Balkinization  

Thursday, June 19, 2008

Well, That'll Show 'Em!

Marty Lederman

By all accounts, the congressional Democrats have almost entirely capitulated to the White House on FISA reform: "The proposal — particularly the immunity provision [for telecoms] — represents a major victory for the White House after months of dispute. 'I think the White House got a better deal than even they had hoped to get,' said Senator Christopher S. Bond, Republican of Missouri, who led the negotiations." (Just imagine what the bill would look like if the President had not systematically violated the law for several years, had his Attorney General and others consistently lie to Congress about it, and had approval ratings north of 25%!)

But hey, the Dems got something really, really big in return for giving the Administration over 100 pages of concessions:

Perhaps the most important concession that Democratic leaders claimed was a reaffirmation that the intelligence protocols were the “exclusive” means for the executive branch to conduct wiretapping operations in terrorism and espionage cases. Speaker Nancy Pelosi had insisted on that element, and Democratic staff members asserted that the language would prevent Mr. Bush, or any future president, from circumventing the law. The proposal asserts “that the law is the exclusive authority and not the whim of the president of the United States,” Ms. Pelosi said.
Note the key word: reaffirmation. The Democrats worked long and hard to include in the bill a provision (stating that FISA and other specified statutes are to be "the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted") that is, for all intents and purposes, a reenactment of the current 18 U.S.C. 2511(2)(f), which has been the backbone of FISA for 30 years.

The options, apparently, were to have this key provision stripped from FISA, as the Administration wanted (which would have made an incredibly permissive bill basically hortatory), or to retain it and "reaffirm" it. After a long, hard battle, the Dems prevailed on that one. Whew. Close call, that.

My favorite bit, however, is the Pelosi expectation that "the language would prevent Mr. Bush, or any future president, from circumventing the law." Yeah, right -- just as it "prevented" President Bush from authorizing wholesale violations of FISA from 2001 until 2007. (Note to Speaker Pelosi: President Bush's official view, vigorously defended by the Department of Justice, is that the "exclusive means" provision is unconstitutional, and can therefore be disregarded. FYI) [UPDATE: More from David Barron on this point here.]

[Special Note for FedCourts Fans: The notorious telecom "immunity" provision, section 802(a), might (I haven't thought it through sufficiently yet) raise a very interesting problem under the infamously opaque U.S. v. Klein "doctrine." (See, e.g., Larry Sager's piece on the question.) Here's the gist of the issue:

Under current law, telecoms are legally forbidden from assisting the government's surveillance of their customers unless they receive a court order or receive from the Attorney General a particular sort of certification stating that the surveillance would be consistent with FISA. See 18 U.S.C. 2511(2)(A)(ii)(B) (certification must be "that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required"). Apparently the telecoms in some "TSP" cases did not receive the proper certification (because, in fact, the surveillance violated FISA), and in at least one case, the certification came from the White House Counsel rather than the AG (in early 2004, when Acting AG Comey refused to approve the surveillance after the Ashcroft hospital visit). Thus, it appears that the telecoms have violated FISA -- or so it is alleged -- and certain parties have brought suit asking the courts to so hold. The new provision does not appear to repeal the existing prohibition, or cause of action. Instead, it requires the courts hearing such actions to dismiss them -- regardless of the merits -- upon a certification from the AG or his surrogate that some other form of non-FISA-compliant "written request or directive" was provided to the telecom:
[A] civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be properly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that . . . (4) the assistance alleged to have been provided . . . was --

(A) in connection with intelligence activity involving communications that was (i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007 and (ii) designed to prevent or detect a terrorist attack, or activities in preparation of a terrorist attack, against the United States" and

(B) the subject of a written request or directive . . . indicating that the activity was (i) authorized by the President; and (ii) determined to be lawful.
Is the requirement that courts dismiss the pending actions constitutional under Klein? Does the "civil action may not lie or be maintained" language affect the analysis? Discuss.]

Comments:

By voting for immunity for the telecoms, which will effectively stop the 40 some lawsuits that challenge the legality of Bush's post 9/11 warrantless spying program, the Dems like Pelosi are also immunizing themselves. They knew about Bush's illegal spying program (and his torture program as well) early on, and are thus complicit in the lawbreaking. The heinous immunity provision is aptly called "Protection of Persons Assisting the Government."
 

I don't understand this at all. Why are the Dems rolling over, rather than taking this to the people via TV spots etc. where they spell it out:

"Bush says we need to renew this law to keep America safe. But he and the Republicans refuse to renew the law without letting the telcos off the hook for breaking the law.

"What's really important to the GOP -- protecting America, or protecting the companies that broke the law?

"If the telcos think they didn't really break the law, let them tell it to the judge. Don't let George Bush fool us again."

How g.d. hard is that?
 

Glenn Greenwald, as usual, has some good stuff on this issue.

This includes how Obama is helping this travesty, even if we should not view him in a "reductive Manichean lens," he "largely entrenched himself in, and is dependent upon, the power structure he says he wants to undermine."

Apropos to past discussions, this is not about rewriting the Constitution. It is about getting people in power who actually honor it. Who don't "take it off the table."
 


backgrounder from EFF

 

Nancy Pelosi did remove one joker from the deck, quite pointedly. It was brought to attention at this site, by Just an Observer (or JaO), when the PAA was just enacted. (I played the thick-headed student in the exercise): the PAA's Orwellian definition of "electronic surveillance" to exclude the electronic surveillance it authorized. (No, this is not a typo.)

This created a hole so vast that it appeared (as Marty confirmed) that even the PAA's lame procedures were not mandatory for the new surveillance but only an option that could be bypassed. The redefinition also took the new surveillance entirely out of FISA's regulatory scheme except insofar as the PAA itself managed to rein it back in (which it did lazily and fuzzily enough to let most of it back out again).

Back in March, in rebuffing the attempted ram-through of the Senate bill, Pelosi denounced the subterfuge in the strongest terms, calling it "very important" to notice and to keep out of the next FISA amendment. She even put the point on parity with exclusivity. (It is her third and final point at 6:10 at www.youtube.com/watch?v=TCrZdWVj2_c).

The current bill is free of this piece of hucksterism. I was pleased to see the House get on top of the issue, call it out explicitly, and stay focused on its expungement.

Looking at the new bill, I come away with two lessons. It is never a waste of time to call out a travesty; and if it's not one thing, it's another.
 

This is tantamount to granting the attorney general the authority to issue his own warrants-- albeit, retroactively.

Are there any constitutional grounds for objecting to this mockery of justice?
 

"I don't understand this at all. Why are the Dems rolling over, rather than taking this to the people via TV spots etc. where they spell it out:"

Because this was never about whether a President could engage in warrentless spying on Americans. It was about whether a President of the other party could. Bush is now sufficiently lame a duck that it's stopped being about what he can do, and become about what Obama will be able to do.

And there's no power that Democrats would object to a Republican exercising that they don't want to reserve at least the option for themselves exercising. What, you thought there was some kind of principle involved in this whole fuss?
 

I do not think there is a Klein problem. Larry Sager's article suggested that the problem with Klein was that courts were forced to decide legal issues (the effect of a pardon) in a way contrary to what their independent judgment tells them is the proper effect. But that is not at work here. Martin Redish more recently suggested that Klein was a procedural concern--Congress trying to manipulate outcomes (pardoned persons lose lose) by manipulating evidentiary rules as to the effect of the pardon. But both views had to take care to leave in place congressional power to define substantive, sub-constitutional federal law.

This bill strikes me simply as Congress redrafting substantive law by creating a new affirmative defense, along with the evidentiary rules for proving that defense. But, within constitutional bounds, Congress must have the power to define substantive law and its application, to be applied by federal and state courts.
 

I'm not so sure, Howard. The Klein issue isn't the no-jurisdiction provision; it's the instruction that the cases "shall be dismissed" upon certification from the AG. I had always thought that one of the more accepted readings of Klein was that it told the courts not just what the law was, but how to do their job, and it was the latter part that was so troubling.

To be fair, I don't have that much faith that the current Court would adopt a particularly felicitous reading of Klein, but on the pure question of precedent, this does come awfully close to looking like Klein itself...
 

Steve:

This is where Klein gets so confusing and potentially problematic, if it is given too broad a reading. Congress essentially here says that a telecom company has an absolute defense to liability on proof that it was acting on request from the President. And, separately, it establishes one evidentiary route to establishing that fact--the certification from the AG.

But the certification is not, standing alone, the be-all. I suppose a court in a case might find a particular certification improper (the necessary language is missing, for example) and thus not sufficient evidence to establish the defense. And a company might prove its defense in other ways--such as by presenting to the court the letter it received from the President.

Wise policy, it seems to me Congress must be able to control federal sub-constitutional law in this way.
 

Howard -- I agree that this is exactly where Klein is obtuse. But wouldn't Congress accomplish the exact same policy if the statute read precisely the same way, but without the command to the courts to dismiss the suit? The statute in Klein said (a) there shall be no jurisdiction; and (b) the courts shall dismiss for lack of jurisdiction. I always read the opinion as having a problem only with the second part of that. So if the statute here said that the courts will not have jurisdiction so long as the AG certifies, but then didn't command the courts to dismiss, I agree Klein would be a non-starter... but it does more, no?
 

I don't understand this at all. Why are the Dems rolling over, ...

I like Jonathan Turley's response on Countdown last night: that the Dem leadership knew about the illegal wiretapping from the beginning, and now they're covering their asses.
 

Steve and Howard,

The amendment to section 802 worked by the "civil action may not lie or be maintained" language seems to place this case in the same category as Seattle Audubon, outside the Klein prohibition. That is, Congress properly has “amended the applicable substantive law” rather than directing the courts how to apply existing law to reach a desired result in a particular case.
 

You folks really should not be too hard on your liberal Dem congressional leadership. They are substantially outnumbered by the center right Blue Dog Dems and the GOP on national security issues. Pelosi had to pull out all stops to delay passage of the FISA reform bill until now. If Pelosi allowed a vote when the bill first came up, it would have passed months ago.

The passage of this bill and a clean supplemental funding the war on the eve of the election puts the lie to the urban myth that the 2006 election was a mandate to reverse Bush national security policies. In reality, Dem gains predominantly came from center right Blue Dog Dems running against GOP corruption and profligacy in Red districts. If the Blue Dogs hope to continue to get elected in these districts, they will govern like conservatives on national security and spending issues. Thus, the vote to discard this relic of the radical post Watergate Congress.
 

joe said...

Glenn Greenwald, as usual, has some good stuff on this issue. This includes how Obama is helping this travesty, even if we should not view him in a "reductive Manichean lens," he "largely entrenched himself in, and is dependent upon, the power structure he says he wants to undermine."

Pseudo intellectual twaddle.

The only "power structure" which Obama wants to suck up to are the voters who will decide whether to make him President.

Obama is supporting this reform for the same reason the Blue Dog Dems are supporting it - they both need the votes of the hawkish Reagan Dems this fall.
 

Re: the Klein issue: I think the immunity provision is constitutionally sound (though substantively indefensibe) in my view) for the statutory claims w/r/t the Klein line of cases for the reasons others have posited (change in substantive law vs. directive to the courts about how to decide a case). Though the issue is certainly non-frivolous enough that it is guaranteed to engender more litigation on this very issue from the plaintiffs, rather than actually ending the current suits.

A more interesting, and closer, question is how the immunity provision affects the constitutional claims that some of the lawsuits include. Because while Congress can constitutionally repeal statutory remedies it has created, it cannot repeal the bill of rights. And while the plaintiffs likely would have a hard time making out the state action portion of their constitutional claims, those claims remain part of the suit. What happens to them on the immunity front?
 

Baghdad, the poll numbers for the disaster in Iraq are still in the toilet. Trust me, the Dems will be running against the Bush national "security" policies, and they are going to demolish the Rethuglicans in the process.
 

nal said...

I like Jonathan Turley's response on Countdown last night: that the Dem leadership knew about the illegal wiretapping from the beginning, and now they're covering their asses.

Turley got close. It would be more accurate to state that: The Dem leadership supported the surveillance from the beginning...
 

-- The new provision does not appear to repeal the existing prohibition, or cause of action. --
.

Nope. The prohibition, criminal penalties, and right to civil action remain, verbatim. And, with exactly the same substantive effect and power they have now. ZERO.

.

The civil cause of action has always been a phantom.
 

IANAL (much less a law professor) so can one of you who is please explain how any law which purports to legalize warrantless surveillance doesn't violate the plain language of the Fourth Amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
 

wub-fur internet radio said...

Multiple circuit courts of appeal have held that the 4th Amendment warrant requirement does not extend to surveillance of agents of foreign groups for the purpose of gathering intelligence and not evidence for a criminal prosecution.

FISA was enacted partially in reaction to these court rulings.
 

"I'm not here to say that the government is always right, but when the government tells you to do something, I'm sure you would all agree that I think you all recognize that is something you need to do." --Sen. Kit Bond (R-MO)

Got that everyone? Any questions? When the government tells you to do something, no matter how illegal, you must obey.

Patrick Meighan
Culver City, CA
 

disgraceful.

maybe they are covering their own asses.

i don't think it is because they want to retain the power. WTF, FISA is good enough.

if they don't have the votes, they should just table it.

also, does anyone have any thoughts on the sunset provision?
 

Commenter:

The immunity provision pretty clearly is OK as to the constitutional claims. Congress does have the power to add statutory defenses even to common law claims (compare all the governmental immunities applicable to § 1983/Bivens actions--all of which are common law immunities left in place). Under this view, Congress has not repealed the Bill of Rights or even tried to define the constitutional right--it is saying even if there was a violation, this actor (here, the telecom) cannot be liable.

Andrew: I agree this simply is an example of changing the substantive law, albeit as to pending cases.
 

Thus, the vote to discard this relic of the radical post Watergate Congress.

Wow. That's a selling point. "'Watergate' was just a witch-hunt by overzealous Democrats...."

Oh. Sorry. My lysdexia; my mistake. That was "Monicagate".

"Bart"'s only hope is that the young'uns have been sufficiently dumbed down by 'Merkun edjoomakation (and the older ones sufficiently pre-senile) so that they don't know or remember what Whitewater was all about.

Here's a refresher course.

I think that "Bart" agrees with the preznit back then.

Cheers,
 

"Bart" DeDicta has an interesting take on the Bill of Rights:

Multiple circuit courts of appeal have held that the 4th Amendment warrant requirement does not extend to surveillance of agents of foreign groups for the purpose of gathering intelligence and not evidence for a criminal prosecution.

If the distinguishing circumstance here is that the surveillance is not for purposes of "criminal prosecution" (but see, e.g., the discussion in In re: Sealed Case for a dismissive opinion on that distinction), then whenever it is the gummint's desire to snoop on you, for whatever reason as long as it's not for "criminal prosecution", the Fourth Amendment doesn't forbid it. So if the gummint claims a power under the regulation of commerce (or whatever power they would like to assert) to snoop your phone calls, and institutes such snooping, under "Bart"'s theory that would be well and fine.

This result can't be right.

Cheers,
 

Arne, et al.: This comments thread is actually worth something, because there's an extended discussion of the Klein problem. But once again, it's in danger of being rendered useless by the ambient noise.

For the billionth time, if you don't like what Bart is writing, just ignore it. Or take your personal battle elsewhere, please. Thanks
 

Marty:

It would appear that the following section leaving it to the court to make the determination whether the certification is "supported by substantial evidence" may have been meant to deal with any Klein problem:

‘‘(b) JUDICIALREVIEW.—

‘‘(1) REVIEW OF CERTIFICATIONS.—A certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.

 

Marty, if you're going to give Bart a stage for spewing rightwingnut propaganda, you're going to have to learn how to ignore the ambient noise.
 

This comment has been removed by the author.
 

(4) in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was—
(A) in connection with an intelligence activity involving communications that was—
(i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007;
(ii) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and
(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was—
(i) authorized by the President; and
(ii) determined to be lawful;

1) wasn't some of this spying rumoured to have begun prior to September 11, 2001? if so, its outside of the scope of the amnesty here, no?
2) the law requires the surveillance to be done at the written request or directive from the AG or head of intelligence - but when the whole Ascroft/Comey/Gonzalez/Hospital room thing happened, didn't Gonzalez, as OLC sign off on the one Ascroft wouldn't? does this mean Gonzalez's letter would not work, and this time frame is exempt from amnesty?
3) at the same time, wouldn't the program have been determined to be unlawful by Ascroft, et al? If it was unlawful at the time, would this be another grounds for exemption from amnesty?

the language of the statute is in the past tense - I don't know if they can go back and reauthorize the illegal conduct now. If the letter to the telcos, at the time of the Ashcroft hospital scene was not signed off by a intelligence head, then my (admittedly hurried) reading of the law suggests they can't assert amnesty for this period.

Even if constitutional, are there known facts that would exempt certain time frames of illegal conduct from being entitled to amnesty, and if so, can't the EFF simply amend? Unless I'm misremembering the facts, it seems there is at least one period where the directive was not from the AG, his deputy, or a head of intelligence - or did somebody sign off?

from the wapo story of the hospital room

"Later, Card ordered an 11 p.m. meeting at the White House. But Comey said he told Card that he would not go on his own, pulling then-Solicitor General Theodore Olson from a dinner party to serve as witness to anything Card or Gonzales told him. "After the conduct I had just witnessed, I would not meet with him without a witness present," Comey testified. "He replied, 'What conduct? We were just there to wish him well.' "

The next day, as terrorist bombs killed more than 200 commuters on rail lines in Madrid, the White House approved the executive order without any signature from the Justice Department certifying its legality. Comey responded by drafting his letter of resignation, effective the next day, March 12.

"I couldn't stay if the administration was going to engage in conduct that the Department of Justice had said had no legal basis," he said. "I just simply couldn't stay." Comey testified he was going to be joined in a mass resignation by some of the nation's top law enforcement officers: Ashcroft, Mueller, Ayres and Comey's own chief of staff."

http://www.washingtonpost.com/wp-dyn/content/article/2007/05/15/AR2007051500864_2.html

when a corrupt and craven Congress closes a door - does it open a window?
 

It's not but not sufficiently reported that the illegal wiretappings began in February, 2001. And this retroactive immunity would only immunize from September 11, 2001.

Do the Democrats not know, or forget, that? Or are they cutting out post-9/11 instances of violation in order that such cases not used as a "sky is falling" talking point by Republican Chickenhawk Littles?

Or was information gathered pre-9/11 being used to compell the Democrats to vote against the interests of the country, and We the people, in order to protect themselves from revelations?

There are, of course, evidences against the "blackmailing" theory: the raiding of Congressman Jefferson's Congressional office by the Executive seems almost a desperate effort to get SOMETHING on a Democrat.
 

The Klein problem's way beyond my understanding, but on a political note, Obama still hasn't announced his stance on the 'compromise,' and his spokespeople are giving the excuse that he's still looking it over. This can only mean that he's scared of looking weak on security and is at least considering coming out in support for the bill, his comments in the past on immunity notwithstanding. If he does end up voting for the bill, wouldn't it be the most brilliant political gambit for McCain to reverse course and announce he's opposed to immunity? In one stroke, he'd deflate the third term of Bush attack, make a huge play for the civil libertarian vote, and make Obama look awfully unprincipled. Of course it will never happen, but I think it's one of the few things he could do to win the election.
 

"Marty, if you're going to give Bart a stage for spewing rightwingnut propaganda, you're going to have to learn how to ignore the ambient noise.

"# posted by Bartbuster"

The "ambient noise" actually has a name: "Bart De Palma". Marty could elminate that ongoing smearing, and effort to derail and prevent reasoned on topic discussion by eliminating ththat "ambient noise" instead of only objecting to the reasoned "noise" by means of which his blatant tripe is refuted.

"Bart" is a walking summative Bushit criminal enterprise. Would Marty require that there be no "ambient noise" against the Bushit criminal enterprise in the real world -- which is where I come from and reside -- because it might tend to not only leave "Bart"'s tripe assented to by the silence, but also because it tends to upset his expectation of "academic freedom" in a real world which is not about tolerating the exceptions by that excuse made for John Yoo?

We have seen that here: first the inapplicable application of the "academic freedom" defense to John Yoo -- who was not acting in any academic capacity when he wrote the illegal torture memoes; and then the near-rabid defense of that inapplicable defense to distract from the actual topic issue, and, ultimately, to derail that discussion altogether.

Some are control freaks who insist discussion go their way only -- academic freedom is defended because it is irrelevant to the issue, but does obscure and obviate the discussion of the actual topic. Others impose a professorial world view in a context which must make exceptions to that oh-so-precious self-importance. "Blakinization" is a valuable resource, and freewhelling discussion should be the norm; but it is NOT a classroom in which those "auditing" the class must STFU.

I appreciate Marty's expertise in Administrative law, and especially his real-world experience fof DOJ. But he needs to adjust his perspective to accommodate more than his view of how the non-academic real world MUST operate.

Though I'm not going to start it, I think it is high time we revisit the discussion of Yoo's active, even enthusiastic, complicity in war crimes in view of the new revelations of that non-academic fact.

And while we're at that, discussion not only of the upstanding lawyers in that mess -- I'd love to find and have a PDF of Alberto Mora's statement to Congress -- but also ALL the thugs, not only the "outstanding" amoral Haynes.

Let's connect the dots on that, instead of continuing the dishonest pretense that Yoo was acting in an academic capacity, therefore was in effect "only kidding": he is an element of the proximate cuase of the detahs of at least 108 detainees, at least of 25 of those being homicides. Those deaths were not an exercise in "academic freedom".
 

Howard's point(s) are well taken, but let's put aside Klein for a moment if we may. AJ Seebok has asked:

Where does Congress apply a retroactive immunity to a tortfeasor without providing some kind of compensation fund such as it did in the 9/11 Victims Compensation Fund in exchange for the abandonment of any suits against the airlines, WTC owners, etc?

There are, we must remember, some quite a few active cases claiming real harm, and the harm need not be monetary to establish a cause for action and further, under FISA, there are civil damages allowable up to 1000 dollars:

Section 1810. Civil liability

An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801(a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic
surveillance or about whom information obtained by electronic
surveillance of such person has been disclosed or used in violation
of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover -
(a) actual damages, but not less than liquidated damages of
$1,000 or $100 per day for each day of violation, whichever is
greater;
(b) punitive damages; and
(c) reasonable attorney's fees and other investigation and
litigation costs reasonably incurred.


Now Congress steps in and forecloses the actions but without setting up some kind of compensation.

Is this not a violation of the Takings Clause?

But that's to the side.

The whole point of the civil actions against the telcoms was to produce through discovery the extent of what was done in collecting our phone, fax, email, and web activities. Since the ACLU’s attempt via the ACLU v NSA case got thrown out on the ludicrously circular, “you have no standing if you cannot prove injury, but you cannot prove injury without standing” argument by the circuit court, the only avenue left was in the civil actions against the telcos themselves. They could not plead state secret privilege and we would be able to get logs, suitably redacted, of what was gathered. However...

Comes the the Congress to the rescue, the civil actions are foreclosed, and if the House conference signs off on the immunity, we will probably have to wait 150 years or so to find out what happened and is happening still.

As it stands now, there is good reason to believe that much of the phone traffic, domestic and international alike, originating or terminating on the West Coast was subject to bulk collection.

This is truly a stunning and mind-bendingly outrageous lawlessness on the part of both the telcos concerned and the Executive and now the Congress comes in to tidy up. So very soon we will have a nice ex-post facto legalization and we can all stop worrying our little heads about the 4th Amendment and such outdated abstractions.
 

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