensure that there's no useful discussion of exactly how, in terms of incarceration, etc., we should treat potentially very dangerous people who do not fall readily within the laws of war.

It's actually quite simple. In his great wisdom, Glenn Reynolds has decided that in the GlennReynoldsUniverse that those who think that Alberto Gonzales's endorsement of torture means that he is a fine and moral man qualified to be Attorney General are the real enemies of torture, while those who think that Alberto Gonzales's endorsement of torture means that he is not qualified to be Attorney General are the friends of and advocates for torture.

By supporting the confirmation of those who have endorsed torture, Glenn Reynolds is fighting torture. By opposing the confirmation of Alberto Gonzales, Democrats are supporting torture.

Get it?


The Poor Man goes on:

"Useful discussion". While we sit here in 2005 waiting for the right non-partisan moment to have a useful discussion about the fine definition of torture, here's the input that the JD's Office of Legal Counsel sent in response to a Gonzales request:

For the foregoing reasons, we conclude that torture as defined in and proscribed by Sections 2340-2340A, covers only extreme acts. Severe pain is generally of the kind difficult for the victim to endure. Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure. Severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm, such as seen in mental disorders like posttraumatic stress disorder. Additionally, such severe mental pain can arise only from the predicate acts listed in Section 2340. Because the acts inflicting torture are extreme, there is significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture. [pg. 46]

So - if I'm parsing this right, things like tying you up and beating the shit out of you or stripping you naked and smearing you with shit or making you simulate sex acts on other naked prisoners would be legal, although actually beating you to death would still get you in trouble. This is what would be legal under US law for the treatment of suspects and detainees captured abroad, according to the President's legal team.

That's nothing, though. Get this:

It could be argued that Congress enacted 18 U.S.C. § 2340A with full knowledge and consideration of the President’s Commander-in-Chief power, and that Congress intended to restrict his discretion; however, the Department of Justice could not enforce Section 2340A against federal officials acting pursuant to the president’s constitutional authority to wage a military campaign.

Or this, from a working group put together by the DoD (not Gonzales, as I said before - too many torture memos to keep straight):

To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a "presidential directive or other writing" that could serve as evidence, since authority to set aside the laws is "inherent in the president."

And echoed again in Gonzales' own memo of legal advice to the President:

[I]t is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [the War Crimes statute]. Your determination would create a solid basis in law that Section 2441 does not apply, which would create a solid defense to any future prosecutions.

Arguments about the applicability of the Geneva Conventions and the status and treatment of prisoners are arguments from the 19th and 20th centuries, and are arguments about how to codify and apply the law. These are old arguments, and important arguments, and there's a lot of precedent people can draw on when trying to hash out the ins and outs of which Peter Cetera albums are torture and which are acceptable abuse. But arguments about whether or not laws apply only at the pleasure of the head of state is an argument from the 13th century, and it is an argument about whether law, in the sense that Western civilization has for some centuries generally understood it, is something that even exists. After we have our useful debate about how exactly we should define illegal torture, our representatives can still do whatever the fuck they want to anybody, provided they come strapped with a note from the President. This is what is at issue, and this is what Albert Gonzales repeatedly refused to disavow.

Michael Totten seconds Reynolds’s concern about the etiquette of criticizing national political figures:

The fracas in my comments section only seemed to prove (at least to me) one of Glenn Reynolds’ points: Making this issue about a person (Bush or Gonzales) only turns the argument into a partisan bitch-fest. I’m sorry for “going there.” But I’m not sorry at all for saying that some things are over the line and that I don’t want them done in my name.

Albert Gonzales has offered the legal advice on how to avoid getting prosecuted for ordering acts of torture which are, or some may consider, illegal. And now he's on deck to be the top lawyer in the country. So, if you are against the US torturing people, you have to be against this guy being Attorney General. And Gonzales has been nominated by, and the entire legal apparatus of which he is a part, serve at the pleasure of the President. I know I've said this a hundred times before, but I guess I'm going to have to say it again: George W. Bush is the President. His job is Presidenting the United States. When the President nominates someone who has already told him about how he could, if the mood took him, torture people in violation of Geneva and US law, you have to oppose his choice or oppose nothing. This is just the reality of the situation we're facing right now. I wish I could find some way to make it easier for you by blaming it all on Ted Rall or Michael Moore, but I can't quite figure out how to work that angle yet.

Totten and Reynolds both stress that they have always stood against torture. Good. So have I, and so have, I hope and believe, most Americans. However, while we've all been standing around, it seems that there's been a small epidemic of torture by Americans in Iraq, Afghanistan, and Cuba, as well a few cases of outsourcing the job to countries with a lot of torture experience, as well as some unknown number of detainees being officially "disappeared", their locations and fates unknown. Looking about, I'm starting to think that the standing strategy isn't really cutting it, and there is need for a more proactive approach. You are willing to stand against torture, but why aren't you willing to lift a finger to end what has been happening? Why won't you open your mouth?

You don't want a partisan battle. I don't want one either - that's exactly the opposite of what I want. I want you to actively oppose the Gonzales nomination and the legitimization of extra-legal torture. I want Republicans to fight against this damned thing so it stops and never happens again. There will be no ratification of torture if both sides oppose it. But if we don't come together on this, and if it turns into partisan fight, and if it ends up validating the President's supra-legal authority to torture who he pleases, the fault will not lie with those who tried to stop it. The blame will be on those who excused it, and on those who, while claiming opposition, stood around and did nothing.

Posted by DeLong at January 7, 2005 06:41 PM

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Comments

It reminds me of the justifications that supporters of the military dictatorship used here, "You know, I am against torture, BUT....", "You know, I am against secret executions, BUT..., JUST in this case...".

Posted by: Carlos at January 7, 2005 06:54 PM


I think you have hit the nail on the head. I really can't understand how these people can reconcile their opposition to torture with supporting the nomination of someone who has essentially argued for torture.

Incidentally, would Peter Cetera's albums with Chicago constitute torture or not?

Posted by: aiontay at January 7, 2005 06:57 PM


Sounds like that old devil Moral Relativism to me.

Posted by: Susie from Philly at January 7, 2005 07:12 PM


EXCERPT FROM: "Iraq: The Devastation" By Dahr Jamail, to be found at:
http://www.tomdispatch.com/index.mhtml?pid=2109

It was quickly apparent, even to a journalistic newcomer, even in those first months of last year that the real nature of the liberation we brought to Iraq was no news to Iraqis. Long before the American media decided it was time to report on the horrendous actions occurring inside Abu Ghraib prison, most Iraqis already knew that the "liberators" of their country were torturing and humiliating their countrymen.

In December 2003, for instance, a man in Baghdad, speaking of the Abu Ghraib atrocities, said to me, "Why do they use these actions? Even Saddam Hussein did not do that! This is not good behavior. They are not coming to liberate Iraq!" And by then the bleak jokes of the beleaguered had already begun to circulate. In the dark humor that has become so popular in Baghdad these days, one recently released Abu Ghraib detainee I interviewed said, "The Americans brought electricity to my ass before they brought it to my house!"

Sadiq Zoman is fairly typical of what I've seen. Taken from his home in Kirkuk in July, 2003, he was held in a military detention facility near Tikrit before being dropped off comatose at the Salahadin General Hospital by U.S. forces one month later. While the medical report accompanying him, signed by Lt. Col. Michael Hodges, stated that Mr. Zoman was comatose due to a heart attack brought on by heat stroke, it failed to mention that his head had been bludgeoned, or to note the electrical burn marks that scorched his penis and the bottoms of his feet, or the bruises and whip-like marks up and down his body.

I visited his wife Hashmiya and eight daughters in a nearly empty home in Baghdad. Its belongings had largely been sold on the black market to keep them all afloat. A fan twirled slowly over the bed as Zoman stared blankly at the ceiling. A small back-up generator hummed outside, as this neighborhood, like most of Baghdad, averaged only six hours of electricity per day.

Her daughter Rheem, who is in college, voiced the sentiments of the entire family when she said, "I hate the Americans for doing this. When they took my father they took my life. I pray for revenge on the Americans for destroying my father, my country, and my life."

Posted by: Lee A. Arnold at January 7, 2005 07:36 PM


Here's a starting point: http://www.townhall.com/columnists/jonahgoldberg/printjg20050107.shtml
and also this link:
http://www.city-journal.org/html/15_1_terrorists.html


Another quarter heard from.

But note that the facts in evidence are subject to considerable revision. Maybe Instapundit has other resources than you do.

Posted by: Arnold Williams at January 7, 2005 07:36 PM


Could somebody please show me where in the Constitution it states that the authority to set aside the laws is "inherent in the president"?

Posted by: Lewis Carroll at January 7, 2005 08:24 PM


Well, as a bit of honest history, Abraham Lincoln suspended Habeas Corpus during the Civil War. Much as I hate comparing Bush to Lincoln, did Lincoln's action not amount to the president setting aside the law?

[Yep.]

Posted by: trostky at January 7, 2005 08:58 PM


It would be a dangerous thing for america, if the president would be above the law. Remeber that scene in 17thC england whn James the second wished to enter the Commons, his aide refused saying, it is not lawful, the king replied, I am above the Law, to which his aide replied, perhaps, but I am not. James was soon gone.

Posted by: Big Al at January 7, 2005 09:04 PM


"Well, as a bit of honest history, Abraham Lincoln suspended Habeas Corpus during the Civil War."

So what? Did it help win the war? I strongly doubt it.

Posted by: praktike at January 7, 2005 09:48 PM


EXCERPT FROM: John Lewis Gaddis, "Grand Strategy in the Second Term," FOREIGN AFFAIRS, Jan/Feb 2005:

"What September 11 showed was that the United States can no longer insulate itself from what happens in [the Middle East]: to do so would be to ignore clear and present danger. A conservative Republican administration responded by embracing a liberal Democratic ideal--making the world safe for democracy--as a national security imperative...

"[But] one apparent assumption that runs through the Bush grand strategy deserves careful scrutiny. It has to do with what follows shock and awe. The president and his advisors seem to have concluded that...[the] old ways of doing things no longer worked. The status quo everywhere need shaking up. Once that happened, the pieces would realign themselves in patterns favorable to U.S. interests.

"It was free-market thinking applied to geopolitics: that just as the removal of economic constraints allows the pursuit of self-interest automatically to advance a collective interest, so the breaking up of an old order would encourage a new one to emerge, more or less spontaneously...

"[T]he assumption that things would fall neatly into place...was the single greatest misjudgement...

"It explains the failure to anticipate...resistance... ...absence of planning for the occupation... ...overstretched military... ...obligations dangerously unfunded... ...inexcusable laxity about legal procedures--Abu Ghraib...--to squander the moral advantage..."

Very good articles in the new issue of Foreign Affairs by Gaddis, James Dobbins, and Edward Luttwak give an insight into the consistent shortsightedness of Bush in waging the wars on terror and Iraq, --which is newly evidenced by the rewarding of his torture legal-eagle with a c.v. upgrade, for all the world to see and deplore, wrecking the U.S. image further.

The problem is, Bush has adopted a liberal Democrat foreign policy, but he has had neither the disposition nor the mentality to follow-up on the essentials which that would entail: specifically, looking out for the "other guy." He's locked inside the philosophy of market individualism, specifically, what sounds like the Austrian subdivision. And he thinks everything should work the way he wants it, simply because he has spoken. He is a man for whom appearances don't matter, except for winning his own domestic elections.

Interestingly this also points up the Democrat's dilemma: not only have the Republicans taken-up half of their own approach to the war on terror, but now they are trying to make the case that the Republicans should shit-can a dismal yes-man of torture. Which even if successful would only be seen by the Iraqis as a hypocritical image-adjustment. If the Iraqis even bother to pay attention.

Posted by: Lee A. Arnold at January 7, 2005 11:26 PM


"Did [the suspension of habeas corpus] help win the war? I strongly doubt it."
Ungortunately the war would certainly have been exceedingly short without it; Maryland would have seceded in 1861 (hence the government in Washington would have been captured). Lincoln chose to destroy the constitution in order to save it.

Regardless of the merits or otherwise of such an action undertaken in extremis, no one can seriously pretend the republic is under that sort of extreme and immediate threat now.

Posted by: derrida derider at January 7, 2005 11:30 PM


derrida derider wrote, "Regardless of the merits or otherwise of such an action undertaken in extremis, no one can seriously pretend the republic is under that sort of extreme and immediate threat now."

Mark Kleiman had a very interesting post months ago about Lincoln's violations of the constitution, compared to what's going on today. Kleiman pointed out that the threats Lincoln had to consider were threats against the constitutional order itself. The threats being faced today are nowhere near such.

Posted by: liberal at January 8, 2005 12:30 AM


Conservatives enjoy finding embarrassing moments in the careers of liberal or Democratic heros and using them to justify whatever some Republican is doing today. So the worst things that Jefferson, Jackson, Lincoln, Wilson, or FDR did are all OK now if a Republican does them.

(The odd thing about that list is that Lincoln was a Republican, but if I hadn't pointed that out, my guess is that the irony owuld have slipped right by people. Recently when a Lincoln statue was erected in Richmond, VA, there was a tremendous controversy, and it remains the only Lincoln statue in the South.)

The malicousness of this kind of argument is disgusting. A high proportion of the people who call themselves conservatives are motivated more by the desire to destroy liberalism (by any means necessary) than by any positive vision.

The collaboration of people who should know better in the meanness, dishonesty, and sabotage we are seeing needs some kind of explanation. My explanation is the most cynical and paranoid one: most people in the major media have given up on the United States and are just feathering their nests (there are hundreds of Armstrong Williamses). I also suspect that a fair number of people have found horseheads in their beds.

So OK, I'm a conspiracy theorist. But what is the explanation then?

Posted by: John Emerson at January 8, 2005 07:12 AM


Seeing the Republicans trying to use logic to justify the unjustifiable would be funny if they weren't running the country? Can they stand up for a principle, just one, for the good of the country? I didn't think so. For those Republicans who think making the president above the law is a good thing I would ask them how they would feel if this were Janet Reno proposing this?

Wrong is always wrong. You don't throw out the Constitution when it's no longer convenient for you.

Posted by: Unstable Isotope at January 8, 2005 07:15 AM


When will this guys realize that bi-partisanship means that when you disagree with your side you have to stand up with the other?

Posted by: Mary R at January 8, 2005 08:10 AM


The president of the US does have the power to immunize people for breaking the law; he can pardon them. We know from Clinton that fugitive from justice can enjoy the benefits of a pardon. We know from Nixon and Ford that a president can pardon for unspecified acts that might or might not have occurred. Of course this is not the thing at issue. It’s a separation of powers debate, how much can the US Congress limit the actions of a US President? Suppose the president wants to paint the White House. Congress can deny him the funds to buy the paint, but can it tell him what color to use? If Congress doesn’t like the way a president conducts a war, it can defund that war, but to what extent can it tell him how to fight that war? The president’s lawyers are supposed to answer questions like that for him. Gonzales was acting in that capacity, and we should know how good a lawyer he is. But Gonzales was pretty evasive under questioning; I wouldn’t approve someone that evasive. On the other hand, the senators did a poor job in framing their questions. They did not ask the question Yale professor of International law Harold Hongju Koh says they should have asked: “Is the anti-torture statute constitutional?" So the senators are not very good lawyers either. They don’t like evasive answers from Gonzales; they don’t like the kind of answers they themselves give to their constituents. Once again the pot calls the kettle black.

Posted by: A. Zarkov at January 8, 2005 08:53 AM


"The president of the US does have the power to immunize people for breaking the law; he can pardon them"

Can a President pardon anyone for anything?

And isn't pardoning someone under the Constitution and existing statute fundamentally different from saying the President can set aside those very statutes?

Posted by: flory at January 8, 2005 09:32 AM


I don't see how the US image in the world will be affected by Gonzalez, one way or another. Our image will be that of imperial power run amok at least until the Bush administration is out of office.

Our image can only be repaired if, once the Bush administration is out of office, there are wholesale prosecutions for war crimes involving senior members of the administration, including the President.

Unless one assumes that Bush will give a blanket pardon to every person accepting a paycheck from the US government from 2001 thru 2008, including himself, condoning torture is a dangerous course for him to take. Just because he believes he's above the law, doesn't mean future administrations and Congress will - without proactive pardons, he puts himself at risk. That's the advice Gonzalez seems to have missed (at least in the public documents).

Posted by: flory at January 8, 2005 09:39 AM


"But arguments about whether or not laws apply only at the pleasure of the head of state is an argument from the 13th century, and it is an argument about whether law, in the sense that Western civilization has for some centuries generally understood it, is something that even exists."

Correct - but note that Carl Schmitt in the 1930s took the view that national executives had the power to define their own exceptions to constitutions in emergencies. Schmitt seems a better fit with Bush's doctrine than bad King John.

Posted by: Otto at January 8, 2005 09:59 AM


"Much as I hate comparing Bush to Lincoln, did Lincoln's action not amount to the president setting aside the law?"

No--because the Constitution itself provides:

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Lincoln, of course was dealing with a rebellion. Bush has no ongoing rebellion or invasion to justify his actions. Even so, Lincoln went too far in his suspension--but his administration (Lincoln himself was dead by that time) ultimately accepted that the judicial branch had the final say in the matter.

"It’s a separation of powers debate, how much can the US Congress limit the actions of a US President?"

In this context, the answer is very clear. The cosnttution grants Congress the powers:

"To define and punish . . .Offences against the Law of Nations;

To . . . make Rules concerning Captures on Land and Water . . .

To make Rules for the Government and Regulation of the land and naval Forces . . ."

These three express grants of power to Congress plainly trump any implict power of the President as Commander-in-Chief.

Posted by: rea at January 8, 2005 10:10 AM


“Can a President pardon anyone for anything?”
I think the answer is “yes,” I know of no limitations on the presidential power to pardon.
“And isn't pardoning someone under the Constitution and existing statute fundamentally different from saying the President can set aside those very statutes?”
Absolutely. That’s why I said it’s not the real debate. But it is a backdoor means of immunizing people. If the president abused his pardoning powers as Clinton did, then Congress could remove him from office. Note that many of Clinton’s pardons were within hours of his term’s expiration.
“To make Rules for the Government and Regulation of the land and naval Forces.” Yes that’s (at least on its face) an argument against an unfettered president.

Even better is section 8, article 11:

“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”

Which does on its face seem to grant the power to Congress to regulate the treatment of prisoners taken in conflicts.

With “Letters of Marque and Reprisal” Congress could authorize private citizens to march across borders and engage in acts of reprisal against foreigners. Could “reprisals” include acts of coercion that might be called “torture?” Of course these are congressional powers, not presidential powers.

Posted by: A. Zarkov at January 8, 2005 10:55 AM


Just out of curiousity, how do a few questionable pardons (e.g., Marc Rich) by Clinton compare to Bush 41's pardon of Weinberger and others in December of 1992? Weinberger and crew were implicated in the Iran-contra affair which Bush himself was implicated in? If Weinberger were convicted, Lawrence Walsh might well have gone after Bush himself.

Posted by: M. at January 8, 2005 01:35 PM


i do not believe that anyone would accept that a president can pardon himself, therefore there is at least one limit to the presidential pardon.

Posted by: bryan at January 8, 2005 02:52 PM


“Just out of curiousity, how do a few questionable pardons (e.g., Marc Rich) by Clinton compare to Bush 41's pardon of Weinberger and others in December of 1992?”

Clinton had more than a few questionable pardons, but to answer the question, Weinberger was not a fugitive from justice. I think Rich’s pardon was unprecedented. A pardon is supposed to correct a miscarriage of justice, or rehabilitate someone who is in some sense deserving. In this case of Rich, justice never got a chance to even play out. The pardon came at the last minute, and Clinton dealt directly with Rich’s lawyer who did an end-run around the normal process by which candidates for pardon are vetted. Rich’s ex-wife made a substantial contribution to the Clinton library, which the Clintons control. So there is at least the strong appearance of a bribe. Then Clinton also pardoned his brother, drug dealers and Puerto Rican terrorists.

The pardon of Weinberger also looks pretty bad, but it’s hardly unprecedented. Presidents pardon their cronies. The Iran-Contra affair also had strong political overtones, so a president might reasonably correct what he sees as a political punishment. I don’t subscribe this argument, but it has at least a veneer of credibility, unlike the Rich pardon. I don’t think there is anyway to interpret the Rich pardon except as an out-in-out bribe.

Posted by: A. Zarkov at January 8, 2005 04:16 PM


What in the name of hell is a "Glen Reynolds" anyways? Some kind of cheap cocktail?

.

Posted by: Aaron at January 8, 2005 11:23 PM


A. Zarkov wrote, "The pardon of Weinberger also looks pretty bad, but it’s hardly unprecedented. Presidents pardon their cronies. The Iran-Contra affair also had strong political overtones, so a president might reasonably correct what he sees as a political punishment. I don’t subscribe this argument, but it has at least a veneer of credibility, unlike the Rich pardon."

Nonsense.

The Rich pardon was petty corruption, no more, no less.

The Weinberger pardon was part of an effort to shuffle crimes of state and gross abuses of presidential power under the rug.

Posted by: liberal at January 9, 2005 04:44 AM


Iran/Contra was on an entirely different order of magnitude and consequence than Marc Rich.

Then, as now, the issues were international war crimes and an imperial presidency acting in violation of laws passed by Congress. The same criminals were involved.

Sad that so-called moral conservatives refuse to fully recognize what they are actually supporting (at least supposedly). They seemed to understand the prosecution of Presidents for petty misconduct very clearly when it was Clinton. But of course, if they weren't already deeply hypocritical then they wouldn't embrace Republicanism.

As another example, can you imagine the reaction if Republicans had to wait six hours to vote? And yet not one Republican in sight has stood up for the rights and dignity of black voters. Even uttered a peep. What impressive moral courage. How noble their commitment to Democracy is.

We are either a nation of laws, or we are not. Either a President is subordinate to law, treaties and congress--or he is not. It is very simple, really.

And either you are consistent or you are not. That is also simple and readily visible.

Posted by: Tim B. at January 9, 2005 10:28 AM


“The Rich pardon was petty corruption, no more, no less.”

Corruption yes, but why petty? It seems to me that selling pardons is more than “petty” corruption. The Rich pardon was obstruction of justice because Rich was a fugitive. Rich also owes the US government more than a petty amount of money.

The Weinberger pardon was troubling because it was granted before he went to trial. It also served the interests of Powell who would have had to testify at his trial, and he would have had to deal with contradictions in some of his prior testimony. No surprise that Powell lobbied Bush 41 to pardon Weinberger. There seems little doubt the whole series of pardons in Iran-Contra were Bush protecting himself and various cronies from Walsh’s continuing investigation. There is definitely an obstruction of justice aspect to the Bush pardons. Although (unlike Rich) I think the normal vetting process was observed. On the other hand, the whole Iran-Contra affair was a fight over foreign policy between the President and Congress and most of the charges against the pardoned were for giving false testimony to Congress. Several of the convictions were overturned on appeal.

Lying to Congress hardly started with Iran-Contra. Let’s not forget that McNamara lied to the Congress about the removal of Jupiter C missiles from Turkey. He was asked point blank in Congressional testimony, “was there a deal with Khrushchev?” McNamara said “no.” Of course later we found out there was a deal, and until this day McNamara is unrepentant. His attitude is “yeah I lied, so what, Congress needed to be lied to.” I heard him say this myself. I don’t remember if he testified under oath.

Posted by: A. Zarkov at January 9, 2005 03:03 PM


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