Balkinization  

Monday, August 20, 2007

Parsing the Vice President's Careful Words

Marty Lederman

The Vice President's office sent Pat Leahy this letter today, asking for an extension of time to respond to the Senate Judiciary's subpoena for documents relating to the NSA's warrantless surveillance between 2001 and 2007.

I think it's fair to predict that, no matter how many extensions it receives, the Administration will not provide the Senate with the requested documents. Senator Leahy is threatening contempt citations.

But putting those questions aside for a moment, today's letter is revealing in at least three other ways.

First, it lists the dates on which the President issued authorizations for the NSA program -- 43 of 'em, from October 4, 2001 through December 8, 2006. Most interesting is the authorization of March 11, 2004. That was, as you'll recall, the authorization that the President issued the day after the infamous scene at the Ashcroft hospital bed, even after DOJ had concluded that it would be illegal -- the authorization that precipitated the threatened resignation of 30 or so high-level DOJ officials. The VP's letter notes that the 03/11/04 authorization was "amended" by presidential memoranda of March 19th and April 2d. Presumably, those amendments were made in order to apply the limitations required by the alternative legal justification offered by Jack Goldsmith and OLC after the fateful hospital visit. We've previously surmised that under the post-3/11 program, the surveillance was limited to communications with at least one party overseas, and with at least some attenuated connection to Al Qaeda -- requirements that may well not have been in place for the first two-and-a-half years of the surveillance.

Second, the letter lists the dates of no fewer than ten DOJ memoranda, beginning on October 4, 2001 (when the program started). The first six memoranda, presumably penned by John Yoo, were issued before Jack Goldsmith took office at OLC. What I presume was Goldsmith's first memo was on March 15, 2004, four days after the President ignored OLC's legal objection, and four days before the program was "amended" (presumably to track Goldsmith's new legal theory). The final memo, dated February 4, 2005, was issued after Goldsmith left office.

Finally, the letter lists numerous reasons why the VP's office might not release the requested documents. The second of those reasons is this:

The Office of the Vice President reserves the limitations on congressional inquiries set forth in Barenblatt v. United States, 360 U.S. 109 (1959), which makes clear that the power to inquire extends no further than the power to legislate.
Now, I happen to think that this so-called "limitation" on congressional inquiries is not nearly so clear: Many of the earliest legislative investigations were not for the purpose of designing statutory amendments, but were instead "only" to investigate wrongdoing or malfeasance in the Executive branch; and the better view is probably that Congress has at least some such broad investigative power, unrelated to its lawmaking functions. (The Court has even indicated that Congress has an important interest in Executive branch transparency simply in order to facilitate "the American people's ability to reconstruct and come to terms with their history." Nixon v. Administrator, 433 U.S. at 452-453.)

But even if it were the case that Congress can only investigate in areas where it can legislate, . . . so what? Such an objection would only be meaningful in the context of this subpoena if there were some question about Congress's power to legislate with respect to the relevant Executive branch conduct.

So think about what the VP's letter is suggesting -- that perhaps Congress can't legislate on the topic of the government's domestic electronic surveillance!

This is, I think, a fairly audacious assertion to be making at this late date. After all, just a few days ago the President himself insisted that Congress legislate forthwith on this very subject, and then showered praise on Congress for enacting the "Protect America Act," without suggesting any constitutional disability.

What the letter is getting at here, of course, is the Vice President's longstanding view that FISA is unconstitutional, and that Congress simply can't regulate the Commander in Chief's collection of intelligence. In other words, Who Needs the Protect America Act?: Nothing would or could stop us from warrantless surveillance, anyway.

Indeed, the Administration makes no bones about the fact that it continues to assert a constitutional prerogative to ignore statutes restricting the Commander in Chief's authority -- including FISA and the Protect America Act. In yesterday's New York Times, Eric Lichtblau and James Risen wrote about how the Administration, flush with success it getting Congress to capitulate entirely, refuses to concede being bound even by the minimal restraints of the amended FISA statute:

At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress.

At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting.
What a surprise.

Comments:

How many times do we see this:

At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress.

The administration requires certain language in a law, gets it from Congress, then proceeds to state that it can ignore it if wants/needs/feels like it (all in the name of his Presidential/Constitutional/Dictatorial perorgative.

If they are this contemptuous of our Constitution, Congress, and the electorate, I would not be surprised to hear a future signing statement ignoring the 2008 presidential election because the results were found to be inconsistent with the president's constitutional duty to protect the country. It is becoming blatantly obvious that we have more to fear from this administration than from any other foreign or domestic enemy.
 

Pure speculation on my part, but an alternative to a "change in limitation (i.e., one party al Qaeda) changes the legal analysis."
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I've speculated that the change in heart is the result of combining the AUMF with FISA. The government cites the Hamdi case in conjunction with this, and the Hamdi case was argued and decided in a 2004 timeframe.
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In other words, it may be that the pre-March 2004 legal rationales do not refer to the AUMF or any other Congressional approval.
 

I agree that it's also good speculation that pre-March 2004, the surveillance included warrantless acquisition of purely domestic communications. Perhaps it does, to this day.

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As a matter of being effective at stopping terrorism, I would think that purely domestic communications would be at least as important as international communications, and probably more important if the communications are for the purpose of coordination of attack timing and other logistics.

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It struck me as a stupid limitation (stupid as in failing in a practical way), to say "we are limiting our 'agile' warrantless surveillance to international communications."

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The line may have been thought useful to tamp down legal objections, or to avoid a political backlash if the government admitted it was engaged in unfettered spying -- although a substantial number of people have no problem with unfettered warrantless spying, holding that such activity is part of what it will take to address the terrorism scourge.
 

To your broader point, that of President Bush asking for, then praising Congress for enacting the PAA, I remain a cynic.
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I think the point of the law is to fool the public into thinking the government follows the law. In fact, the exposure of the TSP was decried as illuminating for our terrorist enemy, that there might be surveillance outside of statutory boundaries. In other words, the problem was that the statutory law would lose its function of misleading the terrorists.
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Seeing as how the terrorists mingle freely within the domestic public, it then becomes necessary to fool the public as well. For their own good, of course.
 

JaO:

In our ongoing debate over my contention which you dispute that the Executive shares my position that Congress has no power to direct Exdecutive foreign intelligence gathering, I offer Professor Balkin's analysis.
 

Professor Balkin:

So think about what the VP's letter is suggesting -- that perhaps Congress can't legislate on the topic of the government's domestic electronic surveillance!

The Truong line of cases indicates that the line between domestic and foreign intelligence gathering for 4th Amendment purposes is determined by the target, not the geographical location of the intercept. The 4th Amendment does not require warrants for intelligence gathering in the US against agents of any nationality working for foreign powers.

Under this bright line rule, the TSP would be a foreign intelligence gathering operation even if the geographical location of its intercepts are in the US.

Consequently, because no provision of Article I provides Congress the power to direct or criminalize foreign intelligence gathering, the Senate Judiciary Committee has no legislative or criminal investigation interest in the TSP docs. At most, the Intelligence Committees would have oversight of the TSP to determine what Congress is funding and have reportedly received all requested information.

This is, I think, a fairly audacious assertion to be making at this late date. After all, just a few days ago the President himself insisted that Congress legislate forthwith on this very subject, and then showered praise on Congress for enacting the "Protect America Act," without suggesting any constitutional disability.

The President is simply being nice after Congress nearly completely surrendered on the issue.
 

Earth to Bart! Neither JaO nor Professor Balkin have posted on this thread.
 

-- The Truong line of cases indicates that the line between domestic and foreign intelligence gathering for 4th Amendment purposes is determined by the target, not the geographical location of the intercept. --
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To which I would add, that the citizenship of the target is also irrelevant, when the object is foreign intelligence gathering. See Mr. Humphrey, another party in the Truong investigation.
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And as numerous courts have noticed, the categories of "for foreign intelligence" and "to thwart criminal enterprise" are largely overlapping -- there is no "line between them." Under the rule of FISCR's "In re: Sealed Case," a law enforcement agency can't be prohibited from driving a primarily law enforcement investigation, just because a significant purpose of the investigation is foreign intelligence. As long as a significant purpose of surveillance is denominated "foreign intelligence," law enforcement is free to direct the surveillance activity, and it need not obtain a warrant in order to do so.
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The issue becomes "what additional fact or factor must be present, in order for a criminal enterprise to also be a matter of foreign intelligence?"
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I'm not intending to make a judgement call here, just paraphrasing the court cases as I see them.
 

Although the letter from OVP hints at Cheney's position that FISA is unconstitutional, and administration officials bravely assert the President's Article II powers in a meeting (as they have done in recent congressional testimony), I would be shocked if the administration stakes out this position squarely in any court case.

In fact, the entire DOJ strategy all along has been to make such arguments only where they cannot be resolved, but avoid making them where they could be settled -- in court. Administration lawyers deliberately avoid teeing up this question for judicial review, because if it were presented squarely to SCOTUS they would probably lose by at least 8-1.
 

Comey, for one, did not have access or knowledge about the existence of the 6 prior memoranda:

Comey's SJC written testimony asserts that he was unaware of the existence of any legal memoranda prior to March 10, 2004.

d. Did the response include any legal opinion or memorandum from the White House, or any other federal agency related to the classified program? If so, please identify what individual(s) or entities prepared and reviewed the legal opinion or memorandum.
I am not aware of any other such memorandum or legal opinion prior to March 10, 2004. Some time shortly after March 10, I received a memorandum from White House Counsel Gonzales.

Does this Comey statement indicate that the DOJ Lawyers charged with reviewing the legality of the NSA-driven Surveillance Program were not given existing memoranda on the legality of The Program when they were conducting their analysis?
Is the conflict between the Comey Testimony and the newly disclosed existence of DOJ memoranda evidence of the "compartmentalization" that was hindering effective review, and the source of Ashcroft's March 10, 2004 complaint noted in the Mueller notes?
 

drational: I have to imagine that in that case Comey understood the Senate's question to refer to memos from *outside* DOJ. He could not have been unaware of his own OLC's previous memos on the subject.
 

Bart: This President has NEVER been nice...or decent, or ethical, or forthright, or compassionate, or statesmanlike in any way. He's a coward and liar by practice and temperament, and any apparent concessions he makes are born of fear rather than largesse.
 

Robert, Bart, Mark, et al.: Please, let's keep the conversation substantive, and on-topic. Thanks
 

Of course. Please pardon me.
 

b. Why was the review started? Was the review started at the request of any individual
or entity? If so, who or what entity?
I believe it was started at the initiative of Jack Goldsmith and Patrick Philbin.

[Does this mean that if the review was started by Goldsmith, he for sure had access to prior Yoo memos?]


Did any individual or entity from outside DoJ participate in the review? Were there
any individuals from the White House, the Department of Defense (“DoD”), or other
federal agency who participated in the review? If so please identify those individuals
and/or entities?
I believe Goldsmith and Philbin coordinated their effort with lawyers in the
intelligence community.

[So the review did not include help from the WHO or OVP? What else was off limits?]

Your take on the wording of Comey's response is probably correct, but I still wonder whether the program was so classified and compartmentalized that the analysis could not be performed appropriately....
 

Marty Lederman said...

Robert, Bart, Mark, et al.: Please, let's keep the conversation substantive, and on-topic. Thanks

To start, I apologize for confusing you with Professor Balkin in my second post. The hazard of jumping between thread by different professors.

As to topicality, my replies directly addressed the quoted contentions made in your lead post. If you have a different idea of staying "on topic" to which you would like me adhere, please clarify.
 

-- the letter from OVP hints at Cheney's position that FISA is unconstitutional --
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I don't see a way to reach a conclusion either way, in the abstract.
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If the case was a spy, e.g., Aldrich Ames, and the government had reason to suspect foreign intelligence ramifications (e.g., feeding Ames a specific fact and having it turn up at a foreign mole, etc.), then my prediction is that the court would find FISA unconstitutional to the extent it prohibited THAT surveillance without a court order.
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I can imagine hypothetical fact patterns in the other direction, something tantamount to no basis whatsoever to suspect a foreign intelligence surveillance -- then the government bootstrapping evidence for a domestic criminal prosecution based on no warrant "foreign intelligence"-justified search. This wouldn't result in finding the statute unconstitutional, but would be a search without probable cause, and no warrant. Reasonable under the fourth? I suppose that depends on the court's attitude about the need for protective surveillance in this terrorist-infested country of ours.
 

Fraud guy: If they are this contemptuous of our Constitution, Congress, and the electorate, I would not be surprised to hear a future signing statement ignoring the 2008 presidential election because the results were found to be inconsistent with the president's constitutional duty to protect the country.

I have to agree that the underlying logic here is very troubling. If "the power to inquire extends no further than the power to legislate," then there is quite the potential for abuse.

Consider the way that the VP snubbed any attempt at oversight by the Information Security Oversight Office, claiming exemption by dint of a hybrid status. The ISOO is part of NARA, the same "independent" federal agency that administers the electoral college. The idea that the executive shouldn't be restricted by an independent agency was raised in another post about the Fed--I wonder how that changes if you plug in NARA?

Of course, we expect that the executive couldn't stay in power long even if they did assert such a thing (i.e. "we must stay for another term to win the war"), and we rely on the good faith of our politicians to move on and allow the next government to take power. Still, one has to wonder--given this administration's history of testing the limits to their actions and pushing the boundaries of permissible behavior--what procedures and traditions remain sacrosanct even for them. It's difficult to talk about lines in the sand that they won't cross, especially when they go out of their way to tell us that sand isn't binding on the movement of their feet.
 

I see drational's point about compartmentalization in tandem with JaO's and think it best to scotch efforts to account for all the administration's actions under a single legal theory.

We've been wrestling with conflicting indicators about how legalists within the White House, the DOJ and the Intelligence Community regard the Protect America Act. These include:

(1) the press for the new law,
(2) the refusal to drop Article II rationales in response to Bruce Fein and, now, in the Cheney letter,
(3) the possibility of using 105A without going through 105B,
(4) the odd timeline for vetting a surveillance program, and
(5) the motion before Judge Walker that treats 105B as the be-all and end-all of the Act (to stand Marty's phrase on its head).

If there's one theory behind all these elements, it's not a legal theory; it's a political view of executive power that uses legal theories opportunistically with the legal views of others variously anchored in institutional settings in mind. The less polite term for this is "power grab."

A mainstay of such attempts is the ability to go this way or that depending on how events unfold and others with political power react. Thus, one gets only so far positing a master plan. It directs us away from the power package, from a welter of tools left for another day.

One also gets only so far by looking for theoretical consistency on a legal level however abstract. Notice that Cheney's letter invokes anew the idea that he is a fourth branch. It was supposedly withdrawn when the OVP faced a funding cutoff. Yes and no.

We also kid ourselves in looking for a Rubicon whose crossing switches over into a new political reality. (The Rubicon actually meant something in Roman political culture.) If there's bad news ahead and history yet beyond it, the debates will fasten onto a variety of headwaters, mostly underground. A sewage system is a more fitting image.

If I had to put all of the connivances into a single brain, I would agree with JaO and choose Addington. Yet it's equally important to see that soldiers need different marching orders within a truer working picture.

Here compartmentalization comes into play. People need to be able to say different things at different times to further any grand strategy. And while obfuscation allows individuals not to be bound by things they've said, there are limits to what one can get away with, as Gonzales's stumblings show and as the decision not to allow White House officials so much as appear before Congress tacitly acknowledges.

I'd submit the motion before Judge Walker as a case in point. It could have been penned by persons who, if they knew at all about the 105A loophole, were convinced it would not be used. (SEC disclosure rules similarly allow companies not to divulge legal loopholes once legal is convinced they won't be used.) As supporting evidence for this we have Ashcroft's complaint to Gonzales that his people were being kept in the dark. For that matter, we know that Bush himself is kept from information he'd prefer not to see.

A public corporation will map out a business strategy in similar ways, dealing with competitors, public relations, potential lawsuits and disclosure rules, and its own legal and accounting departments. These are dealt with in different but overlapping ways in furtherance of business. In a world in which people can take the money and run, even the conventional bottom line is not always the true bottom line.

But, to keep it political, I think "radical," in Sidney Blumenthal's sense, is not a bad term for what's going on.
 

pms_chicago,

I have rethought my position somewhat after a discussion at digby, based in part at the usual capitulation of the Democrats to the wishes of the White House (and the uselessness of that capitulation that we are discussing here). I an drawing parallels to the fight to capture the egg of the sooty tern, and the destructive use of resources to capture the symbolic chieftanship which will just pass to another after the next contest. Bushco may acquiesce to the next Democratic occupant of the White House, because the spoils will still be divided, and the game will continue to the next round.

I think casual observer nails it in his post above, in that this is all political use and abuse of legal theory in order to obtain political ends. I serve in a compliance role in my company, and part of my job there is to review and state what is allowed by law. You get pressure to interpret the law to allow particular goals, but my idea of compliance is to find what the law/regulation requires and allows, and then work to that. It doesn't make me popular, but it does insure that we can market with a clear conscience and avoid legal issues (and I have yet to be reversed by our legal counsel on a decision).
 

Interesting that the OVP relies so heavily on Barenblatt, because reliance is so misplaced. The Barenblatt holding supported extremely broad Congressional investigatory authorities. Harlan's statement regarding their limitation was mere dicta.

"Key Notes" are for kids.
 

I think casual observer nails it in his post above

I think you meant occasional observer. It pays to keep in mind that George W. Bush is our first MBA president.

I'd be curious to know if you've ever run into an SEC disclosure issue centering on a contract term containing a loophole that an issuer secretly knows it could use and would use as a last resort if things went sour, but decides it doesn't have to disclose it in filings because it's unlikely ever to be used and because materiality is in part a function of probability.

Perhaps the government's motion before Judge Walker making light of 105A can be seen in some such way. I'm not sure, but I wonder.
 

occasional observer,

I apologize for the confusion; both you and casual have made excellent arguments here.

I have generally worked for non-traded, closely held corporations, and compliance issues I have been consulted on have centered on payment acceptance (Reg E, Z, TSR, and card association rules) including ID breach issues, not overarching corporate governance. That said, there are cases where judging the probability of occurrence strongly influences handling of disclosure notification procedures. I haven't read through the FISA changes to comment further.
 

This government of one man and not of laws became inevitable the day Andrew Jackson defied the Supreme Court and got away with it.

We need to amend the Constitution to give the Court the power to fire a president who disobeys one of its orders.
 

Oh, please! You think very many Democrats are willing to give the Court that ruled on Bush v. Gore the power to "fire" a President?!
 

BTW: every time I see Bruce Fein's name nowadays, it has to include "a Justice Department lawyer in the Reagan administration" -- how I wish the press would seek out comment from other Reagan Justice Department laywers to counter-balance -- but, does anyone think that Benedict Arnold was constantly referred to as "a decorated hero in the Capture of Fort Ticonderoga and the Battle of Saratoga" once he turned redcoat?
 

Professor Phillip Bobbitt provided a counterpoint argument in the NYT today which is worth reading.
 

From Bobbitt's letter:

The statutory change is unnecessary, I suppose, if you believe that there is in fact no real threat, that it’s all hype by the White House to expand its powers — presumably to some other end — and that all we have to fear is fear itself. Doubtless, some people do believe this. If the editorialists and columnists in the news media make this assumption, they should frankly say so (and hold their breath until the next attack).


and

One good reason not to want popular politics to guide such decisions arises when the public is not well-informed. Partly this can be laid at the door of the incumbent president, the Great Miscommunicator. But mainly it lies with those people who don’t bother giving reasons, don’t explain or give arguments, who prefer to traduce the people with whom they disagree by attacks on their characters, which are presumed to be insufficiently stalwart.

Very illuminating. It seems that the poorly misguided people (including the head of the ABA) are not informed of why this is necessary. But it is not only the (minor) job of the President to explain why it should be necessary, but also the (major) job of the people who oppose it to explain why it is not. But when the whole argument is shrouded in fear ("the next attack") and secrecy ("national security interest") and the rush to pass enabling legislation (that was of no concern for months and years while what we know of the program was running) on the one side and best guess arguments based on previous behaviour by the administration on the other, of course you are going to have insufficient explanation.

Let's lay it all out, talk it out in public, and make a decision. Otherwise, to claim that we can't have legitimate and informed public opinion is specious at best. Not that it matters, especially when days after signing the legislation, the President advised that this oh so very important legislation may be ignored anyway if he sees fit. Law--outdated as soon as it is written; constitution--scrap of paper; democracy--lets spread it around.

One last thought. I have found that generally, laws are meant to be strategic, not tactical. Tactics change much more rapidly than strategies. If the President submits a law to Congress that he would like passed, and then shortly thereafter declares that it may be useless, it is because that he is trying to apply a tactical effect instead of a strategic doctrine. Which makes sense, as he is about as good at strategy as he was at running businesses.
 

Prof. Philip Bobbitt writes [in the N.Y. Times article]:

Once linear, analog, point-to-point communication has been replaced by the disaggregated packets of the Internet, two people talking to each other in Europe could find their conversations going through American switches....

And circuit-switched data too. SFW? That isn't the problem with the pre-amendment FISA. Interception could be done here (if convenient) for such calls and communications under the old FISA.

... It also became difficult to determine the true origin of any communication that was routed through the United States....

It's generally not as hard as one would think (and as the proponents of the new wiretap laws insist, as a reason for loosening the restrictions). And if it's a problem determining where a person is (due to anonymisers, NATing, etc., then it is just as much of a problem determining who a person is. Once you have that difficulty, is the solution to permit tapping of anyone and eveyone unless you 'know' they're a good guy (and even that doesn't solve the problems)....

... If a terrorism suspect in Pakistan is having conversations with someone on a computer with a New York Internet protocol address via a chat room run by an Internet service provider in London, where exactly is the intelligence being collected? If the answer is the United States simply because the servers are here, of what possible relevance could that be to the protection of the rights of Americans?

The real issue isn't where the tap is taking place. It's who you're allowed to tap w/o a court order. Had they fixed the (admittedly irrelevant) geographical clause concerning intercept location, but kept the rest of FISA, I would have been happier. I think the only reason for a geographical intercept location clause was that this might have been a compromise concerning the likelihood of intercepting domestic parties (and thus the amount of minimisation effort needed) when tapping here or abroad, back in 1978.

Cheers,
 

More Prof. Bobbitt:

One good reason not to want popular politics to guide such decisions arises when the public is not well-informed. Partly this can be laid at the door of the incumbent president, the Great Miscommunicator. But mainly it lies with those people who don’t bother giving reasons, don’t explain or give arguments, who prefer to traduce the people with whom they disagree by attacks on their characters, which are presumed to be insufficiently stalwart.

Isn't that last sentence mostly redundant of the second one?

But I'd note a bit of anti-democratic sentiment in the first sentence: "Trust us, we're from the gummint.... Now be a good sheeple and move along, move along."

Cheers,
 

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