Balkinization  

Wednesday, January 30, 2008

Disdain

Marty Lederman

Senator Feingold just asked Mukasey when he would share with the Committee -- even in closed session -- the legal explanations of why the CIA techniques are not unlawful. Mukasey's response: He won't, because it's classified. That is to say: The scope and application of this federal law is so secret that not even the legislators who enacted it can be permitted to understand it. Short version: Congress can take a hike.

Comments:

Marty:

The President and Congress long ago agreed that the Intelligence Committees had sole oversight over classified intelligence gathering. The judiciary committee has no business here.

Congress has hardly been told to take a hike. The intelligence committees have been briefed on the CIA interrogation program from the beginning.

This hearing is simply grandstanding. If judiciary committee members want to be read into classified intelligence gathering, they need to get an assignment on the intelligence committee.
 

I've got a bit of my own irreverent take on this on my blog.

I welcome any "Bartesque" 'discussion' over there, and perhaps Prof. Lederman will as well.

Cheers,
 

Bart:

FISA is within the jurisdiction of the Judiciary Committee. They wrote the statute, they passed it, and they have oversight over it.

This may seem like an arcane distinction, but the Intelligence Committee tends to do everything in secret and is so interested in preserving its access to secrets that it rarely confronts the Executive Branch. Whereas the Judiciary Committee is more willing to enforce the law.

In any event, there's a FISA reform effort underway now. EVERY member of Congress is entitled to know what that statute means and how it works. They are NOT required to legislate in the dark.
 

House rules are clear that HPSCI's jurisdiction does not restrict the authority of any other committee to obtain information on intelligence-related activity that is otherwise within that committee's jurisdiction. I don't have a copy of the Senate rule handy, but I would be surprised if it was different in that regard.

I would think that the question of what legal advice OLC has given with regard to interrogation methods and the torture statutes would certainly fall within the Judiciary Committee's jurisdiction. (it doesn't seem to have anything to do with FISA though)
 

This is as Kafkian and bizarre as they come - legal memos interpreting federal law secret? Total nonsense, how on Earth law abiding people are supposed to abide if practical interpretations of federal statues are kept secret from them? Historically secret laws were used to control people!

---

As much as I think Mukasey is a great great improvement over his predecessor, his prevarications on waterboarding today makes him - and I'm very sorry but there is no other way to put it - a "legal flunky" for Cheney/Bush administration. He should be able to take a much higher stand, far above the basal needs of his principals, but he didn't. Sad, especially for an old man who has little to look forward to other than to keep his good name and reputation intact. It appears he squandered it irrevocably.

---

There were many great moments in the hearing today, one of best ones for me was when Sen. Whitehouse locked legal horns with him on the question why there is no separate investigation on waterboarding itself. Mukasey was hopeless again - no reliable information exists to even initiate a preliminary inquiry on this.

When countered that several former administration officials some from the CIA itself publicly stated that at least three people were waterboarded, that waterboarding is commonly recognized as torture by civilized people everywhere, that US statues explicitly criminalize torture at least when done outside the country he said that's not enough for him to start anything preliminary or not and started mumbling something about old secret authorizations although he wasn't willing to say what they were.

--

He is adding to the problem not subtracting from it.
 

dilan said...

Bart: FISA is within the jurisdiction of the Judiciary Committee. They wrote the statute, they passed it, and they have oversight over it.

Sounds like a congressional organizational problem to me.

The intelligence committees have sole jurisdiction over the actual agencies collecting the intelligence. Apart from the fact that foreign intelligence gathering has nothing to do with the judiciary, it is silly as a practical matter to allow a committee jurisdiction to write laws to regulate a matter over which it does not have jurisdiction.

This may seem like an arcane distinction, but the Intelligence Committee tends to do everything in secret and is so interested in preserving its access to secrets that it rarely confronts the Executive Branch. Whereas the Judiciary Committee is more willing to enforce the law.

Quite the opposite.

Because they are privy to the classified information of the actual threats faced, the actions taken to address those threats and the relative success or failure of those actions, the intelligence committees tend to act responsibly.

In stark contrast, judiciary acts like a blind partisan bull in a china store because it has no knowledge or expertise in the area of intelligence gathering.

In any event, there's a FISA reform effort underway now. EVERY member of Congress is entitled to know what that statute means and how it works. They are NOT required to legislate in the dark.

Given that Congress has no Article I power to direct intelligence gathering or assign that power to a court, the only constitutional thing they can do is largely gut FISA, which does not require members to be read into classified intelligence gathering programs.
 

mls said...

I would think that the question of what legal advice OLC has given with regard to interrogation methods and the torture statutes would certainly fall within the Judiciary Committee's jurisdiction.

1) Judiciary has nothing to do with foreign intelligence gathering. This is the job of the intelligence committees.

2) To the extent that the intelligence committees want legal advice, they have the power to consult with their own attorneys. If the Executive does not like that, tough luck. If the Executive declines to brief the committees because they consult with their own counsel, the intelligence committees can always cut funding for intelligence gathering until the Executive sees the light.

-wg- said...

This is as Kafkian and bizarre as they come - legal memos interpreting federal law secret? Total nonsense, how on Earth law abiding people are supposed to abide if practical interpretations of federal statues are kept secret from them?

The persons subject to the guidance of these memos are intelligence professionals who are read in on them.
 

Given that Congress has no Article I power to direct intelligence gathering or assign that power to a court, the only constitutional thing they can do is largely gut FISA, which does not require members to be read into classified intelligence gathering programs.

That, of course, is only true in Bartland. The real Constitution reads differently.

But even if that were correct, the Administration and the Republicans would need to get a court to issue such a ruling to oust the matter from the jurisdiction of Congress.

Until Republicans do that, members of Congress have the full right to know what the heck they are legislating.
 

Given the amount of information that the executive seems to be witholding from the legislature, perhaps it's time to review how we regulate material as classified?

Whether the judiciary committee has oversight here or not may be less important than the question: shouldn't they?
 

My understanding is that the legislative branch has oversight over the executive branch.
Period.
There are many area where the two branches have negotiated over who in the legislative branch may be "read into" an executive branch program, but the executive branch may not arbitrarily designate what the legislative branch may oversee.
There was a document recently where the executive branch tried to argue that Henry Waxman couldn't know anything about it. Wrong answer. The law concerning the program it referred to was chock-full of references about it being secret, but absolutely nothing in the law said Congress couldn't oversee it.
 

Bart,
Is it you position that anything that touches on intelligence gathering is therefor under the supervision/oversight of the intelligence committees? The OLCs and other legal options were from Justice, were they not?
 

Bart,

Your view that the President has the exclusive power to control intelligence gathering is based on his role as Commander in Chief. Do you claim that agencies such as the National Security Agency are part of the armed forces? And how do you reconcile this view with Congress' Article I power "To make Rules for the Government and Regulation of the land and naval Forces"?
 

"1) Judiciary has nothing to do with foreign intelligence gathering. This is the job of the intelligence committees.

2) To the extent that the intelligence committees want legal advice, they have the power to consult with their own attorneys. If the Executive does not like that, tough luck. If the Executive declines to brief the committees because they consult with their own counsel, the intelligence committees can always cut funding for intelligence gathering until the Executive sees the light."



1. S. Res. 400 (establishing the Senate Intelligence Committee) provides that “nothing in this resolution shall be construed as prohibiting or otherwise restricting the authority of any other committee to study and review any intelligence activity to the extent that such activity directly affects a matter otherwise within the jurisdiction of such committee.” Thus, it is clear that Judiciary can review “foreign intelligence gathering” if it directly affects a matter within the jurisdiction of the committee. Since Judiciary’s jurisdiction, as I understand it, encompasses both oversight of the Justice Department and the criminal law generally, it seems to me that the matter under review (advice given by a component of the Justice Department about the interpretation of a criminal statute) does directly affect its jurisdiction. I would be surprised if Mukasey contended otherwise.

2. I am not sure what you mean by this. There may be limits on the extent to which Congress has the right to probe the legal reasoning underlying a particular executive branch position. For example, if the executive branch says the law is “x,” I can understand why Congress might not be entitled to find out who disagreed with that conclusion and why. But surely the authority to oversee whether the executive is taking care that the laws are faithfully executed includes some ability to understand (a) what the executive believes the law to be and (b) the reasons that support the executive’s conclusion.
 

mls said...

BD: "1) Judiciary has nothing to do with foreign intelligence gathering. This is the job of the intelligence committees.

1. S. Res. 400 (establishing the Senate Intelligence Committee) provides that “nothing in this resolution shall be construed as prohibiting or otherwise restricting the authority of any other committee to study and review any intelligence activity to the extent that such activity directly affects a matter otherwise within the jurisdiction of such committee.” Thus, it is clear that Judiciary can review “foreign intelligence gathering” if it directly affects a matter within the jurisdiction of the committee. Since Judiciary’s jurisdiction, as I understand it, encompasses both oversight of the Justice Department and the criminal law generally, it seems to me that the matter under review (advice given by a component of the Justice Department about the interpretation of a criminal statute) does directly affect its jurisdiction. I would be surprised if Mukasey contended otherwise.


Generic "intelligence gathering" can can include both domestic targets (US citizens unaffiliated with foreign groups) and foreign targets (the agents of foreign groups regardless of nationality). The Fourth Amendment and other protections which Congress may enforce apply to domestic targets. However, the Fourth Amendment does not apply to foreign intelligence gathering and nothing in Article I grants Congress the power to direct or limit foreign intelligence gathering.

Consequently, Judiciary could theoretically have jurisdiction and oversight over intelligence gathering against domestic targets. They have no subject matter jurisdiction over foreign intelligence gathering.

BD: 2) To the extent that the intelligence committees want legal advice, they have the power to consult with their own attorneys. If the Executive does not like that, tough luck. If the Executive declines to brief the committees because they consult with their own counsel, the intelligence committees can always cut funding for intelligence gathering until the Executive sees the light."

2. I am not sure what you mean by this. There may be limits on the extent to which Congress has the right to probe the legal reasoning underlying a particular executive branch position. For example, if the executive branch says the law is “x,” I can understand why Congress might not be entitled to find out who disagreed with that conclusion and why. But surely the authority to oversee whether the executive is taking care that the laws are faithfully executed includes some ability to understand (a) what the executive believes the law to be and (b) the reasons that support the executive’s conclusion.


Congress is not a collection of potted plants waiting for the Executive to provide them guidance as to what Congress' own laws mean. Congress simply needs to know what the Executive is doing and then Congress can make its own determination as to whether those actions are currently illegal or need to be made illegal.

In reality, these hearings have nothing to do with seeking legal counsel and everything to do with seeking partisan advantage by finding dissenting opinions in the Executive to embarrass a President of the opposite party. This is a pathetic exercise.
 

Bart

I am not quite sure what point you are trying to make. Are you contending that the definition of “intelligence activities” in S. Res. 400 doesn’t include “foreign intelligence”? If so, this is clearly wrong. The resolution defines “intelligence activities” as “the collection, analysis, production, dissemination, or use of information which relates to any foreign country, or any government, party, military force, movement, or other association in such foreign country.” (Investigation of US targets unaffiliated with foreign entities would not be covered by this definition, and I believe this is generally true of the definition of “intelligence activities” in the US Code as well).

You also seem to be saying that Congress has no legislative power with regard to foreign intelligence (ie, Congress has no constitutional power to outlaw waterboarding or torture of foreign detainees). Is that really your view? I thought your position was that the Senate Intelligence Committee, not Judiciary, had jurisdiction over this question.

The original Yoo memo did make an argument along the lines that you are suggesting, but the administration appears to have retreated from that position. In any event, claims that the Congress lacks legislative authority are a weak basis for denying it information. Even if Congress couldn’t constitutionally amend the torture statute, it could defund the CIA, OLC, etc. or for that matter it could propose a constitutional amendment. (For the same reasons Congress can investigate things like presidential pardons, even though it lacks authority to restrict the pardon power).

As for your view that the hearings are ill-advised and politically motivated, that’s fine. My point had to do with explaining the proper understanding of the committee’s authority and jurisdiction. It had nothing to do with the motive or wisdom of the committee’s actions.
 

mls:

I am not quite sure what point you are trying to make. Are you contending that the definition of “intelligence activities” in S. Res. 400 doesn’t include “foreign intelligence”?

Neither Article I or Article III grants Congress or the Judiciary the power to direct or limit Executive foreign intelligence gathering. Consequently, Congress may not constitutionally enact criminal laws seeking to do so, DOJ may not constitutionally enforce such laws and the Courts have no jurisdiction over this area. Because the judicial system does not apply to foreign intelligence gathering, then the Judiciary Committee simply does not have any reason to conduct oversight in this area.

The fact that the Judiciary Committee assigned itself oversight over this area and is poaching on the Intelligence Committee's turf is an internal Senate problem. The Executive is not playing this game and is not providing Judiciary with classified information no matter how much they grand stand. The Executive made a deal with Congress to provide classified materials to one set of committees - Intelligence. Functionally, Judiciary has as much business overseeing foreign intelligence as they have overseeing agricultural matters.

You also seem to be saying that Congress has no legislative power with regard to foreign intelligence (ie, Congress has no constitutional power to outlaw waterboarding or torture of foreign detainees). Is that really your view?

Article I provides Congress with the power regulate the treatment of Captures. To the extent that this area overlaps with intelligence gathering, the proper venue for oversight is the Intelligence Committee and not Judiciary. Intelligence has the expertise on and access to the entire scope of classified intelligence gathering so they can make informed decisions. Judiciary has no expertise in this area and would be operating blind and without context because it does not have access to the entire scope of classified intelligence gathering.

If it were given access to the entire scope of classified intelligence gathering, Judiciary would simply be a clone of Intelligence. This makes no functional sense. Moreover, it makes it twice as likely that the classified materials would be compromised because the more folks read in on a secret, the more likely it will be leaked. This is why only the top leadership of Congress and the Intelligence Committees are informed of the most sensitive compartmentalized need to know information.
 

This makes no functional sense

Baghdad, the fact that you don't think it's a good idea is completely irrelevant.
 

I have to say I find the whole idea that the Founding Fathers left certain areas under the sole and exclusive authority of the executive branch to be extremely dubious!!
Is there anything in the Federalist or the history of Constitutional jurisprudence that suggests any such thing?
 

I have to say I find the whole idea that the Founding Fathers left certain areas under the sole and exclusive authority of the executive branch to be extremely dubious!!
Is there anything in the Federalist or the history of Constitutional jurisprudence that suggests any such thing?


Sure. There's the power of the President to fire officers; the power to receive ambassadors; the power to serve as CinC; the power to fill up vacancies during recess; the power to commission all officers; and the power to convene Congress.

In terms of unrestricted power, that's it, however. And even in some of these cases, Congress can pass legislation which affects the power. For example, Congress can and does prescribe the form for commissioning officers.
 

Mark,

I think you over state the powers of the President granted by the Constitution. I know of only one unchecked power and that is the power to grant pardons.

Where does the Constitution does it:
1) grant the power to fire and/or dismiss anyone ?
2) grant the power to convent the Congress?
3) to commission [military] offices?

CinC of the Army & Navy of the United States is an office, not a power.

The receiving and treating with ambassadors of foreign government is a duty of the President not a power.

So we are left with the power to make "recess" appointments and these appointments are limited to the duration of the current session of the Senate.

Sorry to be such a nitpicker, but when we are talking about the Constitution so "accuracy counts", don't you think?
 

Where does the Constitution does it:
1) grant the power to fire and/or dismiss anyone ?
2) grant the power to convent the Congress?
3) to commission [military] offices?


The question was a little broader than whether the power could be found in the Constitution. Rich asked whether there was "anything in Constitutional jurisprudence". Given that standard, the President has power to dismiss officers. Here's Madison describing the situation to Jefferson:

“[Two pending bills] gave birth to a very interesting constitutional question: by what authority removals from office were to be made. The Constitution being silent on the point, it was left to construction. Four opinions were advanced: 1. That no removal could be made but by way of impeachment. … 2. That it [was left to] the Legislature, to be disposed of as might be proper. … 3. That it was incident to the power of appointment, and therefore belonged to the President and Senate. … 4. That the Executive power being generally vested in the President, and the Executive function of removal not expressly taken away, it remained with the President. To this [i.e., to number 4] was objected [that the Senate participated in the appointment and therefore should in the removal], and the danger of creating too much weight in the Executive scale. After very long debates the 4th opinion prevailed, as most consonant to the text of the Constitution, to the policy of mixing the Legislative and Executive Departments as little as possible, and to the requisite responsibility and harmony in the Executive Department.”

The Supreme Court confirmed this in Myers v. United States, 272 U.S. 52 (1926).

The power to convene Congress is in Art. II, Sec. 3.

The power to commission officers is in the same clause.

CinC of the Army & Navy of the United States is an office, not a power.

Agreed. But whatever power the CinC has is power the President alone can exercise. No one else can be CinC.

The receiving and treating with ambassadors of foreign government is a duty of the President not a power.

It's a little more than that. The power to receive includes the power NOT to receive. The President can thus preclude ambassadors.

the power to grant pardons.

I can't believe I left that out.
 

rich said...

I have to say I find the whole idea that the Founding Fathers left certain areas under the sole and exclusive authority of the executive branch to be extremely dubious!! Is there anything in the Federalist or the history of Constitutional jurisprudence that suggests any such thing?

Sure.

Lets start with Article II:

Section 1. The executive power shall be vested in a President of the United States of America.

Because Articles I and III do not provide any executive power to the other branches, The President is the sole executive.

Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States...

CiC is more than a hollow office as some here have suggested. The President has all the powers normally associated with a commander of military forces. While Article III does not grant the courts any power over the military or foreign policy, certain enumerated sections of Article I do grant Congress powers in these areas.

To determine the scope of those powers, we need to go to Article I:

Section 1. All legislative powers herein granted shall be vested in a Congress of the United States...

Unlike Article II's broad grant of executive and CiC powers to the President which are not limited to enumerated powers, Article I expressly limits the powers of Congress to those specifically enumerated in Article I.

Consequently, the President plainly has plenary CiC power over all areas not expressly granted to Congress in Article I. The President may use his CiC powers in areas covered in Article I when Congress has not acted. However, when Congress acts pursuant to a specifically enumerated Article power, the President's general CiC power gives way.

This plain reading of the text of Articles I and II has been long recognized by the courts. For example, in UNITED STATES v. CURTISS-WRIGHT EXPORT CORPORATION, 299 U.S. 304 (1936), the Court counseled:

In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, 'The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.' Annals, 6th Cong., col. 613. The Senate Committee on Foreign Relations at a very early day in our history ( February 15, 1816), reported to the Senate, among other things, as follows:

'The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. For his conduct he is responsible to the Constitution. The committee considers this responsibility the surest pledge for the faithful discharge of his duty. They think the interference of the Senate in the direction of foreign negotiations calculated to diminish that responsibility and thereby to impair the best security for the national safety. The nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends on secrecy and dispatch.' 8 U.S.Sen.Reports Comm. on Foreign Relations, p. 24.

It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an [299 U.S. 304, 320] exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations-a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrassment-perhaps serious embarrassment-is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Representatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty-a refusal the wisdom of which was recognized by the House itself and has never since been doubted. In his reply to the request, President Washington said:

'The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely [299 U.S. 304, 321] impolitic; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which that body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent.' 1 Messages and Papers of the Presidents, p. 194.

 

"Bart" DePalma cut'n'pastes Curtiss-Wright.

Wow. Curtiss-Wright challenged the Congressional proclamation as being an unconstitutional delegation of power to the president as to when and how to embargo Bolivia.

That all that "Bart" quoted was pretty much dicta; just extra reason why the Congressinal resolution ought to be upheld, and the president's actions pursuant to that allowed.

Here's the money line, which sums up their holding after the discussion that "Bart" cut'n'pasted along with other discussion:

In the light of the foregoing observations, it is evident that this court should not be in haste to apply a general rule which will have the effect of condemning legislation like that under review as constituting an unlawful delegation of legislative power.

Id at 322.

Pretending that Curtiss-Wright establishes some autonomous authority, independent of Congressional action (much less oversight), is to misread the actual case holding horribly.

"Bart", could you do us a favour and stop misciting law? Thanks.

Cheers,
 

Actually, I like this line:

For his conduct he is responsible to the Constitution. The committee considers this responsibility the surest pledge for the faithful discharge of his duty.

How can someone be faithful to a simple piece of paper.
 

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A holy church, rings, a bouquet, a 3-floor wedding cake, lace wedding dress
champagne, and the moving promise “ I do”, make up the happiest moment in one’s life. Then it is the wedding.
lace wedding gowns
A gorgeous wedding dress has been inside a girl’s dream since she was five years old. It is widely said that the bride is the most beautiful woman all over the world.
Bridal gowns vary in different parts of the world. For example, cheap wedding dresses plus sizein traditional Chinese culture, the color red is regarded for centuries as the symbol of good luck; while in the Occident, wedding dresses 2012 a full-length white wedding dress is always associated with romance and sanctity. But, with the globalization, wedding dresses tend to be alike in the whole world.
 

A holy church, rings, a bouquet, a 3-floor wedding cake, lace wedding dress
champagne, and the moving promise “ I do”, make up the happiest moment in one’s life. Then it is the wedding.
lace wedding gowns
A gorgeous wedding dress has been inside a girl’s dream since she was five years old. It is widely said that the bride is the most beautiful woman all over the world.
Bridal gowns vary in different parts of the world. For example, cheap wedding dresses plus sizein traditional Chinese culture, the color red is regarded for centuries as the symbol of good luck; while in the Occident, wedding dresses 2012 a full-length white wedding dress is always associated with romance and sanctity. But, with the globalization, wedding dresses tend to be alike in the whole world.
 

A holy church, rings, a bouquet, a 3-floor wedding cake, lace wedding dress
champagne, and the moving promise “ I do”, make up the happiest moment in one’s life. Then it is the wedding.
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A gorgeous wedding dress has been inside a girl’s dream since she was five years old. It is widely said that the bride is the most beautiful woman all over the world.
Bridal gowns vary in different parts of the world. For example, cheap wedding dresses plus sizein traditional Chinese culture, the color red is regarded for centuries as the symbol of good luck; while in the Occident, wedding dresses 2012 a full-length white wedding dress is always associated with romance and sanctity. But, with the globalization, wedding dresses tend to be alike in the whole world.
 

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