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Legal news from Tuesday, August 3, 2010




Afghanistan court jails top government official for drug trade ties
Daniel Richey on August 3, 2010 4:25 PM ET

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[JURIST] The Primary Court for the Afghan Criminal Justice Task Force (CJTV) [official website] on Tuesday fined former Afghan police chief General Mohlem $14,000 and sentenced him to 10 years in prison for connections he was found to have with drug traffickers. The sentence is the country's first for a high-ranking government official tied to the drug trade. The tribunal, created specifically to crack down on drug-related corruption, tried more than 600 people last year under mounting pressure from the West to clean up corruption connected to the opium trade [GlobalSecurity backgrounder], which many believe allows the Taliban insurgency to thrive. Also, on Monday, a special task force backed by the U.S. and Britain asked [WSJ report] Afghan President Hamid Karzai [official website; JURIST news archive] for permission to investigate several other senior officials on corruption charges, including members of Karzai's cabinet. Karzai has not yet granted the request, and has instead commissioned an investigation into the western-backed task force.

Karzai has responded to Western pressure by pledging to reduce corruption in his administration. In July, his cabinet approved a bill [JURIST report] that would allow high-ranking government officials to be tried for corruption. US President Barack Obama has made curbing corruption in the Afghan government a point of emphasis in his administration's foreign policy. In March, during a surprise visit to the country, Obama urged the government to reduce corruption [JURIST report] and institute an effective judicial system. Obama called on Karzai to take steps to promote good governance [CBS/AP report], end cronyism and curtail the opium trade. Last November, Karzai pledged to fight corruption [JURIST report] in his government during his inaugural address [text, PDF]. In his speech, Karzai announced that he would organize a conference to research the sources of the corruption and bribery and find ways to combat it.




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Rights groups challenge US regulation restricting legal assistance for terror suspects
Dwyer Arce on August 3, 2010 3:21 PM ET

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[JURIST] The American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) [advocacy websites] on Tuesday filed a lawsuit [complaint, PDF] challenging the constitutionality of a federal regulation making it a crime to provide legal services to, or on behalf of, individuals labeled Specially Designated Global Terrorists (SDGT) without a government-issued license. A SDGT designation is issued by the Treasury Department under federal law [50 USC § 1701 et seq. text], freezing the assets of the individual and preventing the provision of legal services without a license from the government. The suit was filed in the US District Court for the District of Columbia [official website] in relation to the case of Anwar al-Awlaki [NYT profile], a US citizen who is suspected of being a member of al Qaeda [GlobalSecurity backgrounder] in Yemen and was labeled a SDGT last month. According to the complaint, the Obama administration approved him for targeted killing in January and has been actively seeking to kill him through unmanned Predator drone strikes. The rights groups were retained by al-Awlaki's father in June to provide pro bono legal assistance in challenging this effort. The groups allege that the legal assistance ban issued by the Treasury Department exceeds its statutory authority and violates the First and Fifth amendments [Cornell LII backgrounders]. The groups argue that it violates their First Amendment rights because it interferes with their "right to represent clients in litigation consistent with their organizational missions," and violates the Fifth Amendment because it prevents US citizens from "obtaining legal representation of their interests in US courts." The ACLU explained its reasons for the lawsuit [press release], stating:
The government is targeting an American citizen for death without any legal process whatsoever, while at the same time impeding lawyers from challenging that death sentence and the government's sweeping claim of authority to issue it. This is a dual blow to some of our most precious liberties, and such an alarming denial of rights in any one case endangers the rights of all Americans. Attorneys shouldn't have to ask the government for permission in order to challenge the constitutionality of the government's conduct.
The complaint seeks either a declaration that the policy is unconstitutional, or an order forcing the Treasury Department to issue a license to represent al-Awlaki.

In March, the ACLU filed suit seeking information [JURIST report] related to the US government's use of unmanned Predator drones, seeking to enforce a Freedom of Information Act (FOIA) [text] request [text, PDF] made in January. The ACLU alleges that the unmanned warplanes have been used by the military and CIA for killings in Afghanistan, Iraq and Pakistan and cites troubling reports indicating that US citizens may be targeted and killed by Predator drones. The FOIA request asks "when, where and against whom drone strikes can be authorized," as well as for information related to civilian casualties. In October, UN Special Rapporteur on extrajudicial, summary or arbitrary executions Philip Alston [official website] noted that the use of unmanned warplanes by the US to carry out attacks in Pakistan and Afghanistan may be illegal [JURIST report].




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Obama signs bill to reduce cocaine sentencing disparity
Dwyer Arce on August 3, 2010 2:56 PM ET

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[JURIST] US President Barack Obama [official website] on Tuesday signed legislation that reduces the sentencing disparity between crack and powder cocaine offenses. The Fair Sentencing Act of 2010 [S 1789 materials] amends existing law to reduce the current sentencing ratio from 100:1 to 18:1. Under the existing law passed in 1986, an individual possessing five grams of crack cocaine would receive a mandatory five-year prison sentence, while an individual possessing powder cocaine would need to have 100 times that amount to receive the same sentence. The House of Representatives [official website] approved the bill last week [JURIST report]. Human Rights Watch (HRW) [advocacy website] praised the bill's passage [press release], stating that the current law also created a racial disparity, with African Americans comprising 79.8 percent of all offenders sentenced for crack cocaine violations. Attorney General Eric Holder [official website] also supported the bill [statement], saying that it will "go a long way toward ensuring that our sentencing laws are tough, consistent, and fair." Representative Lamar Smith (R-TX) [official websites] spoke out against the bill, arguing that reducing penalties could lead to increased violence in communities [press release].

The bill was introduced in the Senate by Dick Durbin (D-IL) [official websites] and was passed in March, less than a week after the Senate Judiciary Committee unanimously approved the bill [JURIST reports]. Last year, the House Judiciary Committee voted 16-9 to approve a bill [JURIST report] that would have completely eliminated the sentencing disparity between the offenses. In April 2008, a study released by the US Sentencing Commission (USSC) [official website] reported that more than 3,000 prison inmates convicted of crack cocaine offenses had their sentences reduced [JURIST report] under an amendment to the Federal Sentencing Guidelines [materials]. In 2007, the USSC voted unanimously [JURIST report] to give retroactive effect to an earlier sentencing guideline amendment that reduced crack cocaine penalties.




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Treasury secretary Geithner promises swift implementation of financial reform law
Daniel Richey on August 3, 2010 1:32 PM ET

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[JURIST] Speaking to a crowd of students and businesspeople at New York University's Stern School of Business on Tuesday, US Treasury Secretary Timothy Geithner [official profile] promised [speech text] a rapid rollout of new rules mandated by the Restoring Financial Stability Act [HR 4173 materials]. Signed into law [JURIST report] by President Barack Obama last month, the landmark legislation creates a new regulatory council to monitor financial institutions to prevent companies from becoming "too big to fail." It also gives the Federal Reserve [official website] new oversight over the largest financial institutions, creates a bureau of consumer protection, introduces multitudes of new regulations on derivatives and other financial instruments and limits the amount of capital banks can invest in hedge funds. Geithner said that the new Financial Stability Oversight Council (FSOC) would convene in September to create plan to move forward, citing advancement of consumer protections, housing finance reform and derivatives trading reform as major goals. Of even greater emphasis, he said, would be creating responsible new capitalization requirements for the nation's largest financial institutions to ensure that large banks do not become over-leveraged, but still allow them the freedom to grow and develop new markets:
Financial crises are, at their core, caused by excess leverage .... Part of what made this crisis so severe was that capital requirements failed to keep up with risks and failed to force firms to prepare for the possibility of a very severe recession ... This mistake was made worse by the fact that we allowed a large parallel financial system — composed of investment banks, consumer finance companies, and firms like AIG — to grow up alongside the regulated banking system. In that parallel system, firms were allowed to operate with very thin capital cushions and to finance their activities with short-term, unstable sources of funding.
Geithner said that the FSOC and other regulatory bodies will work over the coming months to forge an "international agreement" among the world's financial institutions and regulators on a set of new capitalization rules to prevent a "race to the bottom" of risk standards among investors in the global market. "We will move as quickly as possible to bring clarity to the new rules of finance," he said. "The rule writing process traditionally has moved at a frustrating, glacial pace. We must change that."

The House and Senate reconciled their versions of the bill [JURIST report] last month but were forced to re-open negotiations, eventually removing a $17.9 billion tax on large financial institutions that was meant to cover the bill's costs. The Senate approved its version of the bill in May, after the House passed its version [JURIST reports] in December. The Senate Banking Committe [official website] proposed a bill [text, PDF; JURIST report] in 2009 that was met with resistance and resulted in the committee's development of the bill ultimately passed by the Senate. One provision in the bill that has been the source of much debate is the creation of a consumer protection agency. The House Financial Services Committee [official website] had approved a bill to create the agency in October, after originally delaying [JURIST reports] it at the behest of financial industry leaders in July 2009. The creation of the agency is a key step in achieving the Obama administration's stated goal of tightening financial industry regulations. Last June, the administration proposed a broad series of regulatory reforms [press release; JURIST report] aimed at restoring confidence in the US financial system.




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Iraq court sentences former Saddam official to death
Drew Singer on August 3, 2010 1:27 PM ET

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[JURIST] The Iraqi High Criminal Court [Red Cross backgrounder, PDF; JURIST news archive] said on Tuesday that it has sentenced to death a senior official of former Iraqi dictator Saddam Hussein [JURIST news archive]. Mezban Khadar Hadi [Global Security profile], who was a leader in Saddam's Baath Party [BBC backgrounder], will be executed for draining the country's marshlands [AFP report] in an effort quash Shiite resistance in the region. Before his arrest in 2003, Hadi was a member of the Iraqi Revolutionary Command Council [Encyclopedia Britannica profile], which had both legislative and and executive authorities under Saddam's regime. The court also sentenced Saddam advisor Abdul Ghani Abdul Ghafoor to life in prison and 29 other Baath officials to prison sentences of up to 15 years.

On Monday, the court also sentenced former Baath Party official Abdul Ghani Abdul Ghafoor to life in prison for the repression of Iraqi Shiite Muslims in 1991, and dropped charges against Watban Ibrahim al-Hassan, Hussein's half-brother, for lack of evidence. Former Defense Minister Sultan Hashim also received 15 years in prison. In May, the appeals court for Iraq's Justice and Accountability Commission overturned a ban on nine newly elected members of parliament accused of having ties to the banned Baath Party. The ad hoc commission was created to eliminate Iraqi officials with potential connections to the regime, which the new government has been working to move away from since taking power.




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Rights group calls Philippines abortion ban 'human rights crisis'
Dwyer Arce on August 3, 2010 12:43 PM ET

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[JURIST] The Center for Reproductive Rights (CRR) [advocacy website] on Monday criticized [report, PDF; press release] the abortion [JURIST news archive] laws of the Philippines as a "human rights crisis," resulting in the death of thousands of women annually. In a report, "Forsaken Lives," the reproductive rights group characterizes the Philippines's complete ban on abortion as a violation of women's human rights by denying them access to safe and legal abortions. According to the CRR's findings, 560,000 Filipino women undergo illegal abortions every year, posing great dangers to their health. The group found that most of these abortions are conducted in crude and painful ways, resulting in complications in 90,000 women and causing 1,000 deaths every year. The CRR criticizes the stigma the ban has created around women who have sought to terminate their pregnancies, causing many to refrain from seeking medical attention following complications. The group argues the complete ban on abortion is due to the influence of the Catholic Church [religious website] in the country, to which 80 percent of Filipinos belong. The CRR explained:
The Catholic hierarchy plays a completely inappropriate role opposing any changes to existing laws on abortion and family planning and, as we see from this important report, women die as a result. In our work in the Philippines, we have seen and heard from Catholics who reject the influence of the bishops and support access to more comprehensive reproductive health services. It's time to break the silence around abortion in the Philippines and for the human rights community to put pressure on the government to decriminalize abortion and immediately improve the medical care that women receive.
CRR also called for the Philippine Congress [official website] to change the nation's laws to allow women to have abortions in certain circumstances, such as for the mother's health, fetal impairment and in cases of rape or incest. Currently, the Philippines is one of the few countries to outlaw abortion in all situations without exception.

Other human rights groups have criticized the restrictive abortion laws in Catholic-majority countries. In January, Human Rights Watch (HRW) [advocacy website] argued that Ireland's restrictive abortion laws increase health risks to women [JURIST report] and expose them to deliberate misinformation about abortion procedures. Ireland's current legislation prohibits abortion for any reason except when the mother's life is threatened and carries a potential sentence of life imprisonment. The report states that Ireland's restrictive laws create a heavy financial and emotional burden on women who are forced to find alternatives either secretly or abroad. In July 2009, Amnesty International (AI) [advocacy website] called on Nicaragua to end its total ban on abortions [JURIST report], saying that the lack of an exception for the mother's health has caused numerous deaths. AI also called for the country to eliminate severe criminal punishments for those who seek or perform abortions, saying that the penalties would often prevent women from receiving even non-abortion medical care. It also called for an exception allowing abortions in the cases of rape or incest. The group said that ban forces obstetricians to choose between medically necessary procedures and the law, and that it violates the UN Convention Against Torture, International Covenant on Civil and Political Rights [texts] and other treaties signed by the country.




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South Africa court sentences former INTERPOL president to 15 years
Dwyer Arce on August 3, 2010 11:28 AM ET

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[JURIST] A South African court on Tuesday sentenced former INTERPOL [official website] president and South African police chief Jackie Selebi [official profile; JURIST news archive] to 15 years in prison for corruption. Selebi was convicted of corruption [JURIST report] in July for receiving $170,000 in bribes from convicted drug smuggler Glenn Agliotti [Mail & Guardian profile], who was suspected of killing South African mining magnate Brett Kebble. Judge Meyer Joffe of the South Gauteng High Court, in sentencing Selebi, stated that he had lied and fabricated evidence [AP report], showing no remorse for his actions. Joffe also described him as an embarrassment to the country. Selebi's family members have alleged that he is a scapegoat used to protect corrupt officials nationwide. The Inkatha Freedom Party [party website], a South African political party, called the sentence [press release] "too lenient," continuing:
While the IFP welcomes today's sentencing, we believe that Mr Selebi's sentence is too lenient and he deserved a lengthier jail term. He was not only an embarrassment to the SAPS but to the country's image abroad because of his involvement with Interpol. The IFP is pleased that today's sentencing will repair some of the damage inflicted on the SAPS's public image by its former police chief. Moreover, we hope that the sentence will send out a clear message to all police officers and corrupt officials that corruption will not be tolerated and that no one is above the law, not even those with powerful political connections.
Selebi was freed following the sentencing on $2,700 bond pending appeal.

Selebi pleaded not guilty [JURIST report] at the beginning of his trial in October, claiming that the charges against him were fabricated in retaliation for his corruption investigation of two members of the South African National Prosecuting Authority (NPA) [official website]. The court rejected Selebi's defense of a conspiracy against him and found him guilty of granting favors to Agliotti in exchange for money and gifts totaling USD $156,000. A spokesperson for the ruling African National Congress [party website] party praised the South African judicial system [press release], stating that Selebi's conviction "clearly indicates that South Africa as a country is governed by laws that are applied without any fear or favour to anyone, regardless of their standing." Selebi was suspended from his police post and forced to resign as INTERPOL president after the NPA announced the impending charges [JURIST reports]. The NPA has alleged that Selebi ignored Agliotti's drug trafficking and warned Agliotti that he had been identified in a murder investigation.




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Former Rwanda official Ntawukulilyayo sentenced to 25 years for 1994 genocide
Daniel Richey on August 3, 2010 10:33 AM ET

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[JURIST] Former Rwandan regional administrator Dominique Ntawukulilyayo was sentenced [press release] by the International Criminal Tribunal for Rwanda (ICTR) [official website] Tuesday to 25 years in prison for his role in the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive]. Ntawukulilyayo, the former sub-prefect of the southern district of Gisagara, was indicted [text, PDF; case materials] in 2005 on charges of genocide, complicity in genocide and public incitement to commit genocide for falsely promising protection to ethnic minority Tutsi refugees. Ntawukulilyayo reportedly sent the refugees to Kabuye Hill, then transported soldiers to the site to slaughter the refugees upon their arrival. ICTR Trial Chamber III found him guilty of genocide, acquitting him of complicity and incitement charges.

The ICTR continues to indict suspects for crimes occurring during the 1994 Rwandan conflict between Hutus and Tutsis in which approximately 800,000 people, primarily Tutsis, died. Last month, Rwandan pastor Jean-Bosco Uwinkindi [Hague Justice profile; case materials] pled not guilty [JURIST report] to multiple similar genocide charges before the ICTR. Last October, Ugandan officials apprehended [JURIST report] another highly-sought suspect, former Hutu intelligence chief Idelphonse Nizeyimana [BBC profile; case materials]. Nizeyimana, who pled not guilty [JURIST report] to four genocide counts [indictment, PDF], still awaits trial. Nizeyimana was one of four twop accused sought by the ICTR in order to complete its mission. In June, UN Security Council [official website] extended the terms [press release] of ICTR trial judges to December 31, 2011, and appellate judges to December 31, 2012. In March 2009, UN Secretary-General Ban Ki-Moon pledged his ongoing support [JURIST report] for the ICTR and stressed that the international community must continue to combat genocide.




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California high court rules affirmative action ban constitutional
Dwyer Arce on August 3, 2010 8:56 AM ET

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[JURIST] The Supreme Court of California [official website] on Monday held 6-1 [opinion, PDF] that a state ban on preferential hiring practices for minorities and women does not violate the federal Constitution [text]. Justice Kathryn Werdegar, writing for the majority, held that the ban on giving preferential treatment in the awarding of public contracts under the Article I, Section 31 of the California Constitution [text] did not violate the Equal Protection Clause [Cornell LII backgrounder] of the US Constitution. Despite the ban, passed as Proposition 209 by voters in 1996, the city of San Fransisco had continued to enforce a local ordinance requiring the preferential treatment of minorities and women in awarding public contracts. The city, citing the US Supreme Court [official website] cases of Washington v. Seattle School Dist. No. 1 and Hunter v. Erickson [texts] had argued that Section 31 was unenforceable because it violated the political structure doctrine by removing the ability of women and minorities to seek redress to discrimination from local authorities. The court held that in those cases, equal protection principles that were required by the US Constitution were being violated, whereas here the city policy was not similarly required, stating:
Most importantly for present purposes, section 31 prohibits race- and gender-conscious programs the federal equal protection clause permits but does not require. ... [S]ection 31 categorically prohibits discrimination and preferential treatment. ... Section 31 poses no obstacle ... to race- or gender-conscious measures required by federal law or the federal Constitution. ... [T]he [Equal Protection] clause renders racial classifications presumptively invalid, regardless of purported motivation, and tolerates them only when narrowly tailored to serve compelling governmental interests. Section 31 is consistent with equal protection, under this analysis, because "[a] law that prohibits the State from classifying individuals by race or gender a fortiori does not classify individuals by race or gender," and because the federal Constitution does not oblige the state to permit racial classifications the federal Constitution itself does not require. "That the Constitution permits the rare race-based or gender-based preference hardly implies that the state cannot ban them altogether."
The court also noted that the city had made an identical argument to the US Court of Appeals for the Ninth Circuit [official website] in Coalition for Economic Equity v. Wilson [text], which also failed. The court went on to remand the case to determine if the city's preferential treatment policy is required under the Equal Protection Clause to remedy the city's own past discrimination. Justice Carlos Moreno, the lone dissenter, argued that Section 31 did violate the political structure doctrine because it "singles out a racial issue for special treatment inasmuch as it draws a distinction between groups seeking beneficial legislation on the basis of race and sex."

In April 2009, California Attorney General Edmond Brown [official website] argued in a letter to the court [JURIST report] that portions of Proposition 209 may violate the US Constitution. Brown sent the letter regarding the case decided on Monday, Coral Construction v. City and County of San Francisco [case materials]. The city policy had been struck down [JURIST report] by the San Francisco Superior Court [official website] in 2004 as being in violation of Proposition 209. In his letter, Brown said portions of the amendment may be unconstitutional under the Equal Protection Clause, "creat[ing] an unequal political structure based on race and gender that is not narrowly tailored to achieve a compelling governmental interest[,] ... accomplish[ing] the very evil it purported to eliminate, viz. racial and gender discrimination."




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Michigan firm threatens to sue Canada company for pipeline spill
Ann Riley on August 3, 2010 8:13 AM ET

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[JURIST] A Michigan public interest law firm, Great Lakes Environmental Law Center (GLELC) [official website], on Monday sent a notice of intent to file suit [text, PDF; GLELC release] to Enbridge, Inc. [corporate website], the Canadian owner of the Michigan pipeline that ruptured [AP report] on July 26 and dumped hundreds of thousands of gallons of oil into the Kalamazoo River. Enbridge estimates [response website] that 840,000 gallons of oil have spilled, while the Environmental Protection Agency (EPA) [official website] believes more than one million gallons may have leaked into the river [press release]. While the leak has stopped, it has affected marshlands, residential areas, farmlands, businesses, and more than 25 miles of the river. GLELC is alleging that Enbridge violated the Clean Water Act (CWA) [text] by releasing oil and hazardous substances into navigable waters of the US, and negligently ignored warnings by the US Pipeline and Hazardous Materials Safety Administration [official website]. If found liable, Enbridge could be subject to a civil penalty of $32,500 per day of violation or up to $1,100 per barrel of oil, for a total estimated by GLELC to be around $100 million. GLELC said that it would file the suit unless Enbridge is able to reach a settlement on the spill within 60 days. Also on Monday, the EPA received $13 million to fund the government's response [press releases] to the oil spill.

Michigan's leak comes just months after the BP Deepwater Horizon oil spill [BBC backgrounder, JURIST news archive], where more than 120 million gallons of oil spilled into the Gulf of Mexico, surpassing the Exxon Valdez oil spill [JURIST news archive] as the worst in US history. In July, a lawsuit [JURIST report] was filed against BP in a Louisiana state court alleging that the company's negligent actions led to the oil spill and that BP was also negligent in its handling of the cleanup. Also in July, a federal judge refused to reinstate [JURIST report] a six-month drilling moratorium [JURIST report] issued in May by the Obama administration. The Obama administration has since issued a new drilling moratorium [JURIST report] affecting only specific types of drilling equipment, which is also being challenged in federal court. The BP spill has prompted international inquiries into drilling regulations. Earlier in July, EU Energy Commissioner Guenther Oettinger [official website] indicated that the EU would consider limiting the depth [JURIST report] of offshore deepwater oil drilling [JURIST news archive] or placing a temporary moratorium on deepwater drilling. In June, the UK announced that the government will increase inspection [JURIST report] of North Sea oil rigs and monitoring of offshore compliance and safety standards. The UK government also established the Oil Spill Prevention and Response Advisory Group [official website] to conduct a review of the country's ability to prevent and respond to oil spills.




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