Washington, D.C.

Obama speaks about the Supreme Court

Echoing a long-standing claim of the Right, he accuses the Warren and Burger Courts of judicial activism

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(updated below - Update II)

President Obama gave an interview last night aboard Air Force One in which he was asked about his views of the Supreme Court, and this is what he said:

It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically. And in the ’60s and ’70s, the feeling was, is that liberals were guilty of that kind of approach.

What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.

The reason this is so striking is because it’s long been a right-wing Article of Faith that the Supreme Court in those two decades — the Warren Court (until 1969) and then the Burger Court — was guilty of so-called “judicial activism.”  Conversely, liberals have long viewed those two courts as the high point of the judiciary’s protection of Constitutional liberty, and with good reason (note that defenders of Elena Kagan have been claiming she’d be “the next Earl Warren,” which they mean as a compliment).  Those were the Courts of William Brennan, Thurgood Marshall, William O. Douglas, and Hugo Black, among the most admired progressive Supreme Court Justices of the last century.  I’d really like to know what Obama means specifically when he adopts the Right’s view by condemning those courts as being guilty of “erroneous” judicial activism.

The Supreme Court in the 60s and 70s produced many of the decisions most cherished by mainstream progressives.  That was when the right to privacy was first recognized in Griswold, anti-miscegenation statutes were struck down in Loving, public school officials were barred from imposing sectarian prayer in Engel and mandatory Bible readings in Abington, defendants’ rights were safeguarded in Miranda, the right to counsel was mandated in Gideon, reproductive rights were protected in Roe, religious freedoms were enhanced in Sherbert, Fourth Amendment guarantees against unreasonable searches and seizure were strengthened with the exclusionary rule in Mapp and by application to telephone eavesdropping in Katz, critical First Amendment safeguards were enforced in Brandenburg and The Pentagon Papers case (NYT v. U.S.), the rule of law was aggressively applied to Richard Nixon when the Court unanimously ordered him to comply with Congressional subpoenas, and the promise of equal protection enshrined in Brown v. The Board of Education (a decision of the Warren Court) was carried through with a series of decisions applying those principles to states and localities.

These decisions form the bedrock of progressive legal thought regarding the Constitution and the Supreme Court, which is why it’s rather bizarre to hear Barack Obama condemn unspecified aspects of it as “judicial activism errors.”  Shouldn’t he be asked which specific parts of the judicial approach in these two decades he finds to be disturbing?  It’s possible that he had something relatively innocuous in mind, that he intended to make a different point than the one he made, or that it was just a sloppy though typical effort to show how fair-minded he is by attacking the Dreaded Left, but the way he expressed it was a virtually complete replica of decades-old right-wing attacks on the Supreme Court.  Perhaps this explains why two of his reputed top 3 candidates to replace Justice Stevens are Elena Kagan and Merrick Garland (a former prosecutor whom Charlie Savage described this week by suggesting “that he could be more of a center-right justice in matters of criminal law”).

* * * * *

I’ve written extensively about the U.S. media’s refusal to use the word “torture” to describe what the United States does, while using that term promiscuously to describe the same behavior from other countries.  John Cole today notes a particularly egregious example of that distorting, government-subservient practice.

 

UDPATE:  Several people, in comments and via email, argue that Obama did not intend in these comments to endorse the view that there was judicial activism in the 1960s and 1970s, but merely that conservatives are being hypocritical in doing now what they accused liberal judges back then of doing (see here and here for two examples of that objection).  That’s definitely possible; I explicitly acknowledged that there was ambiguity in what Obama said and that “it’s possible that he had something relatively innocuous in mind,” which is why he should be asked what he meant.  But I think my reading of his comments is, at the very least, reasonable, for reasons I explain here.  Perhaps we can hear a clearer statement from him on whether he thinks, as he seemed (to me) to say here, that liberal Justices in these two decades were guilty of the “error” of judicial activism and, if so, in which instances.

On a related note, The Huffington Post‘s Sam Stein today documents and examines Elena Kagan’s support for some of George Bush’s most controversial right-wing judicial nominees.  I suppose it’s nice to learn that she’s able to take a public position on something.

 

UPDATE II:  CNN has a moderately interesting update on Obama’s search for Stevens’ replacement:

The White House has begun finalizing its list of potential nominees for the upcoming Supreme Court vacancy, with many senior administration officials privately urging the president to name someone with a proven, “reliable” liberal record, according to sources closely involved in the selection process. . . . Government sources say top Obama aides have been getting an earful from liberals, who want to ensure a strong voice from the left is chosen, not a so-called “compromise” choice that could ensure a smoother confirmation this summer. They worry a nominee perceived as having a moderate-liberal record could lock Democrats into a position of never being able to win approval of future Obama judicial and executive branch nominees with more liberal views. . . .

One issue that has raised particular red flags on the left is executive power, and whether Obama has done enough to reverse the scope of anti-terror policies from the Bush administration dealing with detaining and prosecuting suspects. Some human rights groups say the current president and his aides have in some cases been too eager to embrace an expansive view of unilateral power. . . .

About 10 candidates remain on the “short list,” which is now being pared down to about three or four finalists. . . . Sources with knowledge of the internal vetting process say the focus remains on three people: Solicitor General Elena Kagan; federal appeals judge Diane Wood, based in Chicago; and federal appeals judge Merrick Garland, who works in Washington.

Kagan is believed by many to be the leading candidate, but her lack of judicial experience and her work defending the administration’s anti-terror policies worry some progressives.

These reports are anonymous, so take them for what they’re worth.

Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

D.C. firm inks lucrative public-relations contract with Bahrain

As the Gulf monarchy cracks down on an international aid group, it hires Qorvis for $40,000-per-month P.R. job

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D.C. firm inks lucrative public-relations contract with BahrainA Shiite Bahraini woman gestures as others shout anti-government slogans outside a public forum Saturday, July 23, 2011, outside a religious community center in Sanabis, Bahrain, denouncing the alleged destruction and vandalizing of Shiite mosques, community centers and cemeteries during a government crackdown on a largely Shiite spring uprising. Clerics who spoke during the meeting, blamed Saudi Arabia for targeting religious sites, because they allegedly distrust their own Shia minority and sent forces to help quell the Bahrain uprising. (AP Photo/Hasan Jamali)(Credit: AP)

Bahrain is in the news again, this time for what appears to be the comically evil persecution of the humanitarian group Doctors Without Borders.

So, naturally, the ruling monarchy of the Gulf nation has hired a top Washington public relations firm to burnish (or attempt to salvage) its image, according to a new foreign agent registration filing. Qorvis Communications will be paid $40,000 per month, plus expenses, for the public relations work, according to a contract submitted to the U.S. Department of Justice.

Here is the latest on the events in Bahrain, where the Sunni regime’s crackdown on a Shia protest movement is now focusing on prosecuting or harassing those — including doctors — who came to the aid of protesters back in the spring:

The trouble for the group — which is also known by its English name, Doctors Without Borders — started about a week ago. Activists say a young man who had been protesting in his village was hit in the head at close range by police firing a tear-gas canister.

The protester went to the MSF office in the capital, Manama. Owing to the severity of his injuries, an ambulance was called, and the patient was taken to the hospital. On July 28, the next day, 14 police vehicles pulled up to the MSF office. Authorities raided the building and reportedly took away furniture, medicine and patient files — and arrested the group’s local driver, Saeed Mahdi.

Now, the rented villa that used to house the MSF office is locked up and empty.

Qorvis distributed a statement to American journalists writing about the incident, with the Bahrain Health Ministry claiming that Doctors Without Borders “was operating an unlicensed medical center in a residential apartment building.”

Qorvis, which promises clients “integrated strategies to help you tell your story better,” did not immediately respond to a request for comment about its work for Bahrain. The contract is signed by Qorvis partner Matthew Lauer, who was previously a public diplomacy official in the Bush State Department and a spokesman for the South Carolina Democratic Party.

Earlier this year Huffington Post reported that several Qorvis partners had departed the firm because, in the words of one unnamed insider, “I just have trouble working with despotic dictators killing their own people.” Qorvis had previously worked for Bahrain through another PR firm, Bell Pottinger.

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Justin Elliott

Justin Elliott is a reporter for ProPublica. You can follow him on Twitter @ElliottJustin

Poll: Public sides with Obama on deficit

The potentially catastrophic effects of a default are finally sinking in with Americans

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Poll: Public sides with Obama on deficitIn this July 14, 2011, file photo, President Barack Obama sits with House Speaker John Boehner of Ohio, House Minority Leader Nancy Pelosi of California, House Majority Leader Eric Cantor of Virginia, as he meets with Republican and Democratic leaders regarding the debt ceiling in the Cabinet Room of the White House in Washington, Thursday, July 14, 2011. Obama's decision to haul lawmakers in day by day to negotiate a debt deal comes down to reality: He has no other choice. The president has essentially cleared his agenda to deal with one enormous crisis. (AP Photo/Charles Dharapak)(Credit: AP)

Most Americans want to see a compromise on the debt ceiling, according to a new NBC/Wall Street Journal poll.

62 percent of self-identified Democrats said they would want Democratic leaders in the House and Senate to make compromises to gain consensus on the current budget debate, while only 43 percent of Republicans want to see their party leaders concede some of their positions. However, around 70 percent of independent respondents said they wanted to see both parties compromise.

The poll results, released Tuesday show that 55 percent of respondents think that failing to raise the debt ceiling would be “a real and serious problem,” while only 18 percent said it would not be. This contrasts starkly to results gleaned from a Gallup survey in May, in which 47 percent of people said they would want Congress to vote against raising the debt ceiling.

Meanwhile, support for President Obama’s proposal for lowering the deficit significantly trumps that for Republican proposals: 58 percent of NBC/WSJ poll respondents said they preferred Obama’s suggestions to lower the federal deficit by $4 trillion over 10 years by cutting federal spending, raising tax revenue from the wealthy and reducing some Medicare spending. Contrastingly, only just over a third prefer the House Republican proposal to reduce the deficit by $2.5 trillion over 10 years through cutting spending alone and not raising additional revenues.

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Natasha Lennard covers the Occupy movement for Salon. A British-born, Brooklyn-based journalist, she has been covering Occupy Wall Street since before the first sleeping bag was unrolled in Zuccotti Park. One of the first journalists arrested at an Occupy action, she has managed to enrage Andrew Breitbart, Rush Limbaugh and Glenn Beck. You can follow her on Twitter (@natashalennard), and email her any Occupy updates/videos/ideas to natasha.lennard@gmail.com

Lobbyists are overtaking Congress

Since the GOP takeover, the number of lobbyists in congressional staff positions has more than doubled

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Lobbyists are overtaking Congress

(Updated below)

A new report from the Center for Responsive Politics (CRP) looks at the pervasiveness of former lobbyists now working in congressional staff positions. The number of former lobbyists in Congress has more than doubled between the last Congress and the current one, with a significant partisan skew. In the current 112th Congress, 79 former lobbyists work for Republicans while 48 for Democrats; during the Democratic-led 111th Congress (which ran from 2009-2010), 33 worked for Democrats, while 27 worked for Republicans.

The report, titled “From Hired Guns to Hired Hands: ‘Reverse Revolvers’ in the 111th and 112th Congresses,” is available in full here and has a number of noteworthy takeaways:

  • 60 former lobbyists worked in critically important staff positions in the 111th Congress, 128 former lobbyists can be found working in the same positions in the 112th Congress.
  • The House Energy and Commerce and the House Financial Services committees have the highest cumulative number of former lobbyists employed by their members. The lobbyists of certain companies may be highly desirable to members of Congress serving on committees that handle legislation of concern to these companies. AT&T alone has six former lobbyists who at one point lobbied on behalf of AT&T and now work for senators or representatives sitting on the Senate or House committees related to energy and commerce.
  • 50 former finance sector lobbyists work in the 112th Congress, as do 44 former telecommunications sector lobbyists and 40 former healthcare industry lobbyists. Meanwhile, only seven former labor lobbyists occupy these congressional staffer positions.
  • Certain companies — particularly telecommunications, healthcare and defense contracting firms — are well-represented in the portfolios of former lobbyists now working on Capitol Hill. CRP notes a particular example involving Lockheed Martin. “Charles Kinney, currently working for Sen. Joe Manchin (D- W.Va.), lobbied on behalf of Lockheed in 2004… Now, Kinney is deputy chief of staff and general counsel for Manchin, who currently sits on the Senate Armed Services Committee, as well as the Senate Budget Committee” reads the report. [Update: a representative from Manchin's office informs us that Kinney stopped working for Manchin in May. He was still staffer for the senator at the time of CRP's research]

What does this all mean? As CRP is careful to note, there are numerous reasons why lobbyists might take congressional staffer jobs. “For some people,” the report states, “working in government is exciting, fulfilling work, where the psychic rewards make up for the smaller paycheck. In other cases, people may have lost lobbying jobs due to the poor economy and find the Hill to be a place where their expertise and skills are highly valued.” However, the K Street/Congress revolving door could well spin into concerning territory, as the report concludes:

It may, plausibly, be the case that these individuals are able to keep the wishes of their former clients separate from the wishes of the constituents their bosses represent. But it may also be the case that these former lobbyists are now in the position to exercise considerable sway over everything from policy outcomes to government contract decisions and anti-trust decisions. Particularly where the issues are complicated and do not drive significant constituent interest, former clients of ex-lobbyists now working in Congress could be well placed to reap the rewards of enhanced access and deeper connections into government’s legislative branch.

 

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Natasha Lennard covers the Occupy movement for Salon. A British-born, Brooklyn-based journalist, she has been covering Occupy Wall Street since before the first sleeping bag was unrolled in Zuccotti Park. One of the first journalists arrested at an Occupy action, she has managed to enrage Andrew Breitbart, Rush Limbaugh and Glenn Beck. You can follow her on Twitter (@natashalennard), and email her any Occupy updates/videos/ideas to natasha.lennard@gmail.com

Shariah law instituted steps from the White House!

Predicting an overblown right-wing outrage

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Shariah law instituted steps from the White House!Do I spot crescents in this CityCenterDC promotional brochure?

There is a giant real estate development happening in downtown Washington, D.C., near the White House, on the site of the old convention center. Boring news for non-D.C. residents. But I’m willing to bet that the CityCenterDC complex — office space, retail, condos, your standard massive downtown “revitalization” project — will soon be very interesting to a lot of people who don’t live in the area. Not because anyone cares about urban land-use issues, but because of one of the project’s investors: Muslims.

The Washington City Paper noticed a bombshell buried at the bottom of a New York Times piece:

Even before the Qatari investors became involved, Hines and Archstone determined that leasing to banks would not help them create lively shopping streets, Mr. Alsup said. But as it happened, their hesitancy on bank branches meshed with the policies of their financial partners, who adhere to the restrictions of Shariah, or Islamic law, including the ban on collecting interest. Restaurants will be able to serve liquor, but retailers whose primary business involves selling alcohol will not be allowed, Mr. Alsup said.

That’s right: Shariah law, a stone’s throw from the U.S. Capitol. I am assuming the Times just neglected to mention that in addition to banning bars from the complex, all women will be required to wear the niqab, and obviously all infidels will be murdered, while shopping at the Apple store or whatever ends up there. And no dancing!

What’s astounding is that as far as I can see, Matt Drudge hasn’t picked this up. Pamela Geller hasn’t written a lengthy screed about it. Robert Spencer has not weighed in. No one at the Corner has mocked liberals for mocking the threat of creeping Shariah. Get on it, guys! SHARIAH LAW HAS BEEN IMPOSED IN WASHINGTON!

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Alex Pareene

Alex Pareene writes about politics for Salon and is the author of "The Rude Guide to Mitt." Email him at apareene@salon.com and follow him on Twitter @pareene

What line between civilian and military authority?

An increasingly powerful Pentagon is taking over the culture of Washington

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What line between civilian and military authority?U.S. President Barack Obama meets with troops at Bagram Air Base, December 3, 2010.

I have a fairy tale for you. Once upon a time, a representative democracy was established with a constitution that distilled the wisdom of the ages. Its foundational principles included civilian control of the military and a system of checks and balances that encouraged vigorous public debate as a basis for effective policy-making.

In this fabled land, the role of civilian leaders was, in part, to serve as a check on military ambition and endless wars. They were to prove cautious, too, in committing their citizen-soldiers to battle, and when they did, they would issue Congressional declarations of war so that everyone could grasp the nature of the national emergency at hand and the necessity of military action. In waging war, they would rely on shared sacrifice and even raise taxes. When necessary, it was their job to rein in or even remove military leaders who acted like Caesar (read: General Douglas MacArthur) rather than Cincinnatus (read: General George Washington).

Yes, you’ve guessed it: It’s not a fairy tale, or at least not completely. It’s the United States — an older America that, despite a decidedly checkered and often imperial past, was nevertheless proud of its reluctance to fight, but steadfast in its commitment to win once it decided that battle was the course of action. Even then, this America remained resolute in its reluctance to embrace a military ethos or bow down before military gods, committed as it was to civilian primacy and the avoidance of a large standing army.

Paradoxically, the last vestiges of this America could still be seen some 50 years ago under President Dwight D. Eisenhower, himself a retired five-star general, who tried with varying degrees of success to limit defense spending, and who famously warned in his farewell address in 1961 of the dangers of a surging “military-industrial complex.”

And leaping forward almost four decades, here’s another paradox for you: prior to September 11, 2001, what many leading pundits and commentators fretted most about was an alleged widening gap between American civilians and their now all-volunteer military. In 1997, Wall Street Journal Pentagon correspondent Tom Ricks typically worried about an all-volunteer military that saw civilians as privileged and flabby, increasingly considered itself a breed apart, and held the public it served in contempt.

Concerned as well was Richard Kohn, former chief historian of the U.S. Air Force. In a special lecture to Air Force Academy cadets in 1999 on “the erosion of civilian control of the military in the United States today,” Kohn worried about a military that openly disrespected President Bill Clinton, its commander-in-chief, even as it meddled in areas like policy-making for which it was not suited and from which it had been excluded by the Constitution.

How times have changed. In the post-9/11 world, a far more insidious problem confronts us. That gap, if it ever existed, is no more. Instead, at the highest levels, what’s civilian and what’s military are increasingly difficult to tell apart as the two spheres blur and blend. Today, civilian control of the military is largely a principle without a meaning, while inside Washington’s Beltway, even with a scorecard it’s hard to tell the players apart.

In the process, the military has gained a kind of unspoken and distinctly un-American primacy. Put another way, after a decade-long budgetary feeding frenzy, the Pentagon has soared, while an eclipsed Department of State, all those civilian diplomats, has been left to eke out a living on budgetary scraps or, as in Iraq today, arm and militarize itself. State, in other words, has become a remora clinging to the predatory shark that is the Department of Defense.

Large and small, symbolic or otherwise, signs of this civil-military blending (with the military significantly running the show) can be found almost anywhere you look. Civilian presidents regularly appear in military flight gear or jackets, as George W. Bush famously did before his “Mission Accomplished” speech on the deck of the U.S.S. Abraham Lincoln in 2003 and as President Obama did on a visit to U.S. troops in Afghanistan in 2010. Military leaders are now regularly put in charge of previously civilian intelligence agencies, as in the case of General David Petraeus, now nominated to leave the Afghan battlefield and become director of the Central Intelligence Agency.

Civilian agencies now militarize themselves and wage war (as the CIA has done or is doing in various drone wars in the Greater Middle East, often in conjunction with the military). America’s part-time citizen-soldiers have morphed into full-time warriors and warfighters, if not the equivalent of foreign legionnaires. America’s civilian embassies continue to morph into so many militarized fortresses protected by armed mercenaries. And above all, among policy arguments in Washington, whether you’re a civilian official or a military one, the choices are increasingly between militarized alternatives — say, counterinsurgency versus counterterror — with that most civilian of all options, peace, not even on that “table” where officials eternally claim that all options are placed.

At the same time, a new civic religion at whose heart is military-worship implores us to “support our troops” (without any concomitant call to uphold our laws and our Constitution). And even as ordinary Americans express serious doubts about the wisdom and cost of an open-ended commitment to Afghanistan — 64 percent of Americans don’t believe the Afghan war is worth fighting, and 73 percent would prefer sizable withdrawals of U.S. troops this summer, according to a recent Washington Post/ABC News poll — the Pentagon continues to prepare for a future of “two, three, many Afghanistans,” as Michael Klare, defense correspondent for the Nation magazine, noted in April 2010.

Clearly, if we’re not careful, the civilian and military will become the Washington equivalent of Siamese twins, co-joined at the head and, however bitter their internecine arguments, sharing the same underlying militarized thought processes.

Militarism Run Rampant

To separate such twins is a dicey thing, medically speaking, and no less so politically when the lines between civilian and military authority are being so rapidly erased. Make no mistake, as President Obama is wont to say, the impact of this erasure has been devastating.

It’s both sensible and logical to argue that our president and elected representatives must serve as a check on the military establishment, rather than issuing blank checks to them. It’s both sensible and logical to argue that all wars, as required by the Constitution, must have a Congressional declaration before American troops and treasure are committed. It’s both sensible and logical to argue that, as good as our military is, it ultimately can’t win someone else’s civil war (Iraq) or nation-build in a place where the concept of “nation” is little more than notional (Afghanistan).

Sensible and logical, yes, but such arguments have been made — and roundly ignored. They aren’t given the time of day among serious policy types in Washington, where to question the efficacy and legitimacy of the forces and tactics being used is simply not acceptable. Sharing one brain and one ethos means being incapable of grasping one’s own militarized rigidity or truly recognizing the perils that have been unleashed on this nation.

There’s a word for this disease, even if after all these years it remains remarkably foreign to American ears: militarism. When Americans think of that word, they tend to conjure up images of fanatical jackbooted Nazis or suicidal Japanese kamikazes, and so the concept seems eminently dismissible. But militarism also describes a situation in which a country’s civil society and political culture are permeated to the point of dominance by military attitudes and values — an undeniable fact of life, I would argue, in America today.

Militarists see war as productive, as offering solutions rather than posing problems. They see it as heroic. (President Bush famously waxed poetic about the “exciting” and “romantic” nature of fighting in Afghanistan.) When wars are romanticized as action-packed tests of a nation’s warriors, cuts to war spending are naturally seen as perfidiously unpatriotic — as kneecapping those same heroes. Hence our ever-growing “defense” budgets, even as a sledgehammer of a national debt hobbles America’s economic vitality and social security.

The end result of this militaristic mindset is a garrison state, constantly girding itself for national security crises, real or perceived, as in the last decade’s open-ended and frantic “war on terror.”

A singular danger of such a mindset, as pointed out by Laurence Radway in a telling article on “militarism” in the “International Encyclopedia of the Social Sciences,” is that militarists, unable to select means appropriate to true defense needs, end up jeopardizing the very national security they say they’re seeking to safeguard. By exaggerating threats, defining all responses to those threats in military terms, dismissing dissenters as weak and deluded (even when they prove right), and being incapable of questioning their principles, they repeat the same mistakes again and again.

Until Americans turn away from militarism and learn again how to “support our Constitution” more than our troops (and don’t worry: those troops swear an oath to that very Constitution), until we return to a broader vision of national security that deemphasizes a garrison mentality, we will continue to wound, perhaps mortally, a once great republic.

And that’s no fairy tale, it’s a fact.

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William J. Astore is a retired lieutenant colonel. He has taught cadets at the U.S. Air Force Academy, officers at the Naval Postgraduate School, and currently teaches at the Pennsylvania College of Technology. He is the author of "Hindenburg: Icon of German Militarism," among other books. He may be reached at wastore@pct.edu.

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