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June 30, 2006

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» Hamdan Analysis from Emergent Chaos
On the plane home from England, I watched V for Vendetta. (If you haven't seen it, the basic story is that terror attacks cause turn England into a police state, and a masked freedom fighter terrorist blows things up... [Read More]

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So, lemme see..."The Commander will review the initial determination that the detainee is an enemy combatant within 90 days from the time that a detainee comes under DoD control." OK, and how is this done? (drum roll)...fuckn' torture, mah dear, torture. Hmmmm, screaming versus admitting anything that will stop the pain and bingo! Ain't no-one here but us terrorists, move along folks. American Gulag is upon us.

if no one other than the ICRC, which has a policy of strict confidentiality, is allowed to visit this facility

There are areas of Bagram to which the ICRC has no access.

No doubt that will be true for the new "facility", too.

As I said: What next?

It would appear that the official Republican talking point is that the Supreme Court decision was effectively "a treaty with al-Qaeda" and so the President does right to ignore it.

Hil:

They were actually operating under somewhat similar conditions when they filed Rasul--only the Red Cross had access to the prisoners. The lawyers who filed the claims could not meet their clients or even mail them the complaint. The administration didn't release the full list of their names until this April.

The way you sue is to get authorization from a family member who can act as "next friend" in the habeas case. If the ICRC has access to the prisoners at Bagram I think there's a good chance they can send mail to their families.

In Guantanamo, though, the prisoners who were the first habeas plaintiffs were citizens of England and Australia, and their families spoke English, had the resources to contact lawyers, could get confirmation from their gov'ts that their relatives were being held there. In Bagram, this is probably not the case. And Afghanistan is very dangerous.

If they did file a habeas case it would presumably be the same drill as Rasul: they'd need to win on the jurisdiction issue at the Supreme Court before they even got to meet their clients. And based on Kennedy's Rasul concurrence, I don't know that they have 5 votes for jurisdiction because the "oh come on of course it's US territory and will be forever" argument doesn't apply the same way--Afghanistan is a war zone right now.

There is one additional incentive to comply with Common Article 3 now, though: as Kennedy specifically noted in his concurrence, violations of Common Article 3 are crimes--serious felonies, punishable by death in some cases--under the U.S. war crimes statute. They will not, of course, prosecute anyone under this statute now. But the prospect of later prosecutions may make the services and CIA nervous enough that the predictable "why waterboarding is still legal" OLC memo just won't cut it anymore.

That's not a given, because they have done other things that there's a reasonable case expose them to criminal liability under the anti-torture statute. But at a minimum I think it requires the adminstration to write an even more sweeping set of "torture memos" than the first one. Because as bad as the argument that these techniques are not "torture" is, the argument that they comply with C.A.3. is even harder. (They'd have to instead argue that the Supreme Court didn't really say that C.A.3 applies, or use the commander in chief override).

This prospect of criminal liability is the second major difference with the McCain amendment, which outlawed but did not provide for criminal liability for cruel, inhuman and degrading treatment. (Glenn Greenwald gets this exactly backwards in his post and comments today btw--someone should straighten him out.)

This comment from Walter Dellinger in response to Hamdi and Rasul two years back does make you wonder if we're being way too optimistic, though:

"My goodness, Dahlia! The Great Writ lives. Government by law is reaffirmed. Constitutional balance is restored. A historic day. It's hard to know where to begin."

Oy.

Can we have a separate post on the issue of the US occupation in Iraq disregarding the Geneva Conventions (both with regard to prisoners of war and civilian persons)?

The US occupation swept up tens of thousands of Iraqis and held them prisoner (I recall a post on Tacitus's blog two or three years ago now about a 10-year-old boy who was held for weeks in an adult detention center after a US army raid on his family's home), sometimes explicitly as hostages in contravention of Article 3.b, sometimes by mistake (Nir Rosen's article references an instance of the "wrong Ayoub" being arrested, only to discover that the Ayoub they were after was a teenage boy who'd been talking about video games), sometimes because a son might protest against his father's arrest (or vice versa).

Some of these prisoners were killed: some are probably still in detention: some were eventually released. In some cases, the Geneva Conventions were followed: in some they were not (and I am not even talking about torture: just about the ordinary humane provisions required by the Detaining Power) and no senior officers (and few NCOs, even) have been penalized for soldiers under their command breaking the Geneva Conventions.

Well, that was a depressing read for a Friday morning. And it's too early to start drinking, even for me.

The Hamdan decision doesn't end hunger in Africa, flooding in Bangladesh, impoliteness in New York City, or even the Jesse James cult in western Missouri.

It does give military officers strong support to turn in their membership badges in the Bush cult. This is a big deal, even in Bagram.

CharleyCarp: The Hamdan decision doesn't end hunger in Africa, flooding in Bangladesh, impoliteness in New York City, or even the Jesse James cult in western Missouri.

You're the very first person I've seen suggesting that it would do any of those things, Charley. Did you read anyone anywhere suggesting that it did?

It does give military officers strong support to turn in their membership badges in the Bush cult. This is a big deal, even in Bagram.

I certainly hope you're right about that. I look at what happened to Joseph Darby, though, and I wonder.

I'd like to apologize for the sarky first part of my comment to CharleyCarp. It was a thoughtless piece of sarcasm to someone who's done more individually than any of the rest of us for the prisoners in Guantanamo Bay, and I'm ashamed I wrote it.

Sorry, Charley.

whatsamatter with impoliteness in New York City?

You tellin me there's something WRONG with impoliteness in New York City?

You wanna come over here and say that?

CharleyCarp: "The Hamdan decision doesn't end hunger in Africa, flooding in Bangladesh, impoliteness in New York City, or even the Jesse James cult in western Missouri."

Yes, but the difference is, no one would expect it to do any of these things. I'm not sure everyone realizes that we stopped sending prisoners to Guantanamo (except for that one group of ten) right after Rasul came down, so people might think that this would apply to most of the people we're holding.

As I said, though, I do not for a moment want to deny or minimize what this means to the prisoners at Guantanamo. To let someone who has been kept in conditions designed to deprive him of any hope or comfort know that there is a way for him at least to state his case is, I would think, enormously significant -- both directly and insofar as it lets him know that things are not entirely hopeless, since there is some concrete step he might take that would let him prove his innocence, if he is innocent, and bring his confinement to an end.

For some reason, one of the details about the Uighurs that always really got to me was the thought that they had children they had never met, children who were growing up without a father, and who had not even known that their father was alive for years. To be that father, and to know that your children's childhood was slipping away, that you might never meet them at all, and that there was nothing on earth that you could do to change that, even after your captors had concluded that you were innocent -- I couldn't imagine what that would be like. All the more so since that was just one detail among many.

Does the 2005 DTA even apply to Bagram?

1)The number I heard was 83,000 worldwide, which seems absurdly high, but if there are 600 in Afghanistan, one should presume at least 10 times that in Iraq.
2) A monstrosity. 50 years after Nuremburg, and we are torturing, indefinite detention without habeus, etc and I am supposed to celebrate the expansion of Youngstown with Hamdan as curbs on Executive Power. Look, folks, we should not have to parse the law, convince SCOTUS, and go to Congress to preserve habeus and Geneva Article 3. There were plenty of laws on the books that should have stopped Auschwitz. And I will not sccept an argument of the form:"Auschwitz did not stop Pol Pot." THIS IS AMERICA.
4) So how do we stop this? Bush will always find footsoldiers, if he has to hire Thais or Guatemalans. Perhaps there is no way to stop monsters like Pol Pot, Saddam, and Bush.
But Nuremburg rules strikes me as the most reasonable attempt. Within drastic punishment at the top, it will happen again.

PS:Anyone offended by the comparison above, if a man entrusted with protection of the law puts himself outside the law and kills one, we are just absurdly keeping score. He can kill 6 million. My example has been Cheney blowing away Reid on the Senate floor. It is the offense to the law that matters more than the offense to people.

And honestly, saving one person does not protect the law.

Rather than repeat what they have said more elegantly, and with a lot more knowledge to back it up, I'm going to focus on the bad news, which is: this decision in no way ensures that all, or even most, of the people our government is currently detaining outside the normal legal system will have any rights or recourse whatsoever.

I think the necessary focus isn't on the ability of detainees or those who represent them to enforce their rights -- it's on the criminal liability of everyone participating in their detention insofar as it does not comply with Common Article 3. Those people know who they are, other people within the US military and intelligence community know who they are, and after this decision there is a very strong argument that they are committing war crimes in the eyes of the Supreme US legal authority. The jailers at black-sites are now in a position where they know that they may possibly find themselves under arrest at some future date, and have no better defense than that they were only following orders.

Congress does have war powers! The President cannot disregard statutes at will! We live in a Republic, not a dictatorship!

To this conservative, no "reaffirmation" necessary. Those who really did hold those views are monumentally out of step with the reality of the checks and balances in our government.

On the GC, the SC made the obvious decision. It also seems obvious that the same rules to be applied at Gitmo also apply in any other locations where detainees are held. POW status need not apply, but all must be treated humanely. I expect Congress will step in and outline a process for competent military tribunals in the coming months.

Jes: not needed at all. My point is that what Hamdan didn't do, it could not have done.

Ugh: I don't have it in front of me, but I think the jurisdiction stripping provision of the DTA is limited to GTMO. I'm quite sure of that. The provisions of the DTA that preclude abusive treatment do apply to Bagram -- I believe that this was the point of the signing statement, and the insistence that no AQ suspects are covered by CA3. All that's gone now -- as LB says, people at the black sites are acting at their peril now, and this peril is going to long outlast this Administration. I expect to see a long list of pardons at the end of the term, but I think plenty of people are going to have to restrict their foreign travel.

NYnot: Well, I didn't say that everyone in NYC is impolite. Someone want to argue the position that no one in NYC is ever impolite?

Those who really did hold those views are monumentally out of step with the reality of the checks and balances in our government.

Of course. That they are employed by, or support, the current Administration is not irrelevant. But it's a truly fine thing if conservatives find their points of disagreement with the Adminsistration on the respective roles under the Constitution, and move the government to better respect for the traditions of our civilization.

I expect Congress will step in and outline a process for competent military tribunals in the coming months.

Charles, I hope that Congress steps up and requires all of the detainees that we're holding, at all of the different sites, to face this kind of reasonable, GC-approved procedure (rather than the kinds of arbitrary decisions that Hilzoy and others have been describing). But I'm not optimistic. If the next four months prove that our current Congress does not want to do this, would you consider voting for members of Congress who do (and encouraging others to do the same)?

Will Hamdan Have Any Effect on the Bush Presidency Greenwald rejoices. The Moderate Process Freak criticizes Atrios and Digby for "cynicism and defeatism".

No "cynicism and defeatism" here. Just a recognition that as heroic and noble Harriet Tubman was, it was Lincoln and Grant that freed the slaves. That the 14th amendment gave no one any rights, that Brown vs Board did not end segregation. Guys with guns, National Guard and FBI did those things. Some species gotta get hit with a 2x4, some ideologies only respect force. Youda thunk we might have learned something in 300 years.

"To this conservative, no "reaffirmation" necessary. Those who really did hold those views are monumentally out of step with the reality of the checks and balances in our government."

Would a search of the archives support that this has been you enduring and consistent opinion, stated clearly and forcefully?

John Yoo fires back at the Supreme Court here.

Let's see:

1. False choice between what Bush wanted and full-blown civilian criminal trials? Check.

2. Invocation of FDR and Lincoln? Check (he also throws in Washington and Jackson).

3. September 11th? Check.

4. Falsely implying that the courts have never been involved in previous wars? Check.

Actually, the thing reads in toto like a temper-tantrum because the Supreme Court just spat on his theory of executive power.

I expect Congress will step in and outline a process for competent military tribunals in the coming months.

I expect they'll step in and offer-up some exceptionally heinous and nonsensical election-year demagoguery.

To this conservative, no "reaffirmation" necessary. Those who really did hold those views are monumentally out of step with the reality of the checks and balances in our government.

On the GC, the SC made the obvious decision. It also seems obvious that the same rules to be applied at Gitmo also apply in any other locations where detainees are held.

But Charles, among those who do not consider the decision "obvious" are conservative heroes Scalia, Thomas, Alito, and Roberts (as an appellate judge).

I don't doubt your sincerity, but is there really a substantial body of conservative opinion that supports this decision? Where is it? Who does it consist of?

Brad Delong

Scott Lemieux

And so many others on the left are celebrating Hamdan as a separation of powers victory for democracy.

Dudes, dudes, your irrational Bush-hatred is blinding and confusing you. The important point here is not the proper legal procedures that should used in order to legalize torture, mistreatment of prisoners, and atrocities. This is not about Bush.

This should be about whether the Hague, Geneva and Torture Conventions are codes of behavior we can conceivably "opt out of" in any way and remain a legitimate nation.

National Review has this to say.

National Review has this to say.

What putrid bunch of wasteful nonsense.

What putrid bunch of wasteful nonsense.

Agreed. I was just looking for some significant conservative support for the decision (not that Charles is insignificant, but he doesn't have quite the clout in right-wing circles that NR has). Guess I'll look elsewhere.

Bernard: I thought of writing something about that, but couldn't stand it.

One more occasion for my favorite Emerson quote:

"Well, most men have bound their eyes with one or another handkerchief, and attached themselves to some one of these communities of opinion. This conformity makes them not false in a few particulars, authors of a few lies, but false in all particulars. Their every truth is not quite true. Their two is not the real two, their four not the real four: so that every word they say chagrins us and we know not where to begin to set them right."

I prefer, "Man will occasionally stumble over the truth, but most of the time he will pick himself up and continue on."

This should be about whether the Hague, Geneva and Torture Conventions are codes of behavior we can conceivably "opt out of" in any way and remain a legitimate nation.

Exactly. And this is a battle that has to be fought in Congress, not the courts. Bob, I don't expect that your senators can be turned, but that doesn't prevent you from calling people you know in places where senators can be turned.

You can write an op-ed: I forget, but didn't Sam Houston treat Mexican captives at San Jacinto much more favorably than Santa Ana did captives at Goliad? (As if anything could have been worse!) WWSHD?

Good one, Sebastian. I never heard it before. While we're in the neighborhood, Thoreau seems relevant:

Always you have to contend with the stupidity of men.

Peripheral to topic? But good

Ron Suskind & The Revolt of the Professionals ...nadezdha at American Footprints

Directly on topic;Billmon on Hamdan. Dangerous and sensitive material here, adults only:Billmon mentions Johnson vs Eisentrager and uses the words "judicial activism." But it's good judicial activism.

Maybe not. Perhaps the Bush administration should publicly pull a Jackson, repudiate Hamdan, re-assert Executive Independence, and flay a couple Gitmo kids on the WH lawn just to show they mean business. Be good politics, too. Fox would cover it live.

Crime and Punishment

"Ultimately, that’s why we have a Constitution that makes international treaties, once executed, part of the supreme law of the land – and an independent judiciary to interpret that law, even if it means identifying the vice president of the United States, and his stooges, as common criminals." ...Billmon

Aw Gee, guys. Read nadezdha. It's Bush. Bush is nobody's bit..puppet.

Bob McM -- Many thanks for the link, and although my post is "peripheral," you're right that it's not OT.

The point from my post that's on-topic is that the approaches taken by the Bush Admin in the immediate aftermath of 9/11 were improvisation and not sustainable. That goes not only for the treatment of detainees -- whether Gitmo or Bagram, extraordinary detentions, torture etc -- but lots of other stuff like the intel abuses of ignoring FISA and other basic legal/constitutional protections. Fine as short-term emergency measures, perhaps, but as SCOTUS dicta stressed, we're not in a perpetual undeclared national state-of-emergency.

Suskind describes some of the reasons why the Bush Admin has clung to its initial approach to the GWOT (which extends to Iraq etc.) even in the face of ample evidence that their approach isn't working or is self-defeating. Extending his earlier stories on the dysfunctional inner-workings of the Bush Presidency, he shows how the idiosyncracies of the Oval Office and the Bush-Cheney-Rumsfeld worldview have produced perverse incentives throughout the national security bureaucracies. Shorter: they're still driven by the fear-based dynamics of 9/11.

However, a growing number of pros in the military and intel ranks not only recognize that the initial emergency structures aren't sustainable. They also fear that they, rather than their political leaders, will get left holding the bag.

Before Hamdan the political types could pressure the pros with Yoo-type legal cover/bluffs. If the pros pushed back or didn't go along, it would be a career-limiting gesture, as it were. The argument of the Bushies -- "hey, it's legal, and you're either with us or against us."

What CharleyCarp is suggesting is that the pros who disagree with the Admin approach on a whole lot of things just got a big fat club they can use internally. They can now say back -- "hey, it's not legal -- or at least your old legal opinion isn't worth squat, so bring me another."

IMHO, that's a big deal. It means that even if (when) the guys at the top try to end-run the laws and treaties on the books, there will be a whole lot of pros who won't go along and/or will feel that their disclosure of abuses and future end-runs has been supported by SCOTUS. There must be more than a few in the current ranks of pros who feel vindicated today.

On the particulars of Gitmo, Bagram and detainee treatment generally, the Court hasn't done much other than put the ball in Congress' court. But that's a major improvement, even if Congress winds up giving the Admin a lot of what it wants and granting an amnesty of sorts for past behavior.

So the battle now turns to Congress and the court of public opinion, where the Rovian troops will try between now and November to convince voters that SCOTUS has just committed treason. That's where all of hilzoy's and your concerns are going to have to be thrashed out. And as an aside, I think we're going to have to take a big-picture view of amnesty and recognize that it's going to be the price of getting something tolerable out of Congress and this White House.

It's going to be a very very ugly battle, but at least we can have the battle now, because SCOTUS has just removed the crown from the king's head.

My post has a good deal more on both Bush and Suskind. And I highly recommend Eric Martin's follow-up: The Fear of Fear Itself. He expands on the fear-based dynamics and how that's fatally undermining the development of a sensible global counterterrorism strategy.

I wonder if we will ever know how large AQ was on 9/12/01. The Bush Admin has spent hundreds of billions in this war on "terror", and yet I wonder just how many true committed terrorists there were on that day willing to die in order to kill Americans.

Was is thousands, a few hundred, or maybe even less?

"What CharleyCarp is suggesting is that the pros who disagree with the Admin approach on a whole lot of things just got a big fat club they can use internally" ...nadezdha

ok, now I get it better. Hamdan good thing.
...
I partly linked this because of the short discussion with Eric Martin of what could happen with another serious event. I am no longer sure we will flip into authoritarianism; could be Bush et al couldn't handle it and the WH would meltdown.
Tho having lived thru the "Final Days" of Nixon the bureacracy just chugs along.

Nadezha, very interesting reading. I've thought for some time now that the peculiar failures of useful response on 9/11/01 itself could be explained in very large degree by the Bush/Cheney combination of being cowards and control freaks. Your piece and Eric's extend that idea into realms I hadn't thought about in that light before, but it rings true.

"all other acts and things which independent states may of right do"

-- Declaration of Independence

This seems to be the core of the issue. The provisions at stake here spoke of procedures required for a "civilized" people. The fact it is a big thing for the Supreme Court to reaffirm what should be a basic point is sad.

I think that "due process" requires "civilized treatment" to "persons" under U.S. control. It's fine if this is secured by treaty rights, statutory habeas, or whatnot, but the obligation is there. Again, I do not see this as some "liberal" or "enemy loving" thing.

States, especially after WWII, do not the "right" to do anything they want. They might have the power ... but we were to be more than that.

Crime and Punishment

Billmon corrects himself in an update, and so must I, as a matter of gentleman's honour.

"Bottom line: Justice Stevens was completely right; it was the D.C. Circuit that tried to pull a fast one." ...Billmon

Appears men without honour have been placed on the Court, and there are Democrats who are planning their impeachment.

Bob, I think you'll be interested in the new Hersh. And perhaps everyone else, too.

Also, has anyone mentioned this UPI article, and the Administration threat to try to removed Article 3 from the UCMJ? Rather large news, I think, if anything comes of it, that I'm pointing to.

I've been keeping busy with a variety of other posts, some important, some merely amusing, while not commenting here, if anyone is interested.

Hey, DaveC? Remember Afghanistan?

Anyone following the lunacy around the NY Times travel section, and why it's resulted in Times employees' addresses being posted, and their children threatened?

Commander Swift gets much press.

California's Homeland Security office proposes making lists of all Iranians in the state. Isn't it nice to see them respect their history of this sort of thing?

On the lighter side: future Google; statues strange beyond belief. Your obligatory kitten/puppy picture.

And much much more!

(Well, in the past two days I've had links from Digby, Glenn Greenwald, Mahablog, Sideshow, and elsewhere, but my old pals here seem to just ignore me unless I plug myself, which is always frustrating and discouraging, and not to mention that it makes my palms hairy, but, hey, hope everyone's having a great weekend!)

Gary--I saw that article. There was another press conference with anonymous "senior administration officials" that sounded less ominous, but it bears watching closely.

I'm pretty concerned with the congressional reaction to this. I don't THINK they'll do anything to Common Article 3 or the war crimes statute, but it's not impossible. They may try another round of habeas stripping. Specter, who was on our side during the Graham Amendment introduced a pretty terrible bill on Thursday. It bears watching very closely.

I think we have more time than last fall, but we also have approaching midterms & very easily intimidated Democrats. Could be a fight.

Ya know, Gary, for some reason I had thought the Iran Threat (Bush attacking Iran) was over.

I thought the nadezdha post was wonderful. Cheney may determine goals to a degree, but Bush determines means. "I don't do nuance" is the critical determinant of Bush administration policy.

And I hate Rumsfeld's new military, airpower and special forces. I have to go study hegemons vs empires. This choice determines domestic policy.

Despite the post title and URL, Gary is talking about statues, not statutes.

Re. Afghanistan: a live report from Kandahar from Sarah Chayes (interviewed by Leonard Lopate).

"Despite the post title and URL"

The URL is the post title, and has to be. But, yeah, I hate making typos in subject headers for precisely that reason; I can't fix them without breaking any links. Note that I didn't repeat the typo here.

Oh boy, here we go:

Lindsey Graham on Common Article 3:

The Geneva Convention aspects of this decision are breathtaking. The question for this country is should Al Qaeda members who do not sign up to the Geneva Convention, who show disdain for it, who butcher our troops, be given the protections of a treaty they're not part of.

My opinion - no. They should be humanely treated, but the Geneva Convention cannot be used in the war on terrorists to give the terrorists an opportunity to basically come at us hard without any restrictions on how we interrogate and prosecute.

WALLACE: Well, Senator Graham, given the fact that that was exactly what Justice Stevens said in his ruling, talked about the Common Article III covering these detainees, what do you do about it?

GRAHAM: Well, Congress has the ability to restrict the application of Common Article III to terrorists. Ronald Reagan in 1980 would not agree to approve Protocol I to the Geneva Convention where terrorists were given Geneva Convention protection because they're not signatories to the convention.

They're not part of the convention. Should they get the benefit of a bargain they're not part of? We can treat them humanely. We can apply Geneva Convention concepts. But the Geneva Convention Common Article III is far beyond our domestic law when it comes to terrorism, and Congress can rein it in, and I think we should.

Looks like another "all hands on deck moment for those of us who believe in the rule of law" is approaching. (That's Charley's phrase.)

"Looks like another 'all hands on deck moment for those of us who believe in the rule of law' is approaching."

And so it begins. I've updated.

Billmon;link above at 8:10

"For me, there are two critical issues in this legal wilderness, neither of which involve the courtroom procedures used to try terrorists."

The first is the threshold issue – who gets to decide who is an enemy combatant, lawful or otherwise, and on what basis." ...Billmon

To an extent I disagree with Billmon as to how the "actual terrorists" should be treated, but if I an not mistaken, the relevance of Article 3 is to the the treatment of civilians. All detainees not in uniform are non-combatants until proven by a just process otherwise.
...
"But that still leaves my second make-or-break issue: torture – that pit of shame the Cheney gang has dragged themselves, the U.S. military and the American people into."

I think this is a large part of the Bushco problem:detainees tortured, and evidence derived by torture. I suspect decent trials for most detainees, even the top al-Qaeda members, have been made impossible.

I would, as a deterrent(?) to future torture and Geneva violations, let KSM walk. Quote me. Let him walk to Peshawar, and then bomb him, but let him go.

Let him walk to Peshawar, and then bomb him, but let him go.

It might not even be necessary. You're UBL, and KSM shows up and says, 'OK Boss, what's up next?' You kiss him on the mouth, and say, 'You'll be going boating with some of the brothers, and they'll fill you in.'

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Whatnot


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