March 12, 2007

Beldar vs. Dafydd Under the Big Top

Hatched by Dafydd

Beldar has kindly responded to my post, Begging the Biggie, with his own -- which is even longer than mine!

Even the title has a lot of heft: Fitzgerald, Libby, and the roles of, and viewing windows for, big lizards (be they mere prosecutors, Special Counsel, or Independent Counsel Godzillas) in the legal-political jungle -- whew! But it's definitely worth reading, as it frames the debate nicely.

Simply put, it boils down to this: Which is more important -- that all the privacy rights and defendant's rights of those examined in the course of the Fitzgerald investigation be protected... or that the integrity and honor of the United States government (USG) and the country itself be defended and questions resolved?

Being only moderately concerned about privacy rights under any circumstances, and especially where government officials are involved, I opt for the latter. Let me explain, please...

The Plame Name Blame Game began as a two-pronged assault upon the integrity of the USG and the honor of the country itself:

  • Lyin' Joe Wilson claimed that Bush defrauded us into war in his 2003 State of the Union address and other speeches by making a false claim about Iraq, Niger, and Uranium ore, or "yellowcake."
  • Wilson and the elite media claimed that the administration subsequently used the power of the USG to silence Wilson by "outing" his CIA-employed wife, Valerie Plame Wilson, though a series of orchestrated leaks to the media.

In December of 2003, Patrick J. Fitzgerald, then the U.S. Attorney for Northern Illinois, was named Special Counsel to investigate whether there was any crime in the revelation that Wilson's wife worked for the CIA. (Fitzgerald was fresh off a corruption investigation of Republican Gov. George Ryan that netted 40 indictments, including that of Ryan himself, who was convicted of 18 counts of racketeering, conspiracy, fraud, extortion, bribery, and suchlike.)

There were two reasons for the appointment of a Special Counsel, one micro and the other macro:

  1. Micro: Fitzgerald was obviously appointed to uphold the law, to investigate crimes, to prosecute plaintiffs if necessary and prudent, and to gain convictions where they were guilty. Call this the legal quest.
  2. Macro: But, like all cases where a Special or Independent Counsel is brought in, there was a political side as well. As the integrity and honor of the United States and the USG had been questioned (by Democrats, for the most part), both Democrats and Republicans wanted those questions answered, either to restore the good name of the country (for the former), or to demonstrate that it had never been besmirched in the first place (for the latter). This is the quest for cosmic justice.

(The terms micro and macro relate to the focus: Micro is focused upon the particulars of this investigation; macro looks at the integrity of the government as a whole.)

Both of these purposes (or principles) are vital; but they can sometimes clash. And under the cosmic view of justice, whenever two principles clash, we must resolve that dichotomy by deciding which is more important.

While I'm certain that both Beldar and Patterico see both principles as important, I believe, based upon their writings, that they see (1) as more so -- perhaps because it's more tangible. Too, as lawyers, they have devoted their lives to upholding the law, and it would not be hard to see each case as a synecdoche of Law itself. This is what I meant by "thinking like a lawyer."

(To be fair, if they didn't think as lawyers, they wouldn't be anywhere near as good at their jobs as they clearly are!)

I, however, see the opposite: While both micro and macro are very important, I see (2) as more so... precisely because it's less tangible; that is, less "concrete-bound," as Ayn Rand might say, if she were still among us the living, I mean... less tied to the specific facts of one specific instance. The United States as a country and America as a culture can more easily survive injustices in individual cases than they can the cosmic injustice of losing national honor and governmental integrity, so that Americans cease to believe in America.

The proof is that we've all seen injustice in the courtroom many times: the O.J. case, the retrials of the police who were acquitted of beating Rodney King, the McMartin and other "pre-school molestation" cases, the Red-Light Bandit trial and execution, the "Lindbergh baby kidnapping" trial of Bruno Hauptman, the repeated prosecutions of Roscoe "Fatty" Arbuckle based upon nothing, and the trial of Dr. Samuel Mudd for treating the broken leg of John Wilkes Booth... these all popped into my head with two minutes thought.

Yet none of these egregious examples of injustice has shaken the widespread belief among the mainstream within the United States that if the cops arrest you, you'll get a fair trial. Everyone knows that sometimes it doesn't work right; but we also know it usually does, and it works better than any other system.

Injustice anent the macro principle, however, is a different story.

At any moment, government -- every government -- hangs by a thread. Sometimes the thread is like a hair, even gossamer; other times, in other places, it's more like a steel cable. But government in general always depends upon people choosing to obey the orders of those empowered (de jure or de facto) to issue orders... what Italian Communist Antonio Gramsci calls hegemony, or as I put it, "perceived fitness to rule."

Congress passes a law and the president signs it. A court issues a decision sending a man to prison or making one person pay "compensation" to another. The IRS audits a taxpayer and orders him to pay $2000 in back taxes. A state agency declares some geographic area a historic site, with heavy restrictions on building. A city council sets zoning laws the prohibit commercial businesses in some neighborhood.

Each of these is an order; each is backed by the threat of force, but it rarely comes to that. Instead, people generally obey the order simply because they perceive the entity that made it is "fit to rule," legitimate and authoritative -- even when the obeyer disagrees with the decision.

But even the phrase "backed by the threat of force" requires sufficient hegemony that the police or the Army will obey the orders of the government official: If Geoge W. Bush were to order the U.S. Marines to arrest Hillary Clinton, John Edwards, and Barack Obama, I guarantee you they would not obey that order. (In fact, the Marines who received it would testify against Bush at the impeachment trial in the Senate.)

Similarly, if Bush ordered the Marines to shift from one city in Iraq to another, they would obey; but if Hillary gave the same order, they would not. These refusals occur because Bush has hegemony as president (Commander in Chief) over the Marines; while Hillary, a mere senator, does not. But even Bush's hegemony is limited; there are legal and illegal orders, and the troops generally will not obey an obviously illegal order -- such as arresting the Democratic candidates for president.

There is, however, another way that hegemony can be lost: when those required to obey cease to recognize the moral authority and legitimacy of the people authorized to issue orders. This occurred, e.g., in the Soviet Union in August of 1991, when large portions of the Mighty Red Army refused to obey orders issuing from the Kremlin... because they knew that Mikhail Gorbachev, President of the Soviet Union and General Secretary of the Communist Party, had been seized by several generals and hardline Party members in a coup d'état.

Instead, most of the command structure within Russia itself shifted allegiance to Boris Yeltsin, President of Russia: The army, the police, even the people themselves lost faith in the larger government of the USSR... so they simply ceased to pay attention to their agents and orders.

A bad leader, a corrupt leader, or even too weak of a leader will cause far more damage, of a far more permanent nature, to the country than even the most bizarre and unjust courtroom outcome... because in a very tangible sense, the vast majority of the country identifies far more with the Executive and even the Legislative branches of government than the Judicial -- which is seen as an afterthought. To paraphrase the old bank commercial, the Judiciary is the branch you don't have to think about. It doesn't "represent the country" the way the president does, or to a lesser extent Congress.

There you have it. I know Patterico and Beldar -- and every other lawyer -- won't like it; but I think few would argue the point. They may opine that it should represent America more than any other branch of the USG, or at least just as much. But it simply doesn't, and nothing at all to be done about that.

So back to my dissent from Beldar's post. Beldar is focused almost entirely upon the integrity of the judicial process itself, from the very beginning of the investigation (the FBI interviews) right up through the grand jury testimony, the indictment, and the trial. And he is assuredly correct that, were Fitzgerald forced to answer the questions I posed in the previous post, some elements of judicial integrity would be compromised.

At the very least, workproduct that cops and prosecutors had every reason to expect would remain private would suddenly become public... at least to members of Congress, but probably even to the American people. At worst, the rights of the accused (Lewis Libby) and even those investigated but not accused (Karl Rove, Dick Cheney, Richard Armitage, Bob Novak, etc.) would be infringed.

Libby might have a harder time getting a fair hearing in the appellate courts or the Supreme Court. Those not charged might still have somewhat damning facts come out that they would prefer remain hidden.

But no right is absolute, and no decision is taken in a vacuum. There are other rights here, not the least of which is freedom of speech. Properly understood, this right has two parts: the least important is the right to speak; far more important is the right to hear.

The American people have the right to hear whether or not their government is corrupt; if it is corrupt, but they are never told because the Special Counsel will not spill what he found out, how are the people ever to correct it and restore integrity, honor, and hegemony?

Too, anyone who enters into government service necessarily forfeits some of his rights. Not perhaps in a legal sense, but certainly in a de facto sense: notice that virtually every president (and presidential nominee) makes his income-tax return public, for example; when was the last time anybody reading this post did the same?

Public servants also de facto give up much of their First Amendment rights... there are certain things you simply cannot say when you're a senator, or even the Junior Assistant Deputy Secretary of State for International Curling Competitions. Not if you want to keep your job. As Superchicken used to say to his assistant Fred, "you knew the job was dangerous when you took it."

And another of those infringements is the loss of much of one's right to privacy -- and Libby, Rove, Cheney, and everyone else in the administration knew the job entailed this when they took it. (Cluck!)

Libby, et al, simply have less of an expectation of privacy than does Dafydd or Beldar. In fact, even Patterico has a less robust set of rights than we, because the need for integrity and perceived integrity of the public sector is so much greater than among private citizens.

(The importance of hegemony also explains why killing a cop or the governor is so much greater an offense than killing a banker or a bus driver: To allow a banger to kill a cop is to allow him to tear up the Constitution and stamp on the pieces. It is and should be "special circumstances" all by itself.)

Not only does the silence of the Counsels infringe a very important national right, it's also very dangerous: The United States of America is fundamentally built upon a foundation of transparency and speech. It's always best to know the worst, no matter how bad, because at least that will tell you what didn't happen.

When all the people hear are the dire accusations, the hysterical claims, the alarums and excursions offstage, they envision a problem tremendously worse than it actually is... and, as with the similar case of the Iraq War, they can lose all faith in the USG based upon inuendo and overreaction. And that would be a calamity, for without faith, any government is nothing but a collection of loudmouthed head-butters and buttheads.

Each baseless accusation and fabricated outrage is a lit match thrown into a gasoline-soaked house; the truth about what Patrick J. Fitzgerald found -- and what he didn't find -- is a firehose of water: It may itself cause damage, but it will be dramatically less than the damage caused by withholding it.

Finally, Beldar may be correct that that the law prevents Fitzgerald from answering any of the questions I pose. He's a lawyer, I'm not (though I do play a "sea-lawyer" in the blogosphere). But if that is true, then the law stands in the way of justice and must be changed.

We used to have such a law, the Independent Counsel statute. Beldar disliked it and is glad that it's gone; but I think what we have now is actually worse... we have unresolved accusation and eroding integrity. If letting the Independent Counsel statute expire and setting up a Special Counsel "in but not of" the Justice Department was supposed to de-politicize the process, it has failed spectacularly.

We are much better off, and it's more in keeping with America's national character, to turn on the firehose of information let it spray where it will. A biased Counsel can write a biased report; but on the other hand, we've also seen what a biased D.A. can do in Austin, Texas or Durham, North Carolina with just a pocketful of subpoenas.

Corrupt people can corrupt any process; so the fact that a process might be corrupted is not a valid argument for dropping it. Everything is a trade-off; we must weigh the bad versus the good... and as a general rule, except under extraordinary circumstances, I favor greater disclosure over greater secrecy.

I think the United States should -- and does -- agree with me. Change the law, if necessary -- but turn on that blasted hose!

Hatched by Dafydd on this day, March 12, 2007, at the time of 7:38 PM

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The following hissed in response by: nk

Reverence for the majesty of the State, Dafydd? The Libertarians (big "L") will put you on their purge list.

It could be just because I'm a lawyer, but it's all micro. Or as Mario Puzo put it in "The Godfather" (the book not the movie): "It's all personal." We're all non-Theseuses who might find ourselves in Procrustes's bed and all we can hope for is enough warning from the law to tell us not to take the path that goes by his cave.

Fitzgerald should have talked to Libby's lawyers while the Grand Jury was in session, told them why he thought Libby was lying and given him the opportunity to come back and correct his testimony. I have done it, more than once, with lying witnesses and opposing parties. Of course I was a private attorney, looking for a good resolution for my client, and not a perjury charge.

Of course, Libby would have had to trust Fitzgerald's discretion because the federal perjury law does not make an exception for eventually telling the truth. Fitzgerald might think that the law does not allow him that discretion for the same reason. Procrustean.

The above hissed in response by: nk [TypeKey Profile Page] at March 12, 2007 9:00 PM

The following hissed in response by: Beldar

Dafydd, thanks for continuing our discussion through this fine post! You are undoubtedly right that lawyers like me tend to look at things from a microscopic perspective, one focused on the rights and concerns of our particular client at the moment.

The concerns in favor of maintaining secrecy in the investigative and grand jury processes, however, aren't only just concerns of individual privacy. There are also genuine concerns that without these restraints, the government officials directing the prosecutor could use the investigative and grand jury process to destroy reputations of people whose actual guilt doesn't even rise to ham-sandwich status. Your comment about the Marines arresting John Edwards is funny now, but journalists told that the police were coming to arrest them because they'd just written something nasty about the John Adams administration weren't so amused, and they did indeed do jail time.

You want to know what Fitzgerald thinks about a whole bunch of topics. But for a bunch of reasons, not all of them related to individual privacy or even individual liberty concerns, we don't want the sword arm of the State's justice system going on Oprah.

What Fitzgerald (or any prosecutor) thinks only matters if (a) it's about a crime that (b) he's persuaded a grand jury to issue an indictment upon. And then we want to pretty much limit what he says to (c) what he says in court to prove that indictment.

Until he's done all that, what Fitzgerald thinks is just one more opinion; once he's done that, then it's no longer his opinion, it's the result of the Rule of Law.

In the most macroscopic view of all — one looking far beyond the dispute about Valery Plame or Joe Wilson or the Sixteen Words or even the Iraq War — the integrity and honor of the United States government and the United States depend on adhering to and following the Rule of Law. And a country in which prosecutors go on Oprah — even if it's only on the really big cases, and in fact, especially if it's on the really big cases — wouldn't look, feel, or be like the country you and I revere by that name.

The above hissed in response by: Beldar [TypeKey Profile Page] at March 13, 2007 3:08 AM

The following hissed in response by: Big D

Sorry Beldar, you make good points, but I'm gonna have to side with Dafydd on this one.

What if we have a situation where a persecutor (er, prosecutor) is intentionally using both the powers and limitations of his position to smear various individuals and the U.S. Government? He can make accusations and innuendo, but then hide behind the secrecy rules the grand jury system, so that he never has to justify his statements.

Let's say I'm a prosecutor and I take testimony from politician. He is entirely innocent. I then go before the media and say the following "We would never have investigated Politician X if we hadn't thought a serious crime was committed, but Grand Jury secrecy rules prevent me from discussing this any further."

I was perfectly truthful, but now what? As prosecutor I have intentionally cast a shadow over the politician, and the politician CANNOT respond because he would then have divulged testimony from the Grand Jury, which would be a crime!

How is this different from what we have seen here? From the "Cloud over the Vice- Presidency"?

Sorry, but I suspect this entire thing was orchestrated from the start solely for political reasons. What do you do when a prosecutor, aided by the media, decides to play kingmaker? Isan't this just a method of winning an election by other means?

The above hissed in response by: Big D [TypeKey Profile Page] at March 13, 2007 9:35 AM

The following hissed in response by: nk

Big D,

There is no law, sustainable under the First Amendment, which could prohibit a witness before a Grand Jury relating his experience, every question put to him and every answer he gave, and calling the prosecutor a lying piece of dog feces, to everyone interested in hearing it. Remember Ari Blumenthal in the Clinton investigation?

The above hissed in response by: nk [TypeKey Profile Page] at March 13, 2007 10:56 AM

The following hissed in response by: nk

P.P.S. Article I, Section 6, Clause 1, and the Sixth, Ninth and Fourteenth Amendments of the Constitution too.

The above hissed in response by: nk [TypeKey Profile Page] at March 13, 2007 11:02 AM

The following hissed in response by: Dafydd ab Hugh

Nk, Big D:

Instead of a hypothetical, why not just look at DA Ronnie Earle's persecution of Tom DeLay or a DA Mike Nifong's abuse of the Duke U. lacrosse team? In both cases, prosecutors who were (for the most part) behaving within the Beldar strictures caused terrible damage by their biased, political prosecutions.

True, they also both made statements that were outside the bounds; but the damage was not so much done by these comments as by their lying, despicable indictments and how they actually prosecuted the cases.

My point: If a prosecutor wants to destroy somebody, it's just as easy to do so by manipulating the grand jury system to falsely procur indictments as it is by writing a final report that smeared the same person. The former is always more damaging than the latter, because a report can be countered by another report from the party that was blamed.

It's important to remember that, even during the era of the Independent Counsel, the most damaging smear ever committed by an IC was when Lawrence Walsh reindicted Caspar Weinberger on October 30th, 1992 -- four days before the presidential election. This was accompanied by the release of a Weinberger note suggesting that then President George H.W. Bush had repeatedly lied when he said he was "out of the loop" on Iran-Contra while he was VP.

Bush had been very close to Clinton in the polls; some had the election as a photo finish. But the bottom fell out, and he lost the election.

Now he might have lost anyway, but clearly, by unveiling the reindictment four days before the election (instead of, say, two days after), Walsh used the power of the prosecutor to ensure that Bill Clinton would win the presidency.

And he didn't even do it in a final report.

(I'm not sure why Beldar kept mentioning Oprah. Have we ever had an Independent Counsel who delivered his final report on her show? I had in mind issuing a final report to Congress and the president, perhaps making it available online or even publishing it, like the Senate Intelligence Committee's report on 9/11 intelligence failures; and perhaps even answering questions before relevant congressional committees.)


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at March 13, 2007 2:41 PM

The following hissed in response by: Beldar

Dafydd wrote,

If a prosecutor wants to destroy somebody, it's just as easy to do so by manipulating the grand jury system to falsely procur indictments as it is by writing a final report that smeared the same person. The former is always more damaging than the latter, because a report can be countered by another report from the party that was blamed.

There's no doubt that prosecutors have enormous powers that are capable of being abused to enormous bad effect. In theory, the grand jury system is intended to be a check on abuses of prosecutorial discretion, even though the steps a prosecutor must go through to persuade them to return an indictment are sometimes more of a required ritual than for him to fulfill rather than a substantial impediment to abuse.

The practical limitation on abuses of prosecutorial discretion comes from the fact that indictments either have to be proved or dismissed. The defendant has a right to demand a speedy trial. If the indictment cannot be proved beyond a reasonable doubt, the defendant is vindicated.

Can enormous damage be done to someone without convicting him and putting him into prison? Oh, most assuredly. Do all members of the public, all voters, scrupulously put out of their heads all as-yet-unproved allegations against, say, a presidential candidate's former cabinet officer? Assuredly not; and in a close case, of which the 1992 election mentioned by Dafydd above was certainly one, it can make a huge difference. Does an acquittal bleach away all stain, all doubt? No, of course it does not.

But the sort of abuse of which you write, my good friend, can be done by any prosecutor. That's not a problem confined to Independent Counsel or Special Counsel.

And giving any sort of prosecutor additional approved means of making statements that need not be proved by a disinterested factfinder — ever — compounds the danger, it doesn't reduce it.

There is also the other side of the coin — the problem of prosecutorial abuse in refusing to indict crimes that ought to be charged. That abuse also exists whether or not their are independent counsels or special counsels; that abuse is also more likely, not less, if the prosecutor is permitted to speak other than through indictments and courtroom evidence.

Having prosecutors participate in politically charged matters other than through indictments and convictions will make the politicization problem you complain of worse, not better.

I can't understand how you simultaneously can deplore Fitzgerald's "cloud" remarks and yet criticize the system for not letting him make even more subjective, unproved (and perhaps unprovable) statements of opinion that will get even more public attention. (The Starr Report, when released to the public, did indeed get the equivalent of Oprah-like ratings.)

The above hissed in response by: Beldar [TypeKey Profile Page] at March 13, 2007 4:24 PM

The following hissed in response by: Dafydd ab Hugh


Once again, you raise a series of excellent questions, to which I have a series of excellent answers. The airing of such back and forth debates is extremely illuminating... wouldn't you agree? <g>

But the sort of abuse of which you write, my good friend, can be done by any prosecutor. That's not a problem confined to Independent Counsel or Special Counsel.

A point on which we absolutely agree.

And giving any sort of prosecutor additional approved means of making statements that need not be proved by a disinterested factfinder -- ever -- compounds the danger, it doesn't reduce it.

Of course it does. Again, we agree. I did say this in my post, but I might not have been as clear as I should have: There is no question that adding the possibility (or requirement) of a final report creates more opportunities for mischief on the part of a politicized Special Counsel.

But as I think I also said, there are no "solutions," only trade-offs; a good solution is a trade-off where what you gain is worth more than what you lose.

The increased risk above is the downside; the upside that the American people will have much more of an understanding of the results of the investigation into whatever "scandal" prompted the president to appoint a Special Counsel in the first place.

This increased understanding will go a long way towards restoring faith in the integrity of the USG and in the honor of the country, a faith that is shaken by a lengthy series of horrible accusations that are never resolved. And you're right: The lack of an indictment is not really a resolution in the minds of a huge number of people, however much a legal resolution it may be.

I argue that this gain far outweighs the increased risk that a biased prosecutor, who already has access to a panoply of legal methods of using the grand-jury system to trash reputations, will also get the opportunity to write a final report.

...A final report that will itself be subject to open discussion and debate, meaning that anyone who thinks he has been smeared can respond in the same fora that the report appeared: the court of public opinion and the "court" of the Congress.

Finally, there is this puzzling comment:

I can't understand how you simultaneously can deplore Fitzgerald's "cloud" remarks and yet criticize the system for not letting him make even more subjective, unproved (and perhaps unprovable) statements of opinion that will get even more public attention.

Really? I thought it was pretty clear: I distinguish between process and the use of that process.

By the same coin, I can support the Senate rule allowing filibusters and requiring 60 votes to overcome them and achieve cloture -- while simultaneously deploring the Democrats' use of the filibuster to prevent votes on judicial nominees who have majority support in the Senate, and who will assuredly be confirmed... if the Senate gets to vote.

Doesn't that seem like a reasonable pair of positions to you?


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at March 13, 2007 4:52 PM

The following hissed in response by: KarmiCommunist

It seems to humble Low and Ignorant Insane swamp hermit me that the first step in any investigation should be to prove that a crime actually did occur, especially if one is a ‘regular’ Prosecutor and/or special counsel [read: special prosecutor] and/or Attorney General and/or Assistant Attorney General and/or Deputy Attorney General, before going ‘balls-to-the-wall’ to speak.

i just linked (see above) to one of the first mentions that United States attorney for the Northern District of Illinois, Patrick J. Fitzgerald, will serve as special counsel in charge of this matter. The LINK points to a Department of Justice press conference, December 30, 2003, and henceforth humble me shall refer to quotes from that link in Big Lizards’ “b-quote” format.


Perhaps i am missing something here, but recall that it was known early on that Valerie Elise Plame (aka Valerie E. Wilson, Valerie Wilson, Valerie Plame, and “VP” – perhaps that last “aka” is what confused Joseph Charles Wilson IV during his debriefing) had been ‘outted’ by some American spy working for the Russians, and that the CIA or FBI had ‘outted’ her by sending a message to the American Embassy in Cuba...through the Swiss (?) Emabassy in Cuba, since we don’t actually have Diplomatic relations with Cuba. (Beat that sentence, Beldar! wink)

Anyway, it was known early on that Joe’s Valerie was not a covert CIA agent, at least since 1997 when she started dating a former American Ambassador, and probably back to 1992/1993...if, she was ever actually a “NOC”. Personally, i think CIA ‘hooker’ each time i see a photo of to speak.

OK...back to my original point in this post, whilst sorta quoting Lady Clara Peller (from an old Wendy’s commercial)...“Where's the CRIME?”. In the real world, humans get fired for the lack of production that Patrick J. Fitzgerald ‘pRoDuCeD’ in this...snip...SNIP...snip-snip...*SNIP* case:


Apparently the DoJ and our Judicial branch and our entire judicial/court systems ignore Merriam-Webster and, etc. Karmi to Planet Earth. Karmi to Planet Earth, come in. Karma we have a problem.


The above hissed in response by: KarmiCommunist [TypeKey Profile Page] at March 13, 2007 5:45 PM

The following hissed in response by: toughluck

Jesus Christ, that's a hell of an answer. Over my head in some regards, but very well said.

The above hissed in response by: toughluck [TypeKey Profile Page] at March 14, 2007 12:37 PM

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